During the course of a jury trial, you hear the prosecution ask a question that refers back to evidence you successfully excluded at an earlier point in the case. The time is 4:00 p.m., the jury’s attention is fading, and the trial judge has lost all patience with everyone in the courtroom. You begin to feel uneasy as you ask yourself: “Should I face the wrath and object? Or should I let this one slide?” You know full-well the question is improper, but you also consider your setting, your client’s interests, and the prospect of belaboring a point you’d rather see as “water under the bridge.”
You sit there and do nothing – you let the question slide. You rationalize with yourself and say as a good DUI lawyer “was it a good trial tactic?”
However, was it a good appellate tactic?
An effective trial attorney or DUI lawyer must not only be able to handle himself or herself in a courtroom. The effective practitioner must also be able to use the trial as a productive springboard for the appeal in the event that his or her client loses. The major problem many attorneys encounter is not identifying the landmines that can sabotage your client’s appeal, and thus issues will be lost when raised in the appellate court.
There are some “appellate commandments” that practitioners should keep in mind at DUI and other trials. Remembering these, and not violating them, will set the stage for an appeal where all claims can be fully considered on the merits.
This article will examine the primary commandments and how they are interpreted in major jurisdictions across the country. Obviously, like so much of the law, each commandment has exceptions to the rule, and these will be discussed also.
COMMANDMENT NUMBER ONE – THOU SHALT KNOW THE PURPOSE OF AN APPEAL.
This rule sounds almost too elemental for inclusion in this article. However, a surprising number of lawyers forget that an appeal is available to re-examine alleged errors of law, and not errors of fact.
Trying to re-evaluate the evidence considered by the jury, and arguing this to the appellate court, is a sure-fire way to lose an appeal. The one exception to this rule is raising a sufficiency of evidence claim in a criminal proceeding under Jackson v. Virginia, 443 U.S. 307 (1979). Counsel should remember that arguing under Jackson about the evidence raised at trial should be directed to showing how the facts do not support one or multiple essential elements of the crime(s). Juries are allowed to disregard evidence that contradicts what was shown by opposing counsel. Arguing discrepancies in evidence on appeal, versus arguing absence of evidence, will be unsuccessful. In any event, counsel should be aware that a Jackson v. Virginia challenge is very rarely successful on appeal and should rarely be the strongest issue counsel puts forth in any post-conviction challenge.
Additionally, raising “newly found” evidence on appeal (usually attempted via a witness’ affidavit) is also improper in most circumstances. The time for presenting evidence was at trial before a jury, and not before black-robed appellate judges.
Also, trial lawyers commonly get “tunnel vision” when preparing for trial by focusing strictly on getting evidence before the jury and examining witnesses. Potential errors of law can arise at any stage of the trial’s proceedings, and a lawyer has to be on his or her toes at all times. Failure to address the legal issues while focusing only on the factual ones will likely waive appealable issues.
COMMANDMENT TWO – THOU SHALT OBJECT (AND OBJECT AGAIN WHEN NECESSARY).
Every trial attorney faces the situation at least once during a career where he or she debates about objecting to a comment from opposing counsel or an unsolicited statement from a witness. An internal conflict arises because making the objection may belabor a particular topic to the judge or jury that the attorney wishes to minimize. What an attorney must realize is failure to make the objection will likely waive the issue for any future appellate review.
The Georgia case of Smith v. State, 277 Ga. 213, 586 S.E.2d 639 (2003), best articulates the rule that attorneys need to remember about objecting: “Georgia ‘has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error.’”. Smith at 218, citing State v. Laroque, 268 Ga. 352, 353, 489 S.E.2d 806 (1997). This appears to be a universal rule among jurisdictions across the United States.[i]
Notice from the Smith rule that there are multiple components to lodging a proper objection, and these typically apply to any jurisdiction. The trial attorney should object in a timely fashion (i.e. – immediately or as soon as possible) to any issues he or she feels are errors of law or inadmissible evidence, and to which the attorney has a valid legal objection. An attorney should not object just because a particular matter is damaging to his or her client. An attorney should also state every objection – if an issue at trial can be objected to on multiple bases, the practitioner should state them all. On appeal, if an argument is made on a legal basis that was not stated at trial, the issue is waived.[ii]
If the objection is sustained and the judge offers a remedy for any harm done by opposing counsel or the witness, but the objecting attorney is not satisfied with the correction, the attorney should make another objection and/or move for mistrial. Also, the trial attorney should put on the record why he or she believes the remedy was inappropriate. Finally, if the attorney is worried about the harm that may come to his client by stating a lengthy objection in front of the jury, then the lawyer should request either a bench conference or ask that the jury be excused while the objection is made. In either event, the objection should be transcribed by the court reporter for preservation on the record.
While the contemporaneous objection rule is usually rigidly enforced by appellate courts, there are a handful of exceptions to the rule that excuse an attorney for not making an objection at the proper time. One exception is where the trial attorney’s repeated objections will anger the judge or alienate the jury.[iii] The better practice when faced with this situation is to request a continuing objection to any reoccurring objectionable material, questions or testimony that the attorney finds problematic.[iv]
One of the trickiest areas where attorneys may be forgiven for failing to object is the plain error doctrine. This theory holds that some errors are of such great proportion affecting the fairness of a trial that an appellate court will still consider the issue on the merits even in the absence of an objection.
What makes this doctrine so tricky is that different states apply the doctrine in differing ways. Both Florida and Washington, for instance, apply the doctrine for issues involving sentence enhancement without utilization of proper procedures.[v] New York will examine matters where a defendant is not permitted to call witnesses on his or her behalf in absence of an objection.[vi]
Georgia is one of the most liberal jurisdictions in applying plain error to appellate issues. Georgia appellate courts will examine the properness of a presumption of innocence charge in absence of an objection[vii]; questions or comments from the trial judge giving the appearance that he or she is taking a prosecutorial role[viii]; and statements from the defendant’s attorney with respect to his or her client’s competency to stand trial.[ix]
However, the trial attorney who relies on the plain error doctrine to save issues for appeal will likely find many potential claims waived by the failure to lodge contemporaneous objections. When in doubt – object. It is the far better practice.
COMMANDMENT THREE – THOU SHALT OBEY THE APPELLATE COURT RULES.
Every lawyer should know this – every court has rules that must be obeyed. Some are rigidly enforced, some are not. Appellate courts are no exception to this axiom.
A trial attorney may not believe he or she has to know a great deal about the appellate court rules if that practitioner is not going to typically handle any appeals. However, there are some particular rules an attorney should be aware of to preserve the appeal for his or her client.
The most obvious, and most important, is to know the procedures and deadlines for filing either a motion for new trial or a notice of appeal. In most jurisdictions, the deadline is typically thirty days from the entry of the final judgment or final disposition of the criminal case.[x] New York has a special exception for motions to set aside the verdict, which need to be entered after the guilty verdict and before the sentence is announced.[xi] California is a notable exception to this generalized rule. This state allows a notice of appeal to be filed sixty days after the rendition of the judgment or the making of the order being appealed.[xii]
Both the motion for new trial and/or the notice of appeal must also be filed in the trial court that rendered the judgment.[xiii] Mistakenly filing the notice of appeal with the appellate court instead of the trial court can potentially lead to missing the thirty day deadline, and prejudicing the defendant’s appeal.[xiv]
Another area where attorneys frequently make critical errors involving court rules is interlocutory appeals. Whereas direct appeals commonly involve longer time periods for filings, interlocutory appeals are usually governed by far-shorter deadlines. Also, interlocutory appeals frequently require additional filings by counsel because they operate like discretionary appeals – an appellant is asking permission from the court to appeal the issue. For example, in Georgia, a party’s attorney must first seek permission from the trial judge to issue a certificate of immediate review for any interlocutory order that a party finds objectionable.[xv] Upon issuance, the objecting party has ten days in which to file his or her application for interlocutory appeal with the appropriate appellate court.[xvi] An opposing party may (but is not required to) file a response within ten days from the application’s filing.[xvii] In the event the application is granted, the appellant then has ten days in which to file a notice of appeal in the trial court.[xviii] Note that some jurisdictions require a notice to be filed with ten business days and also require counsel to inform the court of their intentions to make oral arguments. The lesson to take away from all this is the rules can be very technical, and failure to abide by them can severely prejudice a client’s case.
Failing to abide by the rules can lead to messy accusations from clients – bar complaints, ineffective assistance of counsel claims, or legal malpractice actions. A trial attorney does not need to master appellate court rules; however, learning a few keys ones can avoid major headaches in the future.
COMMANDMENT FOUR – THOU SHALT PROTECT THY RECORD.
The effective lawyer understands that, to represent your client’s interests, he or she must be able to exclude from trial any inadmissible evidence that is detrimental to the client’s position. However, a truly effective attorney also recognizes that there are at least two litigators in any courtroom dispute, and a situation may arise where evidence that is favorable to your client is excluded and/or your client’s motion is denied. If the evidence is favorable or the motion’s denial lacked merit, and the attorney believes the judge’s ruling is in error, the effective attorney will know how to protect his or her client’s record and preserve the issue for consideration on appeal.
There are multiple areas where your client’s record can be irreparably harmed. Responses to motions, proffers regarding excluded evidence, and filing proposed jury charges are all examples of where the effective litigator will take the proper steps to make sure the record is complete in the event appellate review is needed. It is obvious that knowing and using the court rules are essential in this regard. Timely filing responses, making complete proffers, and ensuring that jury charges are complete and accurate when filed are all appropriate responses to the above-specified topics.
It should also be evident that the topic of record preservation is VERY broad and encompasses many sub-topics. To demonstrate this, this article will focus on two small areas: transcript recordation and proffers.
Think about all the potential areas where a transcript may prove invaluable: Jackson-Denno hearings (to determine the voluntariness of post arrest confessions), opening and closing arguments, and sidebars with the presiding judge. The rule regarding transcripts is akin to that for objections: if you did not preserve the problematic statements in some recorded format, then there is no error to review on appeal. Practitioners should also recognize that the rules differ from state to state.
In Georgia, argument of counsel is statutorily exempt from recordation in proceedings by a court reporter (in other words, the attorney must request that argument be transcribed).[xix] Voir dire also does not have to be recorded except in death penalty cases.[xx] The appellate courts have consistently held that failure to have those proceedings recorded will effectively destroy any argument on appeal pertaining to those matters.[xxi] There is one provision in Georgia law to correct unrecorded portions of the record. Under O.C.G.A. § 5-6-41(f), a party complaining that the record is incomplete may move the court to correct any such error, and the trial court shall hold a hearing to determine if the record is complete and truthful. Lawyers should be aware of the rule in some states that do not require a court reporter be present in misdemeanor case and therefore should hire a private court reporter.
Many states have similar provisions within their laws. For example, California court rules do not require voir dire or opening argument to be included in the record sent to appellate courts.[xxii]
Like other states, Texas also has rules about what portions of a trial need to be transcribed. Interestingly, Texas places the burden of what portions of the transcript need to be transmitted to the appellate court upon the appellant. Tex. R. App. P. Rule 34.6(b) provides that: “At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter’s record. The request must designate the exhibits to be included. A request to the court reporter–but not the court recorder–must also designate the portions of the proceedings to be included.” Failure to request transmission of any transcript portions to the appellate court will likely invalidate any argument on the missing portions on appeal.[xxiii] Texas court rules also provide for correcting omissions and inaccuracies in transcripts and clerk’s records either by direction of the appellate court or agreement of the parties.[xxiv] Regarding the clerk’s records specifically, those portions that need to be transmitted to the appellate court are clearly specified within Texas court rules.[xxv]
In the event your evidence or witness testimony is excluded from trial, your best (and possibly only) method of preserving the issue for appellate review is via a proffer. A proffer, or an offer of proof, is the presentation of the testimony itself or a summary by counsel of the missing witness’s testimony.[xxvi] Georgia has rather liberal rules regarding how an attorney can make a proffer. For testimonial evidence, an attorney may have the missing witness testify at the post-trial hearing or by submitting an affidavit of the missing witness.[xxvii] Alternatively, counsel can summarize on the record at trial what he or she expected the missing witness’s testimony to be.[xxviii] In any event, the proffered evidence that a Georgia attorney seeks to present at a trial must still be admissible under all other evidentiary rules.[xxix]
Florida’s rule on proffers is incorporated into state statute. See § 90.104(1)(b). Florida case law specifically provides that proffers are for the benefit of reviewing courts – “(t)here is a long-standing rule in Florida that requires the party against whom a ruling of exclusion has been made, to make a proffer of the proposed testimony so that the trial and the appellate courts may be able to evaluate its weight, relevancy and competency in determining the effect of its exclusion.”[xxx] Case law in this state indicates that attorneys need to ensure that excluded testimony is on the record in some format because appellate courts will not cull the record to speculate as to the value of excluded information.
New York has long-standing case law that directs how attorneys should make offers of proof: “It is a cardinal and well-settled principle that offers of proof must be made clearly and unambiguously. ‘Before a party excepts on account of the rejection of evidence, he should make the offer in such plain and unequivocal terms as to leave no room for debate about what was intended. If he fails to do so, and leave the offer fairly open to two constructions, he has no right to insist, in a court of review, upon that construction which is most favorable to himself, unless it appears that it was so understood by the court which rejected the evidence.’”[xxxi] This rule places the burden upon the attorney to make a clear and unambiguous presentation as to what the evidence would have shown.
To make a successful proffer, the excluded information must be carefully tailored to show that it would have been relevant to a key portion of the client’s case. For example, in driving under the influence cases, a defendant who does not show in a proffer that his involuntary intoxication evidence demonstrated temporary insanity will not prevail on appeal. A past history of blackouts resulting from voluntary intoxication will be unsuccessful.[xxxii] In contrast, a defendant who proffers expert testimony showing that she suffers from battered women’s syndrome, which lead her in turn to abuse her children, will prevail on appeal arguing that the trial court erred by excluding that same testimony.[xxxiii]
Thus, if a general statement can be made on the topic or record preservation, it should be that an effective attorney will ask him or herself: have I done everything to state my client’s position on this excluded evidence, the denied motion, or done what is necessary to review the particular matter on appeal? And if I have, is the record sufficiently made so that the appellate court can understand what my position is on the issue?
COMMANDMENT FIVE – THOU SHALT LISTEN TO THY CLIENT.
An unfortunate but frequent occurrence in criminal practice is that attorneys will not listen to their clients. Let’s face it – the criminal defendant frequently acts like a person drowning in the middle of the ocean. He or she recognizes that the situation looks precarious, and the defendant will thrash around looking for any reason to get the charges dismissed. This frequently leads to conflict in the attorney-client relationship. The client wants the attorney to file a demurrer on the indictment, get the judge kicked off the case, get the prosecutor disbarred, etcetera, etcetera, etcetera…in short, throw “everything but the kitchen sink” at the case. The attorney wants to focus on the major issues and only those that he or she considers meritorious. The attorney may “tune out” the client if such a relationship develops.
Attorneys should resist such feelings. Every once in awhile, the client does find something in the case that is not right and that the lawyer has overlooked. Failing to recognize this may happen can lead to a major issue being overlooked which could prove critical in the case. Indeed, some case law indicates that attorneys should get input on how the case is handled from the client him or herself: “She (the attorney) was obliged to consult with the petitioner throughout the proceeding and to discuss possible alternative defenses, as she did. Even when strategic decisions are of such a nature that ‘the power of decision on them must rest with the lawyer . . . that does not mean that the lawyer should completely ignore the client in making them.’”[xxxiv]
In the author’s practice, I have had the pleasure of associating with countless criminal defense attorneys. A number of these have appeared as witnesses on their own behalf at habeas corpus hearings where ineffective assistance of counsel has been alleged. Out of this number, a sizeable proportion admitted on the record that their clients did suggest issues to be considered for appeal and the attorney used those issues in the appellate brief. Although I did not keep statistics as to whether these issues lead to reversals of convictions, the fact that a trained legal professional would include those issues means that the defendants were not crazy or ignorant in their assertions.
That said, the best practice for effective attorneys facing an appeal is to listen to his or her client, read his or her correspondence, and listen to family members who have contact with the client. This does not mean that the attorney has to use every issue raised by the client – a lawyer must still discern those issues to raise only those claims that have the best chance of prevailing on appeal. However, if the practitioner has identified claims raised by the client that do have merit, the lawyer needs to make sure those issues are correctly preserved for future appellate review (such as preserving objections on the point at trial, raising the claim in a properly filed motion for new trial, etc.).
COMMANDMENT SIX – THOU SHALT HAVE EFFECTIVE PRACTICES.
At this point, the reader is likely thinking: “Well, that is obvious…the only good lawyer is an effective lawyer.” However, there is a surprising number of lawyers who use the same method or strategy over and over again, despite knowing that the strategy has not worked and will not likely work at any future point.
Attorneys’ trial tactics will generally be given great deference when reviewed upon appeal. Even if the reasoning behind making a decision at trial is questionable, appellate courts will generally defer that reasoning as strategy when evaluating whether counsel was effective or not.[xxxv] However, appellate courts will not hesitate to provide editorial opinions about procedures or tactics it finds disturbing or straying from decent practices.[xxxvi]
The point here is every attorney should practice the steps highlighted above and also periodically assess their trial methods to see if what he or she is doing actually works. Using these commandments and an honest evaluation of practice style will ensure that a lawyer not only has good trial skills, but good tactics to preserve issues for appeal if and when needed.
[i] California - People v. Ledesma, 39 Cal. 4th 641, 729, 140 P.3d 657 (2006); Florida - Occhicone v. State, 570 So. 2d 902, 906 (1990); New York - People v. Mercado, 91 N.Y.2d 960, 963, 695 N.E.2d 711 (1998); Texas - Allen v. State, 108 S.W.3d 281, 282-83 (2003); Washington - State v. Wicke, 91 Wn.2d 638, 642, 591 P.2d 452 (1979).
[ii] Practitioners should be aware of opposing counsel who may “cheat” – i.e. try to get information that was excluded at trial before an appellate court by including it in a brief. The appropriate method to respond to such a tactic is to show where in the record the information was excluded in a responding brief and to argue that the matter is waived accordingly.
[iii] People v. Hill, 17 Cal. 4th 800, 820-22, 952 P.2d 673 (1998).
[iv] People v. Hill, 17 Cal. 4th 800, 820-22, 952 P.2d 673 (1998).
[v] McGriff v. State, 497 So. 2d 1296 (1986); State v. Fero, 125 Wn. App. 84, 104 P.3d 49 (2005).
[vi]People v. Boone, 78 A.D.2d 461, 435 N.Y.S.2d 268 (1981).
[vii] Tillman v. Massey, 281 Ga. 291, 637 S.E.2d 720 (2006); O.C.G.A. § 5-5-24(c);
[viii] Paul v. State, 272 Ga. 845, 537 S.E.2d 58 (2000).
[ix] Almond v. State, 180 Ga. App. 475, 349 S.E.2d 482 (1986).
[x] Florida - Fla. R. App. P. 9.140; Georgia – O.C.G.A. §§ 5-6-38; New York – N.Y. C.L.S. C.P.L. § 460.10; Texas - Tex. R. App. P. Rule 21.4(a) and Tex. R. App. P. Rule 26.2; Washington - Wash. RAP 5.2.
[xi] N.Y. C.L.S. C.P.L. § 330.30
[xii] Cal. Rules of Court, Rule 30.1
[xiii] California - Cal Rules of Court, Rule 8.304; Florida - Fla. R. App. P. 9.140; Georgia – O.C.G.A. §§ 5-6-37; New York – N.Y. C.L.S. C.P.L. § 460.10; Texas - Tex. R. App. P. Rule 25; Washington - Wash. RAP 5.2.
[xiv] Tello v. State, No. 04-05-00833-CR (Tex.. App. 4th Dec. 21, 2005).
[xv] O.C.G.A. § 5-6-34(b).
[xix] O.C.G.A. § 17-8-5
[xx] Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975); Floyd v. State, 281 Ga. App. 72, 635 S.E.2d 366 (2006)
[xxi] Floyd v. State, 281 Ga. App. 72, 635 S.E.2d 366 (2006); Hurston v. State, 278 Ga. App. 472 (4), 629 S.E.2d 18 (2006)
[xxii] Cal. Rules of Court, Rule 8.320 (2007)
[xxiii] Solis v. State, No. 13-03-00262-CR (Ct. App. Tx. 13th Dist. Jul. 20, 2006)
[xxiv] Tex. R. App. P. Rules 34.5(c) and 34.6(e) (2007)
[xxv] Tex. R. App. P. Rule 34.5(a)
[xxvi] Goger, Daniel’s Georgia Handbook on Criminal Evidence, § 1-20 (2005 ed.)
[xxvii] Roberts v. State, 263 Ga. 807 (2), 439 S.E.2d 911 (1994)
[xxviii] Cain v. State, 277 Ga. 309 (4), 588 S.E.2d 707 (2003)
[xxix] Smart v. State, 277 Ga. 111 (4), 587 S.E.2d 6 (2003)
[xxx] Nava v. State, 450 So.2d 606, 609 (1984), overruled on other grounds Brazell v. State, 570 So.2d 919 (1990)
[xxxi] People v. Williams, 6 N.Y.2d 18, 23, 159 N.E.2d 549 (1959), citing Daniels v. Patterson, 3 N.Y. 47 (1849)
[xxxii] Crossley v. State, 261 Ga. App. 250, 582 S.E.2d 204 (2003).
[xxxiii] Pickle v. State, 280 Ga. App. 821, 635 S.E.2d 197 (2006).
[xxxiv] Johnson v. Commissioner of Corrections, 222 Conn. 87, 96, 608 A.2d 667 (1992), citing I ABA Standards for Criminal Justice (2d Ed. 1980) c.4, standard 4-5.2, commentary, p. 4.68.
[xxxv] State v. Clayton, 62 Ohio St. 2d 45, 48-49, 402 N.E.2d 1189 (1980).
[xxxvi] United States v. North, 910 F.2d 843, 895 (D.C. App. 1990) (independent counsel’s decision to refer to Adolf Hitler in closing argument was “(u)nquestionably inflammatory” and “reflected remarkably poor judgment by” counsel); Benge v. Johnson, 312 F.Supp. 978, 1011 (S.D. OH. 2004) (closing argument that denigrates opposing counsel is unprofessional and strongly discouraged).