The government has more rights to bring interlocutory appeals in federal courts compared to defendants. Interlocutory appeals are not the same as appeals after trial. These are appeals of a ruling by a trial court, which are made before trial. The government has an advantage because, unlike the defendant, the prosecution usually is not allowed to appeal an adverse verdict after trial. However, under 18 U.S.C. ß 3731, the prosecution is allowed to appeal from the following orders: (1) orders dismissing an indictment or information or granting a new trial, (2) orders suppressing or excluding evidence or requiring the return of seized property and (3) orders granting the defendant bail or denying a motion for revocation or modification of the conditions of bail.

Orders Granting Dismissal or a New Trial

Government’s ability to appeal dismissals is not unlimited. These appeals are generally subject to the condition that they will not interfere with the double jeopardy clause of the United States Constitution.

The law also allows the prosecution to appeal the dismissal of individual counts in an indictment or information. There is a complicated question of whether the dismissal of only part of a count may be appealed. This issue was debated by various Circuit Courts until the Congress adopted the 2002 changes to the law that state that the government may appeal the dismissal of “one or more counts or any portion of a count. This is now the established law.

Orders Suppressing or Excluding Evidence

The government may also appeal orders which suppress or exclude evidence or order the return of seized property if these orders are not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information. In cases where a defendant goes to the second trial after the first trial ends in mistrial, the prosecutor may appeal the pretrial denial of a motion for reconsideration of evidentiary rulings made during the first trial.

The government is also allowed to appeal a conditional order of suppression or exclusion. In the same fashion, the prosecutor may appeal court ruling that the testimony of the government’s immunized witnesses would be excluded unless the government granted same immunity to defense witnesses.

If the prosecution wants to appeal an order of suppression or exclusion, it has to certify they are not doing that in order delay the process. The government also must show that the evidence, which was excluded is a substantial proof of a fact material in the proceeding.

Orders Suppressing Wiretap Evidence

Under federal law, the government is allowed to appeal an order granting a motion to suppress wiretap evidence. Under the same law, the government is also allowed to appeal the denial of an application for an order of approval pursuant to the emergency wiretapping provision of 18 U.S.C. ß 2518(7).

Bail Orders

Prosecution has the right to appeal court orders, which grant the defendant’s release or deny a motion for revocation of, or modification of the conditions of, a decision or order granting release. On the other hand, the government is not allowed to appeal from an order of the district court remanding the case to a magistrate judge for the determination of the conditions of release, because such an order is not final.

Classified Information

Under the Classified Information Procedures Act (“CIPA”) the government is authorized to file pretrial appeals from district court orders, which allow the disclosure of classified information, or which impose sanctions on the government for nondisclosure of classified information or which refuse to grant a protective order sought by the government to prevent the disclosure of classified information. This law does not authorize the government to appeal from a district court’s order, which allows the defendant to raise a “public authority” defense, where it was unclear that the court’s order would authorize the disclosure of classified information.

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