Defense counsel's guide to preserving objections for appeal

Trial Defense Counsel’s Guide

to Preserving Objections

Major Mason Weiss*based entirely (and shamelessly) on “Making the Appellate Record: A Trial Defense

Attorney’s Guide to Preserving Objections—the Why and How

by then LTC Patricia A. Ham, The Army Lawyer, March 2003

Hypothetical

·You draft a great motion to suppress your client’s statement to CID which, if admitted, will ensure your client gets convicted.

·You have a terrific Article 39a session, and all the evidence comes out exactly like you wanted.

·The Military Judge rules against you and lets the statement in!

·Your client decides to plead guilty and you get a PTA.

Will the appellate courts consider this motion on appeal?

Hypothetical

No·Unconditional guilty plea= Accused waived his right for the appellate courts to consider the motion to suppress under almost all circumstances!

Making the Appellate Record

A. The Waiver Doctrine

B. Standards of Review

C. Top 10 Things to Make the Appellate Record

D. Preserving Selected Specific Objections

The Waiver Doctrine

·Failure to properly preserve an issue at trial waives the issue for appeal!

·Waiver= appellate court is unlikely to consider the issue

·Waiver=your client has almost no chance of relief on appeal

·Waiver= “intentional relinquishment or abandonment of a

known right.”

The Waiver Doctrine

Waiver vs. Forfeiture ·Forfeiture= failure to make a timely assertion of a right.

·What’s the difference?

·Issues you intentionally waive= never merit relief!

·Issues you forfeit= appellate court may grant relief under the doctrine of plain error under extraordinary circumstances (even though there was no objection at trial)

The Waiver Doctrine

Why Waiver?

·To avoid piecemeal litigation

·Judicial economy

·The rule is designed. . . to prevent defense counsel from remaining silent, making no objection, and then raising the issue on appeal for the first time, long after the possibility for curing the problem has vanished.

·Exception to waiver rule= plain error

The Waiver Doctrine

Very few issues are not subject to waiver:

-Jurisdiction

-Failure to state an offense (but you better raise it at trial)

-Incompetence to serve as a member under Article 25 UCMJ

-Adjudicative (vs. accusatory) UCI

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The Waiver Doctrine

Raise or waive issues include:

·credit for violating procedures used to place accused in PTC

·objections to Article 32 Investigations

·objections to either the taking of a deposition, or to questions or evidence presented at depositions

·failure to lodge objections at the appropriate time

·failure to place matters agreed upon at RCM 802 session on the record

·challenges to the military judge (although some ≠ waivable)

·untimely request or withdrawal of request for trial by enlisted panel or MJ alone

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The Waiver Doctrine

Motions you must raise before entering a plea (RCM 905b):

·defective Article 32 Investigation

·defects in the charges or specifications

·defects in preferral, forwarding, investigating, or referral of charges and specifications

·motions to suppress confessions

·motions to suppress evidence obtained by unlawful search or seizure

·motions to suppress eye-witness identifications

·motions to sever

·motions for an IMC counsel

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The Waiver Doctrine

Motions you must raise before court-martial is adjourned:

·Continuance

·Speedy Trial

·Release from pretrial confinement

·Statute of Limitations

·Double Jeopardy

·Prosecution is barred by immunity

·Bill of particulars

·Discovery or request for production of witnesses

·See RCM 906 and 907 for others

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The Waiver Doctrine &MRE 103

·MRE 103 contains comprehensive and sweeping waiver rules3 critical points to know

1.Even when TDC properly objects and MJ errs by excluding or admitting evidence, no relief on appeal “unless the ruling materially prejudices a substantial right of the accused.”

2. TDC must object to the admissibility of the evidence that defense seeks to exclude.

3. If MJ excludes evidence that TDC seeks to admit, TDC must comply with MRE 103 mandate to preserve its position.

The Waiver Doctrine & MRE 103

MRE 103

1. Must materially prejudice substantial right

2. When MJ admits evidence TDC wants kept out, TDC must timely object stating specific grounds of objection (unless obvious)

3. When MJ excludes evidence, TDC must make offer of proof.

The Waiver Doctrine

MRE 103

To get relief from evidentiary error, accused must:

1. Establish prejudice

2. Correctly preserve the objection

Burden is on TDC—not on trial or appellate courts

·MRE 103 ended the ability of appellate defense counsel to raise errors that were not raised at trial

Standards of Review

·SOR= amount of deference that appellate court gives to a trial judge’s decision

·Why should I as a TDC care about SOR?

-because appellate courts perform a completely different analysis of properly preserved objections and issues than for ones that are not properly preserved!

·It’s always difficult to get relief on appeal even when you properly preserve things, almost impossible when you’ve waived for forfeited them

Standards of Reviewfor Properly Preserved Issues

Assuming TDC properly preserved the objection, client gets no relief on appeal unless:

1. There is error; and

2. The error materially prejudices a substantial right

-This is from Article 59a UCMJ, and MRE 103

So—appellate court has to decide:

1) if error actually exists, and

2) if it does exist, is it harmless error, or is it prejudicial error.

Error + no prejudice = Harmless Error.

Harmless Error = your client gets no relief!


-There are several SORs that appellate court employs to answer the First Question:

“Is there error?” (and DC properly objected)

1. Abuse of Discretion

2. Clearly Erroneous

3. De Novo


Abuse of Discretion

·applied to nearly all evidentiary rulings

·exceedingly deferential to trial judges

·to reverse for an abuse of discretion= more than a difference of opinion. The challenged action must = arbitrary, fanciful, clearly unreasonable, or clearly erroneous


Clearly Erroneous

·used by appellate courts to determine whether MJs findings of fact are correct/incorrect

·also exceedingly deferential to trial judges

· “At least one court has defined the clearly-erroneous standard by stating that it must be ‘more than just maybe or probably wrong; it must . . . Strike us as wrong with the force of a five-week old, unrefrigerated dead fish.”

*little to no deference given if MJ doesn’t make findings of fact!*less or no deference if MJ fails to articulate 403 balancing test


De Novo

·least deferential SOR

·appellate court gives no deference to MJ’s ruling

·But even when appellate court is reviewing an issue de novo, it normally defers to MJs findings of fact unless they = clearly erroneous


Mixed SORs

·happens b/c issues present mixed questions of law & fact

·i.e. appellate court reviews motion to suppress for:-abuse of discretion, -deferring to MJs findings of fact unless they are clearly erroneous-but review MJs legal conclusions de novo

·Will not find abuse of discretion unless findings of fact are clearly erroneous or conclusions of law are incorrect

Standards of ReviewHarmless Error, Plain Error & Article 59(a)

·(1) DC properly objects + (2) appellate court applies correct SOR and finds error, then → (3) court analyzes whether error is prejudicial or harmless.

·If appellate court finds error → burden shifts to gov’t to prove that the error is harmless.

·Burden depends on type of error: constitutional or non-constitutional


·Non Constitutional error → Gov’t must prove error = harmless-gov’t must address whether the error itself had substantial influence on the findings.-if so, or if one is left in grave doubt → conviction cannot stand

·Constitutional error → Gov’t must prove error = harmless beyond a reasonable doubt.-Test= is it clear beyond a reasonable doubt that a rational jury would have the appellant guilty absent the error?-If not clear they would have found him guilty anyway → conviction cannot stand


·Structural errors = errors so basic that harm is self-evident and no need to test.

-total deprivation of right to counsel at trial

-lack of impartial judge

-unlawful exclusion of members of ∆’s race from grand jury

-right to self-representation at trial

-right to public trial


·Plain Error: applies to issues that DC have not properly preserved.

·completely different analysis, low chance of success.

·PE = (1) error + plain/clear/or obvious + materially prejudiced one of ∆’s substantial rights

·PE analysis places burden on appellant to prove all 3 prongs! (not on the government).

·Even if he does, court may only grant relief if the error “seriously affects the fairness, integrity, or public perception of the proceedings.”


· “Material Prejudice to a Substantial Right” in a P/E scenario = ∆ must prove error “was so significant as to influence the outcome of the trial, that is, error made the trial unfair” or that error had an “unfairly prejudicial impact on the jury’s deliberations.”

· CAAF 3-prong test for P/E is tougher than federal practice b/c it requires “material prejudice” not just “affects substantial rights.”

·BLUF: P/E is hard to prove, and if it’s there—it means you screwed up as a TDC b/c you should have objected and didn’t!

Top 10 General Observationson Making the Appellate Record

1.Failure to object (or to object properly) at trial waives the issue!

·Remember—you represent a client. Do not let the MJ browbeat you into submission.


2. An error without prejudice means no relief on appeal

·Even if you object properly, ≠ relief unless → error + resulting harm to accused.

·You must articulate how specific rulings prejudice your client when you object

·i.e. if MJ refuses to allow you to cross-examine victim on certain issues → argue to MJ why those questions and answers fit into ∆ theory of the case, etc.


3. An objection at trial on one basis does not preserve an objection on a different basis

·Appellate review of an objection “requires a record that the appellate court can review”

· “It is difficult, if not impossible to second-guess the intent of the TDC if he or she does make the specific objection known to the MJ.”

·i.e. if you object on “speculation” and MJ denies it, appellate defense counsel cannot then argue that it was also hearsay (BLUF—object on every ground possible!)


4. Offering evidence on one basis at trial does not preserve an offer of the same evidence on a different basis on appeal

·Appellate review of an objection “requires a record that the appellate court can review”

· “It is difficult, if not impossible to second-guess the intent of the TDC if he or she does make the specific objection known to the MJ.”

·i.e. if you object on “speculation” and MJ denies it, appellate defense counsel cannot then argue that it was also hearsay (BLUF—object on every ground possible!)


4. Offering evidence on one basis at trial does not preserve an offer of the same evidence on a different basis on appeal

What to do to get your evidence in:

·Offer of proof required to clearly and specifically identify the evidence sought to be admitted and its significance

·MRE 103(a)(2) requires proffers! Suggest to MJ that he hears disputed evidence before ruling on its admissibility

·OP= what witness will say, why relevant, how it fits D theory of case, how it counters govt, why it’s admissible


5. An unconditional guilty plea waives most motions, even if counsel fully litigate them before entering the plea

·Only two waives to preserve issues that would be waived by a guilty plea:

1. Plead not guilty2. Enter a conditional guilty plea -requires government consent and MJ approval


6. Failure to raise most motions before plea waives them, absent good cause

·RCM 905(c)·Motions related to: discovery and production of witnesses;·Motions based on Fourth and Fifth Amendment and Article 31 UCMJ violations

·Appellate courts review MJ’s determination of good cause for abuse of discretion


7. If the MJ defers ruling or invites further evidence or reconsideration, he has not ruled, & there is nothing to appeal

·In other words—if you don’t renew your request, you waive the issue.


8. ****Whether the trial is before a panel or MJ alone matters, especially for the purposes of P/E analysis! *****

·MJ is presumed to know the law and apply it correctly, presumed capable to filter out inadmissible evidence.

·P/E before a MJ alone = rare

·Appellate courts presume prejudicial impact of erroneously admitted evidence on MJ is less than on panel

·You must make proper objections!! If MJ keeps making erroneous rulings on them may = MJ doesn’t know the law.


9. With few exceptions, the ROT cannot be supplemented on appeal

·Appellate review generally limited to matters presented at trial

·Most common exception is one you don’t want: IAC

·ACCA can remand cases for a Dubay hearing

·Although ACCA has fact finding powers under Article 66 and can allow the record to be supplemented—will not normally be on evidentiary issues or issues of guilt or innocence.


10. If it’s not in the record, it didn’t happen!

·Record means ROT = only those matters received into evidence and appellate exhibits.

·ROT ≠ everything between the blue covers ≠ -Ar32 transcript, allied papers, exhibits not received into evidence, emails, 802 sessions not put on record.

·None of these items are part of the ROT and they cannot be considered on appeal.

Preserving Selected Specific Objections

1. Preserving Objections to or during the Article 32 Investigation

·(1) must object on the record & ask the IO to note the objection in the report + (2) object again in writing to CA within 5 days of receiving the IO’s report (must do both or = waiver)

·If objection is for failure to produce witness → DC must ask CA to order a deposition

·Finally, DC must object again to MJ before entering a plea, or issue is waived.


2. Preserving Objections to Discovery or Witness Matter

·Make specific requests for discovery tailored to facts of the case b/c case law distinguishes b/t general and specific requests for information:

· When DC makes a specific request for info & π fails to disclose info → evidence considered “material” unless π can demonstrate failure was harmless BRD.

·With general requests, failure = “material” only if = reasonable probability that a different verdict would have resulted if evidence was disclosed.



·Make specific requests for discovery tailored to facts of the case b/c case law distinguishes b/t general and specific requests for information:

· When DC makes a specific request for info & π fails to disclose info → evidence considered “material” unless π can demonstrate failure was harmless BRD.

·With general requests, failure = “material” only if = reasonable probability that a different verdict would have resulted if evidence was disclosed.



·If motion is to compel a witness, DC should proffer substance of W’s testimony & explain how that testimony is both legally and logically relevant.

·DC should first interview the W or describe on the record any unsuccessful attempts to interview them. ****


3. Preserving Motions in Limine

· Preserving an MIL requires both a “ruling” + proper preservation of the issue after the ruling.

·If MJ defers ruling, makes tentative or preliminary ruling subject to further evidence or invites DC to re-open consideration of preliminary ruling → MJ has not ruled and there is nothing to appeal!



·3 part test to determine if MIL is sufficiently preserved for appellate review absent further objection1. The matter must be adequately presented to the trial court;2. Must be the type of issue that can be finally decided in a

pretrial hearing;3. Lower court’s ruling must be definitive

·Even if MJ makes a ruling, DC must still properly preserve the issue after the ruling.

·Luce doctrine



·3 part test to determine if MIL is sufficiently preserved for appellate review absent further objection1. The matter must be adequately presented to the trial court;2. Must be the type of issue that can be finally decided in a

pretrial hearing;3. Lower court’s ruling must be definitive

·Even if MJ makes a ruling, DC must still properly preserve the issue after the ruling.

·Luce doctrine



·US. v. Luce: DC sought to prohibit π cross-examination of ∆ concerning a prior conviction (TJ denies motion).

·SCT holds that for DC to properly preserve the TJ’s denial of motion, ∆ must testify! And π must cross-examine ∆ about prior conviction!

·Add Ohler v. US: ∆ must not only testify, but DC cannot remove the sting during direct examination!

·Applies also to impeachment!


4. Preserving Evidentiary Objections During Trial

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5. Preserving Issues concerning instructions

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6. Preserving Objections to Sentencing Evidence


7. Preserving Objections to Post Trial Matters