Victim Advocacy Program
The Victim Advocacy Program is a service of the
attorney general’s office that assists victims of
crimes during the appeals stage. It keeps victims
informed and involved throughout the appellate
process and can also help provide assistance
from other sources.
The information below is part
of the assistance offered by the Victim Advocacy
Program. It answers many questions about
criminal appeals and serves as a guide though
the process.
What victims should know about
the appeals process
What is the Appeals Process?
The appeals stage of a criminal case includes all legal
proceedings during which a defendant tries to overturn a
conviction. The defendant’s goal is to gain freedom, a new
trial, or a reduced sentence.
What is an Interlocutory Trial?
Most appeals are initiated by criminal defendants and occur
after a conviction and sentencing. But occasionally, an
appeal of a legal issue may be addressed before the actual
trial of a case begins. These are known as interlocutory
appeals. Interlocutory appeals are permitted when the legal
issue involved may determine the outcome of the case.
How long does the Appeals Process take?
The appellate process can be lengthy and complex because
several courts might eventually review the case. The entire
process can take years to complete before the case will be
considered final.
What is the difference between a Trial and an Appeal?
A trial can result in the conviction and sentencing of the defendant.
The county prosecutor is the state’s representative
who brings the charges against the defendant and presents
the case in court at the county level.
The primary function of the jury (or the judge in a bench
trial) is to determine which party’s version of the incident
will be accepted. At that point, the facts are settled for the
life of the case unless there is a retrial – this is an important
fact to remember.
An appeal, on the other hand, is a review of a trial. In an
appeal, the defendant seeks to prove legal errors were
made that are substantial enough to justify a reversal of the
conviction or a reduction of the sentence. The appellate
court will not weigh the evidence or try the facts of the case
again but will limit its review to legal issues.
Who is the Appellant and who is the Appellee?
The party that files the appeal is the appellant, and the
party that responds to the appeal is the appellee. In the
majority of cases, the criminal defendant is the appellant,
and the state is the appellee.
The steps of the appeals process
The appeals process takes time. For victims of crime, that can be
discouraging. But knowing what to expect next can help make the process more understandable. The following information is an overview of the appeals process.
- Initiating the Appeal
A direct appeal is started by filing a “Notice of Appeal” in the trial court
within 30 days of sentencing. A direct appeal is generally the first appellate
review of the case. Cases involving a sentence of death or life without
parole are taken directly to the Supreme Court of Indiana for decision.
All other cases are taken to the Court of Appeals. There are timelines for
the preparation and filing of the record of the trial, and it may take 90
days or longer for completion.
- Briefing
After the record is completed and filed, the appellant (generally the
criminal defendant) files the “Brief of Appellant,” a written document
explaining the legal errors believed to have been committed during the
trial that justify overturning a conviction or reducing the sentence. The
appellee (generally the state) then responds by filing a “Brief of Appellee.”
Finally, the appellant is given the opportunity to file a “Reply Brief”
in response to the arguments made by the appellee. The state’s briefs
are prepared and filed by the deputy attorney general assigned to the
Appeals Division of the Attorney General’s Office.
- Oral Argument
In all capital cases (cases in which the death penalty has been imposed)
and in a limited number of other cases, the appellate court may require
the parties to appear before the court to argue their cases in person.
The court may ask questions of the attorneys during the presentations;
however, no evidence is taken and only the attorneys are permitted to
address the court. The state’s case is typically presented by the deputy
attorney general who wrote the state’s brief.
- Decision
Following the filing of the parties’ briefs and after any oral arguments,
the case awaits the decision of the appellate court. The court will decide
the case by issuing an “opinion,” which is a discussion of the legal
issues raised by the parties and the court’s resolution of those issues.
On the basis of those issues, the appellate court will decide whether to
“affirm” or “reverse” the judgment of the trial court.
If the court affirms the trial court’s judgment, the conviction is upheld.
If the appellate court reverses the trial court, then the conviction is overturned,
and the case is remanded (meaning the trial court must either
release, retry, or resentence the defendant, or revise the conviction).
Depending on the separate legal issues, the appellate court may modify
the conviction or sentence.
- Rehearing, Transfer, and Certiorari
If the appeal was heard first by the Court of Appeals, the losing party
may petition the Court of Appeals to rehear the case, pointing out errors
in the opinion. Following the decision of the Court of Appeals on the
“Petition for Rehearing,” the party who loses the rehearing may ask the
Supreme Court to take the case if specific, limited grounds are present.
This is known as a “Petition to Transfer.” A party losing in the Court of
Appeals may file a Petition to Transfer with the Supreme Court without
first filing a rehearing in the Court of Appeals.
The Supreme Court considers the Petition to Transfer (and any opposition
to it) and decides whether to take the case. Review by the Supreme
Court is discretionary, which means the Supreme Court is not required
to review the cases already decided by the Court of Appeals, and such
review is rare. At its own option, the Supreme Court may direct the parties
to “rebrief” the case, and may order additional oral argument. The
Supreme Court’s decision on transfer, either by denying review, or taking
and deciding the case, is final.
If the case was heard first by the Supreme Court (which means a sentence
of death or life without parole was imposed), the losing party may
ask the Court to reconsider its decision by filing a Petition for Rehearing.
The Supreme Court’s decision on rehearing is final.
The direct appeal process in Indiana is concluded once the Supreme
Court has made its final decision on transfer or rehearing. However, the
appeal may conclude earlier if neither party petitions for a rehearing or
transfer within the time allowed by the appellate rules.
Once the direct appeal process in Indiana is concluded, the losing party
may ask the Supreme Court of the United States to review the case. In order to get this review, the losing party must convince the U.S. Supreme Court that the trial court committed
a federal constitutional error requiring reversal, and the Indiana appellate
courts did not correct it. The request to the U.S. Supreme Court to
review a case is known as a “Petition for a Writ of Certiorari” and is
entirely discretionary by the U.S. Supreme Court, which means the Court
is not required to take the case. Such review is extremely rare. The
U.S. Supreme Court’s refusal to review the case concludes the direct
appeal process.
Additional types of reviews and appeals
After the direct appeal stage is completed, or if a direct appeal was not
pursued, defendants can have convictions and sentences reviewed a
second time by the state court system through a “Petition for Post Conviction
Relief” or “PCR Petition.” A PCR Petition is filed in the court that
originally convicted and sentenced the defendant and allows legal issues
to be raised that were either unknown or unavailable to the defendant at
the time of direct appeal.
The state is usually represented at this stage by the county prosecutor,
although the attorney general’s office represents the state if the PCR
Petition is a capital case. The trial court may hold a hearing on the PCR
Petition and take evidence, but the court, not a jury, decides the case.
If the court grants the PCR Petition, it may modify the conviction and/or
sentence, order a new trial, or release the defendant. If the court denies
the PCR Petition, the conviction and sentence stand.
The losing party may then appeal, and the Attorney General represents
the state from that point on. PCR Petitions of convictions involving the
death penalty or life without parole are appealed directly to the Supreme
Court of Indiana; all other appeals are taken first to the Court of Appeals.
As with direct appeals, a party may attempt to appeal the PCR case all the
way to the U.S. Supreme Court. The decision by the U.S. Supreme Court
will terminate the PCR stage of the appeal process.
Once a defendant has made a direct appeal and completed PCR appeals, all
state appellate procedures have been exhausted. But a review of the conviction
and/or sentence by federal courts may still be requested. A defendant initiates
federal review by filing a “habeas corpus” petition with the U.S. District Court
(the trial court in the federal system) in an attempt to show that the conviction
or sentence is a violation of constitutional rights.
The attorney general’s office represents the state in habeas corpus
actions. The Federal District Court will decide the petitions without a
jury and usually on the basis of the written submissions of the parties. If
the District Court denies the habeas corpus petition, the conviction and
sentence stand. If the District Court grants the petition, it may modify or
vacate the conviction and/or sentence. The losing party may then make a
federal appeal to the U.S. Court of Appeals in Chicago, which has similar
briefing procedures to the state system. The party that loses in the U.S.
Court of Appeals may petition the U.S. Supreme Court to accept such an
appeal. If the U.S. Supreme Court accepts the case for review, it will be
briefed and argued in Washington, and the court will issue its decision
in the form of a written opinion.
Once the Supreme Court has spoken in the case, by refusing to hear the
case or issuing an opinion on the legal issues, the appellate process has
been completed.
Additional victim services
The Indiana Constitution gives victims of crime the right to be “treated
with fairness, dignity and respect throughout the criminal justice process.”
The Indiana Attorney General’s Victim Advocacy Program upholds
that right in a number of ways:
Understanding the Criminal Justice System
Our criminal justice system consists of many procedures and mechanisms
that can be complicated and confusing. As part of that system, the
process of appeals is lengthy and complex. Victim advocates are available
to address questions regarding the appellate process to help
victims gain a better understanding of how the process operates.
Notification of Proceedings
The attorney general’s office notifies victims of court proceedings and
outcomes in the appellate process. Advocates can also keep victims informed
of filings, oral arguments and decisions. However, contact from
victim advocates may be infrequent depending on action in the case. For
victims to stay informed, it is important that current address information
be on file with the attorney general’s office.
Victim Service Referrals
Recovering from the trauma of a crime can be extremely difficult. However,
a network of victim service providers is available to assist victims
with the emotional consequences of crime. Our advocates can inform
victims of services in their communities that can help in many ways.
Common questions
- Why does the defendant have the right to appeal?
The Constitution of Indiana gives everyone the right to appeal. Federal
and state laws give defendants the additional right to have their convictions
and/or sentences reviewed by state post-conviction and federal
habeas corpus petitions.
- Why wasn’t I contacted about the appeal?
The Attorney General’s Victim Advocacy Program requests information
about victims from the victim advocate program at the county level and
from the Department of Correction Victim/Witness Services. Victims
must register with their local prosecutor’s office and the Department of
Correction plus provide their current address, contact numbers, name
changes, etc. If the local victim advocates of the Department of Correction
do not have this information, the Attorney General’s Victim Advocacy
Program may be unable to learn about or contact the victims on appeal.
Also, the attorney general’s program began in October of 1997, and
victims in cases appealed before that time may not be known. However,
once the attorney general’s office learns about a victim, he or she will
have access to victim advocacy services.
- Can I give a victim’s statement on appeal?
Unfortunately, no. An appellate court will examine the trial and sentence
only for legal errors. No new evidence or information may be submitted.
- Can I attend the hearing?
Generally, there is no hearing on an appeal. An appeal is conducted
mostly in writing, with the attorneys filing briefs that the appellate court
reads and considers. The appellate court then makes its decision by
issuing a written opinion discussing and deciding the legal issues raised
by the attorneys in their written briefs. In all death penalty cases, but
rarely in other cases, the appellate court will hear an oral argument
where the attorneys orally present their cases to the appellate court,
usually one half hour for each side. Only attorneys are permitted to
make presentations to the court, although victims are permitted to attend
and observe. A defendant is also permitted to attend if he or she is not
incarcerated at the time of the oral argument.
- Why does it take so long for a final decision?
There are more than 1,500 appeals filed each year, and each must be
heard and decided by the appellate courts. In addition, there are several
stages in the appellate process. For example, in the direct appeal stage,
the case may be heard by the Indiana Court of Appeals. The losing party
may then appeal to the Indiana Supreme Court. From there, the losing
party may appeal to the Supreme Court of the United States, which completes
the direct appeal phase.
At that point, the defendant may seek another review of the conviction in
the state courts by filing a petition for post-conviction relief in the original
trial court of conviction, alleging errors and issues that were either
unavailable or unknown at the time of the first direct appeal phase. The
losing party in the trial court may then appeal the decision to the Court
of Appeals, and then again to the Indiana Supreme Court, and then again
to the U.S. Supreme Court. Once the post-conviction phase of the appellate
process is completed, a defendant may seek review of a conviction
in the federal court—which is a separate court system. A habeas corpus
petition is filed in the U.S. District Court (the federal trial court), which
is then opposed by the state. Once the District Court decides the case,
the losing party may take any appeal to the U.S. Court of Appeals in Chicago,
where the case is briefed and heard as in the initial direct appeal
phase. The party losing in the U.S. Court of Appeals may then seek to
appeal to the U.S. Supreme Court in Washington, D.C. The several layers
of courts and the complexity of the legal issues involved all contribute to
the length of the entire process before any appeal may be concluded and
a conviction and sentence considered final.
- What is the difference between the county victim advocate
program and the Attorney General’s Victim Advocacy Program?
The county victim advocate works with victims at the trial level. A victim
advocate for the attorney general’s office works as a liaison during the
criminal appeal process. Advocates at this level act as liaisons between
the deputy attorney general, prosecutors, county victim advocate, state
agencies, other agency services and victims. The attorney general’s
advocates review each case on appeal and request victim information
from the county victim advocate once a defendant has filed an appeal.
These advocates also correspond with the county victim advocate and the
Indiana Department of Corrections Victim/Witness Services and victims
via telephone, e-mail and letters.
The attorney general’s victim advocates provide information regarding
victim issues and the appellate process. They also attend court proceedings
on the state and federal levels on an as-needed basis.
- Will the defendant get out of jail or prison during the appeal?
Not generally. The defendant usually remains in jail or prison while the
appeal proceeds. However, in rare cases a defendant may be released on
bond pending the appeal.
- Where is the defendant located in prison?
A victim should always contact the Indiana Department of Correction
Victim/Witness Services at 317-232-1756 or 800-447-5604 for the
defendant’s location.
- How can I file for violent crime compensation funds?
The crime must have taken place in Indiana and been reported to the
police within 48 hours. Victims or survivors must have been cooperative
in the investigation and prosecution of the crime, have out-of-pocket
expenses of a least $100 and an application for benefits must have been
filed with the Violent Crime Compensation Office no later than 180
days for sex crimes and two (2) years for all other violent crime. Local
county victim advocates should have the necessary applications. Also, the
advocate will assist victims in completing and filing the application. If
there is no advocate in your county, contact the Violent Crime Compensation
Office at 317-232-0157 or 800-353-1484 (this service is
provided for victims only).
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