Each appeal can be different, but here are the common steps along the process of a direct appeal in a criminal case:
- Notice of Appeal – this is the document that initiates the appeal and transfers jurisdiction from the trial court to the appellate court; mainly governed by Idaho Appellate Rule 17
- Settling the record – this occurs once the Clerk’s Record and any transcripts have been initially lodged with the appellate court and the parties; there is a 28 day period to review the record and make any objection. Otherwise, the record is deemed settled if no one objects after the 28 days have elapsed. See Idaho Appellate Rule 29
- Setting the briefing schedule – after the appellate record is settled, the Idaho Supreme Court will issue a briefing schedule that includes the due dates for the Appellant’s Brief, the Respondent’s Brief, and any Reply Brief that may be filed in the case. The timeline for filing the briefs is generally governed by Idaho Appellate Rule 34(c).
- Briefs on appeal – the content and arrangement of the briefs on appeal is governed by Idaho Appellate Rule 35.
- Appellant’s Brief – This is the initial set of written arguments in the appeal. The statement of the issues presented defines the scope of what rulings are being challenged on appeal or what legal issues you are asking the appellate court to resolve. The issues can be listed in a concise way and will be deemed to include “subsidiary” issues that are fairly included within the main issue. You must also support these issues with argument, citations to the relevant portions of the record, and with legal authority. The failure to raise an issue adequately in the initial Appellant’s Brief may prevent you from addressing the claim in later proceedings (such as in a Reply Brief or at oral argument). Because of this, if you are the Appellant, it is exceedingly important to make sure to frame your arguments within the Appellant’s Brief with care, and with an eye towards completeness.
- Respondent’s Brief – In this brief, the party who is not the person appealing the order responds to any issues that were raised in the Appellant’s Brief. If there are serious deficiencies in the appellate record, briefing, or other significant procedural defects that may preclude the Appellant from being entitled to relief on appeal, those contentions must also be included within the Respondent’s Brief. Just as the Appellant, the Respondent is generally not permitted to raise new issues or arguments that were not included within the Respondent’s Brief. In addition, the claims or responses within this brief must be supported by argument, citation to the record, and legal authority.
- Reply Brief – after the Respondent’s Brief has been filed, the Appellant has the option of filing a Reply Brief to respond to the arguments made by the Respondent on appeal.
- Court assignment – once the briefing of the parties has been submitted, these briefs will be considered by the Idaho Supreme Court to determine whether the Court wants to retain the case, or instead will assign the case to the Idaho Court of Appeals. While this decision is discretionary with the Idaho Supreme Court, the general criteria that the Court applies to this decision on initial case assignment is set out in Idaho Appellate Rule 108.
- Oral argument – this is the hearing where the parties may appear before the appellate court to discuss the arguments raised within the appeal and to answer any questions that the Court may have. In Idaho, usually all of the members of the Idaho Supreme Court will be present for the oral argument and will deliberate on the decision in the case, although only one of the five Justices will write the main opinion. The Idaho Court of Appeals sits on panels of three judges for each case. Since there are four total members on the Idaho Court of Appeals, the specific Judges who will be part of the panel deciding the case rotate. Oral argument is not strictly required in an appellate case, and may be waived by the parties or by order of the appellate court. If oral argument is waived, then the panel who is deciding the case will deliberate and make its decision based on the briefing alone.
Each side is given 30 minutes total to present their arguments. The Appellant goes first and, assuming there is any time remaining, may also present a rebuttal argument at the end. The Respondent presents its oral argument after the initial presentation made by the Appellant. The date and time for oral argument is set by the Idaho Supreme Court, and is usually provided to the parties at the same time as they are notified of the appellate court assignment.
- Decision on appeal – after the oral argument (if any), the court will deliberate on the issues of the case and arguments of the parties, and one member of the Court will write the opinion that determines the merits of the claims. There is no real rule of thumb for how long it will take for the appellate court to issue an opinion. That being said, the time frame between argument and the release of the court’s opinion may be significantly longer if it is a case with a complex record of the trial proceedings and/or multiple, nuanced issues.
- Remittitur – unless a petition for review or petition for rehearing is granted, the appellate decision usually becomes final 21 days after the opinion is released. Once the opinion is final, the Clerk of the Supreme Court will issue a document called the “remittitur” with the trial court. If the opinion reverses the trial court and/or directs the court to take additional action, the remittitur operates to transfer jurisdiction over the case back to the trial court.