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After a criminal conviction, a person may be prepared to appeal. In fact, he or she may be ready with new evidence of innocence or new ways to present old evidence. However, the legal system makes it difficult to appeal on the basis of innocence.

What is much more likely to succeed is an appeal on a basis such as technical error. For example, someone could present evidence that police mishandled the case by forcing confessions. Perhaps he or she could argue that the defense attorney was asleep for most of the trial, or that prosecutors concealed evidence. But an argument of innocence is unlikely to get far.

The trial is to determine innocence

One reason that courts rarely consider appeals on the basis of innocence is that the trial should have determined that issue. The idea: It is not the job of appeals judges to retry a defendant. However, it is the job of appeals judges to ensure that the defendant received a fair trial. Thus, if a defendant can show that there was at least one major mistake or mishandling of the case at trial, it could be grounds for a retrial or a reduction in sentence.

That said, there have been cases where something went wrong, perhaps a judge giving the jury erroneous instructions, but it was deemed minor in that it did not influence the outcome of a trial.

What if actual innocence is an issue?

It so happens that many times, lawyers can review trial transcripts and the like to come up with reasonable grounds for appeal, no matter the crime in question. However, there are cases where the judges, lawyers, witnesses and other involved parties seem to have done their due diligence yet the verdict was unjust.

When actual innocence is an issue and there do not seem to be grounds for appeal, it can help to have another lawyer review the case to see if the original attorney missed some grounds for appeal. Failing that, the clemency process can exonerate someone convicted of a crime.