Criminal Appeals and Procedural Due Process

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Procedural due process does not require states to allow appeals from criminal convictions, but does impose some requirements on appeals if a state chooses to authorize them. In an 1894 case, the Supreme Court opined,

An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review.1

The Court has since reaffirmed that holding.2 However, it has also held that, when a state does provide appellate review, it may not so condition the privilege as to deny it irrationally to some persons, such as indigents.3

While states may decline to allow traditional criminal appeals, they are not free to have no corrective process in which defendants may pursue remedies for federal constitutional violations. In Frank v. Mangum, the Court held that a conviction obtained in a mob-dominated trial violated due process: “if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law.” 4 The Court has stated numerous times that the Fourteenth Amendment requires some form of corrective process when a convicted defendant alleges a federal constitutional violation.5 To burden that process, such as by limiting the right to petition for a writ of habeas corpus, violates the defendant’s constitutional rights.6

The government has discretion to determine the means by which defendants can vindicate federal constitutional rights after conviction. The Court has explained that “[w]ide discretion must be left to the States” in this area:

A State may decide whether to have direct appeals in such cases, and if so under what circumstances. . . . A State may provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram nobis . . . or it may afford remedy by a simple motion brought either in the court of original conviction or at the place of detention. . . . So long as the rights under the United States Constitution may be pursued, it is for a State and not for this Court to define the mode by which they may be vindicated.7

If a state provides a mode of redress, a defendant must first exhaust that remedy. If he is unsuccessful, or if a state does not provide an adequate mode of redress, then the defendant may petition a federal court for relief through a writ of habeas corpus.8

When a state provides appellate or other corrective process, that process is subject to scrutiny for alleged unconstitutional deprivations of life or liberty like any other part of a criminal case. At first, the Court appeared to assume that, when a state appellate process formally appeared to be sufficient to correct constitutional errors committed by the trial court, the affirmance of a trial court’s sentence of execution was ample assurance that life would not be forfeited without due process of law.9 But, in Moore v. Dempsey, the Court directed a federal district court considering a petition for a writ of habeas corpus to make an independent investigation of the facts alleged by the petitioners, notwithstanding that the state appellate court had ruled against the legal sufficiency of the same allegations.10 In Moore and a subsequent case, Brown v. Mississippi,11 the Court declined to defer to decisions of state appellate tribunals holding that proceedings in a trial court were fair.

In a 2009 case, the Court held that the Due Process Clause does not provide convicted persons a right to post-conviction access to the state’s evidence for DNA testing.12 Chief Justice John Roberts, in a 5-4 decision, noted that forty-six states had enacted statutes dealing specifically with access to DNA evidence, and that the Federal Government had enacted a statute allowing federal prisoners to move for court-ordered DNA testing under specified conditions. Even the states that had not enacted statutes dealing specifically with access to DNA evidence must, under the Due Process Clause, provide adequate post-conviction relief procedures. The Court, therefore, saw “no reason to constitutionalize the issue.” 13

1: McKane v. Durston, 153 U.S. 684, 687 (1894). See also Andrews v. Swartz, 156 U.S. 272 (1895); Murphy v. Massachusetts, 177 U.S. 155, 158 (1900); Reetz v. Michigan, 188 U.S. 505, 508 (1903).
2: Griffin v. Illinois, 351 U.S. 12, 18 (1956); Ross v. Moffitt, 417 U.S. 600 (1974).
3: The line of cases begins with Griffin v. Illinois, 351 U.S. 12 (1956), in which it was deemed to violate both the Due Process and the Equal Protection Clauses for a state to deny to indigent defendants free transcripts of the trial proceedings, which would enable them adequately to prosecute appeals from convictions.
4: 237 U.S. 309, 335 (1915).
5: Moore v. Dempsey, 261 U.S. 86, 90, 91 (1923); Mooney v. Holohan, 294 U.S. 103, 113 (1935); New York ex rel. Whitman v. Wilson, 318 U.S. 688, 690 (1943); Young v. Ragan, 337 U.S. 235, 238–39 (1949).
6: Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945).
7: Carter v. Illinois, 329 U.S. 173, 175–76 (1946).
8: In Case v. Nebraska, 381 U.S. 336 (1965) (per curiam), the Court granted review in a case that raised the issue of whether a state could simply omit any corrective process for hearing and determining claims of federal constitutional violations, but it dismissed the case when the state in the interim enacted provisions for such process. Justices Thomas Clark and William Brennan each wrote a concurring opinion. For additional discussion of habeas review of state criminal convictions, see ArtIII.S1.6.9 Habeas Review.
9: Frank v. Mangum, 237 U.S. 309 (1915).
10: 261 U.S. 86 (1923).
11: 297 U.S. 278 (1936).
12: District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009).
13: 557 U.S. at 55. The Court also expressed concern that “[e]stablishing a freestanding right to access DNA evidence for testing would force us to act as policymakers . . . . We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when?” Id. at 74 (citation omitted).