Procedure
Trials, at which witnesses and other evidence are presented to a jury or judge in order to determine the truth or facts regarding a particular case, are held only in courts with original jurisdiction, i.e., courts in which a lawsuit is originally (and properly) filed and which have the power to accept evidence from witnesses and make factual and legal determinations regarding the evidence presented. Such trial courts also determine punishments (in criminal cases) and remedies (in civil cases). Because the courts of appeals possess only appellate jurisdiction, they do not hold trials. Instead, appeals courts review decisions of trial courts for errors of law. Accordingly, an appeals court considers only the record (that is, the papers the parties filed and the transcripts and any exhibits from any trial) from the trial court, and the legal arguments of the parties. These arguments, which are presented in written form, and can range in length from dozens to hundreds of pages, are ironically known as "briefs". Sometimes lawyers are permitted to add to their written briefs with oral arguments before the appeals judges. At such hearings, only the parties' lawyers speak to the court.
The rules that govern the procedure in the courts of appeals are the Federal Rules of Appellate Procedure. In a court of appeals, an appeal is almost always heard by a "panel" of three judges who are randomly selected from the available judges (including senior judges and judges temporarily assigned to the circuit). Some cases, however, receive an en banc hearing. Except in the Ninth Circuit Courts, the en banc court consists of all of the circuit judges who are on active status, but it does not include the senior or assigned judges (except that under some circumstances, a senior judge may participate in an en banc hearing when he or she participated at an earlier stage of the same case).
Many decades ago, certain classes of federal court cases held the right of an automatic appeal to the Supreme Court of the United States. That is, one of the parties in the case could appeal a decision of a court of appeals to the Supreme Court, and it had to accept the case. The right of automatic appeal for most types of decisions of a court of appeals was ended by an Act of Congress, the Judiciary Act of 1925. This law was urged by Chief Justice William Howard Taft, and it also reorganized many other things in the federal court system.
The current procedure is that a party in a case may apply to the Supreme Court to review a ruling of the circuit court. This is called petitioning for a writ of certiorari, and the Supreme Court may choose, in its sole discretion, to review any lower court ruling. In extremely rare cases, the Supreme Court may grant the writ of certiorari before the judgment is rendered by the court of appeals, thereby reviewing the lower court's ruling directly. For example, this procedure was used in the Watergate scandal-related case, United States v. Nixon, 418 U.S. 683 (1974), and in the 2005 decision involving the Federal Sentencing Guidelines, United States v. Booker, 543 U.S. 220 (2005).
A court of appeals may also pose questions to the Supreme Court for a ruling in the midst of reviewing a case. This procedure was formerly used somewhat commonly, but now it is quite rare. The Second Circuit, sitting en banc, attempted to use this procedure in the case United States v. Penaranda, as a result of the Supreme Court's decision in Blakely v. Washington 28 U.S.C. ยง 1254(2), but the Supreme Court dismissed the question after resolving the same issue in another case, which had come before the Court through the standard procedure. The last instance of the Supreme Court accepting a set of questions and answering them was in a case in 1982.
A court of appeals may convene a Bankruptcy Appellate Panel to hear appeals in bankruptcy cases directly from the bankruptcy court of its circuit. As of 2008, only the First, Sixth, Eighth, Ninth, and Tenth Circuits have established a Bankruptcy Appellate Panel. Those circuits that do not have a Bankruptcy Appellate Panel have their bankruptcy appeals heard by the District Court.
Court of appeals decisions, unlike those of the lower federal courts, establish binding precedents. Other federal courts in that circuit must, from that point forward, follow the appeals court's guidance in similar cases, regardless of whether the trial judge thinks that the case should be decided differently.
Federal and state laws can and do change from time to time, depending on the actions of Congress and the state legislatures. Therefore, the law that exists at the time of the appeal might be different from the law that existed at the time of the events that are in controversy under civil or criminal law in the case at hand. A court of appeals applies the law as it exists at the time of the appeal; otherwise, it would be handing down decisions that would be instantly obsolete, and this would be a waste of time and resources, since such decisions could not be cited as precedent. " court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice, or there is statutory direction or some legislative history to the contrary." Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711-12 (1974).
However, the above rule cannot apply in criminal cases if the effect of applying the newer law would be to create an ex post facto law to the detriment of the defendant.
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