Suppose two people, A and B, are accused of some criminal activity, and the court decides that A is to blame, while B is blameless.

Now, suppose that A knows that B is the one to blame, while he is innocent, and appeals. (B does not participate in the appeal because he was found innocent)

Suppose the court agrees and decides that B was the crime's actual perpetrator and removes the blame from A. Could they both be set free?

  • 1
    Yes. They could and would both be set free. (Well, B would already be free because he was acquitted.)
    – ohwilleke
    Jun 27, 2018 at 22:02

3 Answers 3


An appeals court does not re-try a case, so you cannot appeal a case just because you know you are innocent. You can appeal a case for various technical flaws in the original case, for example the court plainly made an error in applying the law, the law is unconstitutional, the prosecution was corrupt in certain ways, or there was in fact insufficient evidence to sustain a conviction. Appeals courts do not generally consider new evidence

If you discover new evidence, you might be able to file a petition for a Write of Actual Innocence. The court would not "decide" that B was the perpetrator, but they might agree that A is innocent. Since B has previously been found not guilty, B cannot be tried again, so he is not in jeopardy (because of the double jeopardy clause).

The answer would be different in a jurisdiction like Gabon or Italy, which have different legal systems from the US.

  • One can imagine a situation where what is described in the OP happened in the U.S. For example, suppose that the the conviction of two defendants is in a bench trial and the Judge explains that he is convicting A and not B based upon certain testimony or evidence, but the record on appeal shows that the judge misunderstood the evidence or took bad notes about the testimony, and the testimony that he thought was convincing enough to convict A was actually about B and he just wrote down the name wrong in his notes and then got it wrong in the final order convicting A and acquitting B.
    – ohwilleke
    Jun 27, 2018 at 22:06
  • 2
    "An appeals court does not re-try a case, so you cannot appeal a case if you know you are innocent." That's poorly worded. You can't appeal a case on the basis of asserting that you are innocent, but you most certainly can appeal a case if you are innocent. Jun 29, 2018 at 19:13
  • @Acccumulation : No. If you have no fresh evidence to put forward, and you have no procedural arguments to make (because, as can sometimes happen, the judge made no procedural mistakes at the original trial), then being innocent will do you no good. A common thread in Appeals cases, in most jurisdictions based on English common law, is that an Appellate court cannot re-try the case. In particular, in a trial by jury it is the jury who decide on the matter of guilt or innocence: an Appellate court will be very loath to substitute its view of the evidence for that of the jury who heard the case.
    – Ed999
    Nov 28, 2018 at 8:04
  • 1
    @Ed999 You don't seem to have read my comment very carefully. I was saying that the way "you cannot appeal a case if you know you are innocent" was worded, it's equivalent to "you can't appeal a case unless you are guilty", and that the correct statement is that asserting that you are innocent is not a valid basis for an appeal. Nov 28, 2018 at 15:31
  • @Ed999 the question was edited in response to Acccumulation's comment. It now says "... just because you are innocent" but it originally said "... if you are innocent." If the original statement were true it would reflect an absurd situation in which people could only overturn their convictions if they knew themselves to be guilty.
    – phoog
    Nov 28, 2018 at 22:45

You would have got a different answer if you had asked this question of an English lawyer about a trial at the Old Bailey in London.

In England, the old distinction between a minor offence ("misdemeanor") and a serious offence ("felony") was, in theory, swept away in 1971. But in reality, the distinction survives (slightly modified), albeit no longer with those names.

In terms of the appeals procedure, the difference may still be significant. Offences so minor as to be misdemeanors are no longer tried before a jury, and the right of appeal is extremely limited. For these offences, triable only before a Magistrate, there is normally only a fine on conviction, or a prison term not exceeding 6 months.

For a more serious charge, the right to a Jury trial is either automatic or is exercisable at the option of the accused. Where the trial is by judge and jury, the jury decide his guilt or innocence; and, because of that, an appeals court will usually (except in rare cases) refuse to substitute its own view of the facts for that taken by the jury.

The appeal court normally only deals with procedural issues, of which by far the most common is the type of application based on (some variation of) the allegation that the judge misdirected the jury. The accused then attempts to find some fault with the procedures which the judge adopted (perhaps alleging some procedural unfairness), or with his directions to the jury about the law.

In terms of shifting the blame from one defendant to another, this is relatively unlikely. The appeal court does not hear any evidence at all. It only considers legal arguments, and these generally pertain not to the evidence at the original trial, but usually only to the procedures used. If matters of evidence do arise, they might take the form of an objection to the judge's decision as to whether or not to permit a particular witness to give evidence (most commonly arising in relation to whether an expert was suitably qualified to give evidence).

In English law, the law of criminal evidence holds that a person cannot be convicted on the uncorroborated testimony of an accomplice. This most important restriction prevents any possibility of there being an attempt by one defendant to cast the blame onto another, at any stage in the proceedings.

The principal difficulty for the co-defendant who was acquitted at the trial is, in the event of an appeal against conviction by another defendant, that the double jeopardy rule was abolished by the last Labour government (i.e. fairly recently), and there have not (yet) been enough high-profile miscarriages of justice reported to have caused it to be restored.

  • "triable only before a Magistrate": is that precisely correct? In other words, it is not possible to try such an offense elsewhere? I would have expected it to be more a question of practice. More to the point of your answer, what are the circumstances in which the appeals court would reexamine the facts? Could such a circumstance lead to the situation presented in the question?
    – phoog
    Nov 30, 2018 at 18:29

You don't state a jurisdiction, but at least in the US, there is a distinction between questions of law and questions of fact. The trier of law decides the former, while the trier of fact decides the latter. The trier of law is the judge, and in a jury trial the jury is the trier of fact (in a bench trial, the judge serves as both trier of law and of fact, but those roles are still distinct).

So let's say Person A is charged with murder, and the prosecution presents a witness who testifies that Person A confessed to them, and the defense objects to the testimony. Whether the testimony should be allowed is a question of law. Whether the testimony is true is a question of fact. So if the judge decides that the testimony should be allowed, then it's up to the jury to decide whether to believe the testimony.

If you disagree with a judge's ruling against you on a question of law, you can file an appeal. You are appealing the ruling, not the verdict. If you are convicted of a crime, you can't appeal the verdict, you can only appeal the rulings by the judge that led to that verdict. In an appeal, you can ask the appeals judge (or judges), as a trier of law, to overrule the trier of law (judge) in the original case. But you can't ask them to overrule the trier of fact (jury). Those are separate roles. If the appeals court agrees with you that the original ruling is wrong, they may decide that the verdict was improperly arrived at. But they won't rule on whether or not you are guilty; they aren't acquitting you, they are simply invalidating the original determination of guilt, and leaving the question of your guilt legally undecided. They certainly won't declare that some other person is guilty. Only a trier of fact can do that. Now that there is no determination of fact, the prosecution can, if they want, then schedule a new trial, conducted according to the appeals court's ruling on matters of law, and try to convict you again.

So if Person A is convicted and Person B is tried but acquitted, and an appeals court throws out Person A's conviction, and Person A is tried again and acquitted, then yes, both would go free, as Person B (barring issues such as dual sovereignty) cannot be tried again, as that would be double jeopardy.

  • The prosecution is also free to decide that, under the rulings of the Appeals Court, that there's no point in prosecuting, in which case A goes free. (Suppose that there was a question of admissibiity of evidence the prosecution needed to establish guilt beyond a reasonable doubt; there'd be no point in another trial.) Nov 28, 2018 at 19:15
  • In England it's possible to appeal against conviction, not just sentence. Where it's a matter of getting some witness's evidence thrown out as inadmissable (under the laws governing criminal evidence), the result of succeeding will often be that the original conviction becomes unsafe, and is overturned on that specific basis, i.e. as being unsafe. But defendant A cannot apply to the court of criminal appeal for them to review the verdict reached against defendant B. If B was acquitted there is nothing to review, and if B was convicted then only B himself can appeal the verdict or sentence.
    – Ed999
    Nov 30, 2018 at 15:51

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .