As an appellate attorney, I appreciate the beauty of a well-preserved record. Th
e issues are easy to spot and present to the appellate court, and a fair number of the cases can be overturned on appeal. All too often, though, trial counsel fails to take the necessary steps at trial to preserve the record for the inevitable appeal.
Why Is It Necessary To Protect And Preserve The Record?
When trial counsel objects to an error at trial, the appellate court reviews that error to determine whether it prejudiced the defendant. Unless the error is harmless beyond a reasonable doubt, the court will generally grant the defendant the requested relief (usually reversal of the conviction).
Where counsel fails to object to an error, the defendant is deemed to have waived that issue, and the appellate court will only consider it if the error created a substantial risk of a miscarriage of justice (or in a first degree murder case, a substantial likelihood of a miscarriage of justice). Under these standards, an error must be outrageously prejudicial to warrant reversal of his conviction. In addition, your failure to preserve an issue may subject you to a claim of ineffective assistance of counsel. See, e.g., Commonwealth v. Swan, 38 Mass. App. Ct. 539 (1995).
How Does Trial Counsel Preserve The Record?
The way to preserve the record for appeal depends on the type of issue involved.
In arguing pretrial motions (suppression, dismissal, severance, motions in limine, etc.), you should articulate your grounds, explain your theory, and cite authority. You should do so in writing, and you should ask for findings. If your motion is denied, you must renew your objection at trial at the appropriate time (e.g., when the Commonwealth offers the challenged evidence at trial). See Commonwealth v. Oeun Lam, 420 Mass. 615, 617 n.5 (1995).
To challenge improprieties during jury selection, you should object at any sign of racial bias, gender bias, or anything that appears improper. If you wish to challenge the makeup of the jury pool or the way jurors are selected in your county, that should be done through a pretrial motion, not a simple objection.
In raising evidentiary issues (either improper admission or exclusion of evidence) you should object immediately. If the evidence coming in is sufficiently prejudicial, you should immediately move for a mistrial. If the judge refuses to grant a mistrial or if the error does not warrant such drastic measures, at least ask for a curative instruction. If the judge refuses to admit an important piece of evidence, make an offer of proof and explain why the evidence is so important. See Commonwealth v. Swan, supra.
Challenges to the sufficiency of the evidence should be raised in a motion for a required finding of not guilty at the close of the Commonwealth's case. You should renew the motion at the close of all of the evidence. Unless the grounds for your motion are obvious, you must state and explain those grounds to the trial judge.
Improper argument or conduct by the prosecutor should be objected to immediately, or at the very least, at the conclusion of the prosecutor's argument. You should also move for a mistrial, and if denied, ask for a curative instruction.
If the judge does something improper, object, state your grounds for the record, and if warranted move for a mistrial. If the conduct is nonverbal (such as shaking his or her head or making faces during argument), describe the conduct on the record. If the judge refuses to let you state your objections, write them down and file a written motion for a mistrial at your earliest opportunity.
Errors in the jury charge are perhaps the most fertile ground for appellate reversals but require the most care. Well before the judge's charge, you should think about how you want the court to instruct on your important issues. You should file written requests for jury instructions, and you should object both prior to and after the charge to any requested instructions that the judge declines to give. If the judge makes a mistake, bring that error to his or her attention immediately (otherwise it might be deemed waived). Ask the judge to correct the mistake.
Finally, challenges to sentencing issues involve a good measure of common sense-object if the prosecutor makes improper arguments, if the judge relies on improper factors, or if you are prevented from making your argument.
Conclusion
By following these steps, trial counsel can increase his or her client's chances of prevailing on appeal, minimize potential claims of ineffective assistance of counsel, and perhaps make some new law. As a side benefit, a thorough explanation of your objections may help you win a few more rulings in the trial court.
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(c) 1995 Dana Alan Curhan. All rights reserved.