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    Colorado Law – The Appeal – Appealing A Case On the Sufficiency Or Weight of the Evidence

    Introduction – Often defendants reject plea bargains because they believe that – even if they lose at trial – they can appeal and there case dismissed.  This article – taken from a recent (2012) case explains the law and corrects that mistaken and very harmful and false belief.

    The False Promise Of A Successful Appeal After A Jury Verdict Of Guilty

    The experienced Colorado criminal defense lawyer will caution their client that “beating a case” on appeal is nearly impossible.  If the decision is made to take a case to trial – the strength of the defense needs to be clear and solid.  The client’s belief that, if they lose, they will get another “bite of the apple” on appeal – is not only erroneous – it is dangerous. The truth is almost every appeal of a verdict of guilty in a criminal case ends in affirming the verdict.  It is only a very rare occasion – anecdotally less than 10% –  that leads to a reversal of the verdict and a new trial.

    The belief that there was “not enough evidence” to support a verdict of guilty is explained next.

    Sufficiency Of The Evidence – Challenging The Quantum Of The Evidence Supporting A Jury Verdict.

    Standard of Review On Appeal – Sufficncy of the Evidence

    On appeal whether the evidence is sufficient to sustain a conviction is a question of law that is reviewed by the Colorado Court of Appeals is reviewed “de novo” meaning from the beginning – or from the start.

    The Court of Appeals must determine whether any rational trier of fact ( in most instances – a jury) might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt.

    The State Is Given A Head Start – The Evidence Is Presumed To Be Correct On Appeal

    The prosecution must be given the benefit of every reasonable inference that might be fairly drawn from the evidence.

    Here is the test in other words: The prosecution is entitled to the benefit of every reasonable inference that may fairly be drawn from the evidence, even if the record also contains evidence to the contrary.

    The determination of the credibility of the witnesses who testified at trial is solely within the province of the fact finder (the jury or – the judge if a jury is waived), and it is the fact finder’s function in a criminal case to consider and determine what weight should be given to all parts of the evidence and to resolve conflicts, testimonial inconsistencies, and disputes in the evidence. Id.

    An appellate court is not permitted to act as a fact finder and set aside a verdict because it might have drawn a different conclusion had it been the trier of fact.

    The Analysis

    Sufficiency and weight of the evidence as issues on appeal

    AMONG the issues that the defense may raise on appeal is the quality of the evidence adduced at trial.  Two related but distinct issues may be raised:

    1.that the trial evidence was legally insufficient;


    2.that the verdict of conviction was against the weight of the evidence.

    Sufficiency Of The Evidence

    That evidence adduced at a trial resulting in a judgment was not legally sufficient to establish the defendant’s guilt of an offense of which he was convicted… With sufficiency of the evidence, the appellate court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. Once again, the evidence must be viewed in the light most favorable to the people.

    Weight of the Evidence

    The kinds of determinations of reversal or modification deemed to be on the facts include, but are not limited to, a determination that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence. With weight of the evidence, the appellate court’s dispositive analysis is not limited to that legal test. 

    Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. 

    If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and relative strength of conflicting inferences that may be drawn from the testimony.


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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
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