A Comparative Analysis of the Right to Appeal

By Marshall, Peter D. | Duke Journal of Comparative & International Law, Fall 2011 | Go to article overview
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A Comparative Analysis of the Right to Appeal

Marshall, Peter D., Duke Journal of Comparative & International Law


Trials are commonly treated as the embodiment of the criminal justice system. Public interest, reflected in--or driven by--media coverage, reaches its zenith at trial; verdicts command headlines. A casual observer could be forgiven for thinking that criminal proceedings invariably end with the entry of verdict and imposition of punishment. But where a defendant is convicted, the trial is often not the final stage in the criminal process. A convicted person generally has the right to appeal against, or seek review of, (1) conviction and sentence. (2) And there is no reason to think that a person who has elected to defend charges will not exercise this right. (3) Criminal appeals are thus a crucially important feature of the modern criminal process. Convictions cannot be treated as final until appeal rights have been either exhausted or waived.

Rights of appeal are increasingly ubiquitous. The ability to appeal against conviction and sentence is, in most jurisdictions, a matter of right, either statutory or constitutional. But this has not always been the case. The right to appeal is a comparatively recent addition to the common law criminal process. For centuries, these legal systems, in stark contrast to those of continental Europe, did not provide a means by which defendants could effectively challenge their convictions.

Despite being both important and prevalent, however, very little scholarly attention has been given to the subject of criminal appeals. (4) Texts on domestic criminal procedure often deal with appeals almost as an afterthought. Comparative studies are virtually non-existent.

This article applies a comparative lens to the modern right to appeal against conviction and sentence. (5) It argues first that, despite very different historical foundations and institutional structures, there has been considerable convergence in how criminal appeals are conceptualized in common law and European civil law jurisdictions. A number of explanations for this convergence are apparent, including the emergence of modern human rights law, changes in trial processes, and technological advances. Second, the article's focus turns to the substance of the right, particularly the scope of review. It goes on to argue that, although certain differences remain, the jurisdictions covered reveal the development of a shared understanding of the substance of the right. In particular, this article submits that the right to appeal is best understood as requiring a state to provide criminal defendants with the opportunity to access a fair process that permits adequate and effective review of one's conviction.

After setting out the functions of criminal appeals in Part I, Part II considers the origins of the right to appeal at common law and in continental Europe. Part III then explains the contrasting institutional frameworks within which appeals exist. In Part IV, the ways in which different jurisdictions, both national and multilateral, conceive of the right are surveyed. Potential reasons for the convergence in how the right to appeal is conceptualized are then discussed in Part V. Finally, Part VI addresses the extent of this convergence, and examines the substance of the modern right to appeal.


At the broadest level of generality, appeals are concerned with correcting error. Mechanisms for error correction are an important feature of developed legal systems: "Developed legal systems make provision for correcting error. Error--in the sense of good faith differences of opinion about finding the facts or about formulating or applying rules of law--is expected as a regular occurrence." (6) Error correction, as an overarching value, in turn serves a number of distinct functions.

The primary function of the modern right of appeal is to protect against miscarriages of justice. As will be seen, the driving force behind the establishment of this right in England was concern over the incidence of wrongful convictions.

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