A defendant appeals his conviction on the grounds that evidence used at trial should not have been admitted. The appellate court agrees with the defendant; however, they hold that the defendant’s conviction will not be overturned. How is this possible? Give and explain an example.

Question

What will be an ideal response?

Answer 1

When an appeal is heard, the appellate court will either affirm or reverse the lower court’s decision to
convict the defendant. An appellate court decision to overturn the defendant’s conviction means not that
the defendant is acquitted and, if confined, set free, but that the defendant is entitled to a new trial. The
appellate court sends the case back to the trial court (i.e., “remands” the case) for further proceedings
consistent with its opinion. Essentially, the appellate court orders the lower court to “do it again the right
way.” The lower court then has the option of retrying the defendant or dismissing the charges. Consider
a situation in which an offender convicted of drug trafficking appeals his conviction to the state’s
intermediate appellate court, arguing that evidence used to convict him was obtained illegally and that
the judge therefore should have excluded it. The appellate court could rule that the trial judge erred when
he refused to suppress the evidence and that the offender’s conviction should therefore be overturned.
The case will then be sent back to the trial court. If the prosecutor wants to retry the case, she must do
so without the evidence that the appellate court has ruled inadmissible. If the case cannot be tried
without the evidence that was illegally seized by the police, the prosecutor may have little choice but to
dismiss the charges.