Government Appeals in Criminal Cases: The Myth of Asymmetry

This article challenges the myth that the government cannot protect the public interest because its access to appellate review is circumscribed. In fact, careful examination reveals that government access to appellate review in criminal cases is more extensive today that at most times in the history of the country. Since 1971, in federal cases, the government has been able to challenge a wide range of trial court ruling on appeal. The government can challenge other rulings through petitions for writ of mandamus. These two avenues to appellate review permit the government to raise many and diverse legal questions. Some questions nevertheless remain insulated from appellate review either because they arise in a trial that ends in acquittal or an improvidently ordered mistrial or because they simply never ripen into appealable issues. The article argues that, to the extent a problem of asymmetry thus remains, the courts and the government should take steps to reduce the impact of that residual asymmetry. First, both the court and the government should adopt procedural approaches that support the government's access to appellate review; wherever possible, issues should be resolved before trial or after verdict, thus allowing the government to appeal the ruling. Second, when the trial court engages in bad faith manipulation, granting the defendant an acquittal calculated to preclude government appeal, the appellate courts should entertain government arguments to recharacterize the trial court's ruling, permitting government appeal. Finally, recognizing that some questions can only be reached through the use of mandamus, the government should pursue that avenue more often, and the appellate courts should be more receptive to challenges brought through petitions for writs of mandamus.