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What I am reading here is that the Seventh Amendment (from whence "no fact tried by a jury shall be retried" comes) only applies to civil cases, and the guarantee of the right to a jury in a civil trial only applies to federal courts. So - when Trump was complaining about "not being allowed to have a jury" in his New York civil fraud case, he was wrong on two counts: One, Alina Habba forgot to check the box requesting a jury in that trial. Two: states are not required to offer a jury trial for civil cases.
But I digress - back to criminal cases.
As always, there are federal courts and all of the state courts. What I see is that, even for criminal cases, federal appeals courts do not address matters of fact. They do not hear evidence or testimony from witnesses. They address issues with the application of the law only.
Let's look at the New York Supreme Court, Appellate Division, where Trump's criminal appeal will go. Right off the bat, I see that "Each case is decided by a panel of five, or in some instances four, justices of the Court. There is no procedure for the Court to sit en banc." So my previous statements about en banc do not apply in New York State.
With regard to criminal appeals in New York, it seems to get even more interesting.
"In criminal actions, appeals to the Appellate Division are generally authorized as of right by the defendant from a judgment or a sentence." I take this to mean that a criminal appeal made to this court in New York State is heard by the appellate court - they have neither the option to decline to hear, nor simply review and affirm the lower court.
"In determining appeals it has power to review issues of law, fact, and discretion arising in civil and criminal cases." "Unlike the Court of Appeals [this is what New York calls its highest court, which other states call their Supreme Court], which, with limited exceptions, has only the power to review errors of law, the Appellate Division has broad power to review questions of law, findings of fact, and exercises of discretion." The appellate court in New York "has broad power" to review issues of fact; whether they normally exercise that power, I don't know.
So it seems that, for criminal cases in New York State, my initial assessment of "what appeals courts do" was inaccurate. Again, I don't know whether this court in New York wields its power to review facts and discretion strongly or not, or whether they would do so in this specific case.
Are you sure you're not a lawyer?
All I do is read.