Alexandria, VA criminal defense attorney Chris Leibig talks about the biggest challenges faced in criminal appeals. In discussing the challenges of winning a criminal appeal, he notes two primary factors that make it particularly difficult. While the work itself—analyzing the record and applying the law in a meticulous, detail-oriented manner—is demanding, the legal standards for appellate success create significant obstacles.

First, most trial court rulings are reviewed under the “abuse of discretion” standard. This means that even if an appellate court believes a trial judge was wrong—or even very wrong—an error will only be recognized if the ruling was clearly and profoundly mistaken. Consequently, many poor rulings survive appellate review.

Second, the “harmless error” rule further limits appellate relief. Under this principle, an appellate court can acknowledge that a trial judge made one or multiple errors, yet still deny a new trial if the remaining evidence supports the conviction. In other words, an error—even a significant one—may be deemed harmless if the overall record indicates the outcome likely would have been the same.

Because of these rules, only certain types of errors are likely to succeed on appeal. Errors that affect fundamental aspects of the case, such as improper jury selection or significant mistakes in jury instructions, are rarely considered harmless and therefore offer the strongest prospects for reversal. Selecting the right issues is essential; pursuing the wrong ones—even if technically valid—can result in a lost appeal.

He also emphasizes that many trial lawyers struggle with “making a record,” which is critical for appellate review. For example, if an objection is made to evidence on hearsay grounds, a lawyer must clearly explain what the evidence would have shown and why it is crucial to the case. Without such a proffer, even a clearly erroneous ruling may not support an appeal. Many lawyers simply move on, failing to preserve the issue for appellate scrutiny.

Additionally, he observes that lawyers often hesitate to object consistently during trial, either to avoid annoying the judge, disrupting the flow, or appearing combative. Each missed objection is a potential appellate issue lost permanently. In complex cases, this can be especially damaging: even a lawyer who performed brilliantly at trial may find the record insufficient to support an appeal because key objections were never preserved.

Overall, he underscores that appellate practice requires both strategic issue selection and careful attention to record-keeping. Without these elements, even strong legal arguments may fail to achieve reversal.