Practice Tips for Defense Lawyers – Preserving Issues for Appeal

Jury trials, at least for criminal defense lawyers and prosecutors, represent the apex of professional life.  COURTROOM TIPS FROM AN EXPERIENCED CRIMINAL LAWYER

Prior to trial we review discovery, interview witnesses, and argue motions.

We anticipate what may or may not be admissible.

We prepare lines of questioning for direct and cross-examination, formulating in the process a “theory of the case” or narrative.

Defense lawyers also worry over the consequences of a conviction, the strengths and weaknesses of evidence, and possible best-case and worst-case scenarios.

While thrilling, the jury trial process can be discombobulating.  There are lots of moving parts and important tactical decisions – Bill Powers, Charlotte Criminal Defense Attorney

Even experienced defense attorneys can forget jury trials, superior court hearings, and even superior court bench trials are multi-layered.

Holding the State to its Burden – DWI Checkpoints

Focusing on the presentation of evidence, jury pool body language, and testimony as it is elicited, it’s understandable consideration of the possibility of an appeal can be lost in the process.

Properly preserving legal issues, real-time, while keeping the jury with you and not vexing the Court, represents a certain level of mastery of the thing we call the “practice” of law.

Are we on the record?

Once things settle down a bit after voir dire (jury selection), the process ordinarily becomes a bit more predictable.

With legal issues and theories ironed out, opening statements made or waived, the work of introducing testimony and evidence begins.

What many if not most laypeople fail to understand is that even getting to jury selection takes time.

Prior to explaining your case to a jury of peers, there often are legal issues and disputes to resolve.

That may involve the filing of Motions in Limine, Motions to Suppress, and Motions to Dismiss.

NCDMV Restoration Hearings – Attorney’s Perspective

Those issues of law are for the Court’s consideration, not the jury.

In a traditional jury trial setting, the Finder of Fact is the jury and the Finder of Law is the Court, the Judge – Bill Powers, Criminal Defense Lawyer Charlotte NC

Since the amendment of the North Carolina Constitution, certain legal matters involving criminal charges in NC allow for the accused to waive the right to a jury trial.

That process, which is set forth by statute, requires special inquiry by the Court, execution of appropriate documentation, and obviously careful consideration by defense counsel.

Complicating matters, in larger judicial districts like Charlotte (Mecklenburg County) we often bifurcate the process.

While some jurisdictions in North Carolina hear pretrial motions immediately prior to jury selection, that is not necessarily the case in Charlotte.

Indeed, a substantial number of legal matters, those involving Motions to Suppress and related Motions to Dismiss for the lack of evidence, may be handled on a separate docket.

As such, the Judge who rules on a Motion to Suppress a particular piece of evidence very well may not be the trial judge.

Given motions hearings may take place weeks and sometimes months before the formal jury trial process begins, the proper preservation of legal issues for appeal may be overlooked.

It’s easy to get caught up in the scrum, arguing back-and-forth and missing the fact that the Court Reporter isn’t even in the courtroom, let alone creating the record – Bill Powers, DWI Lawyer in Charlotte NC

It happens to all of us, prosecutors, judges, and defense attorneys alike; we focus on the limited time we have to present evidence and forget, at least in Superior Court, everything is supposed to be recorded.

For appellate lawyers, very few things are as frustrating as preparing a Record on Appeal with missing testimony, garbled recordings resulting in an unclear, confusing Transcript, and missing evidence that was not properly identified and/or introduced.

Preserving Issues for Appeal

The North Carolina Court of Appeals regularly reminds defense counsel to preserve issues for appeal.

That means renewing objections and exceptions throughout the process.

That applies to the introduction of evidence.

It also is incredibly important to renew objections to the Court’s denial of Motions to Suppress, Motions in Limine, and Motions to Dismiss.

That may seem counterintuitive for defense lawyers.  Why would you have to again object and renew right after the Court ruled on the issue?

That appellate rule is one, in my humble opinion, that merits reconsideration, especially in the context of Bench Trials in Superior Court and the need to proceed with efficiency given how crowded dockets have become post-COVID – Bill Powers, NC Criminal Defense Attorney

The Killer Language

Reading opinions, experienced defense counsel often looks for key language.

If you feel the full measure of the Court’s displeasure over preserving legal issues, basically saying ‘you made a mistake’ by continuing to object and renew, is challenging at best.  I don’t know if appeallate lawyers fully unstand how hard it can be to face their wrath and not lose the jury in the process  – Bill Powers, NC DWI Defense

The killer language:  We note that neither defendant nor his trial counsel objected to (the Officer’s) testimony concerning the evidence the defendant sought to suppress before trial.

Practice Tip:  A ruling on evidence, taking place at a pre-trial hearing on a Motion to Suppress, does not preserve the issue on appeal.  North Carolina v. Oglesby, 361 N.C. 550 (2007).

Practice Tip:  Failing to object and renew a pre-trial motion at trial results in waiver of the issue on appeal.

This is how you do it: 

  • Object to the evidence (including testimony), on the record, before admitted
  • Request the Court to note your exception
  • Object, each and every time, to question/evidence
  • Standing Objections may not preserve the issue for appeal
  • Renew the Motion at the close of the evidence
  • Renew the Motion when the State rests
  • Make a Motion to Dismiss at the close of the State’s case, renewing all motions, objections, and exceptions
  • Renew all motions, objections, and exceptions before introducing evidence for the Defendant
  • Renew all motions, objections, and exceptions at the close of the Defendant’s evidence
  • Renew all motions, objections, and exceptions when Defendant rests
  • Renew all motions, objections, and exceptions all the close of all the evidence
  • Make a Motion to Dismiss at the close of all evidence

That clearly may sound a bit obsessive-compulsive.  Choose your battles and legal issues wisely.

There are tactical considerations to preserving the record.

Ask yourself, “Is this a justiciable issue? Will it make a difference on appeal?  How much are you willing to challenge the Court, to his or her face, while preserving the issue for appeal and not losing the jury in the process?”

The last thing Defense counsel wants to do is tick off the Judge, and particularly the jury, in defending the accused.  There is a big difference between real-world courtroom lawyering and more esoteric appeals in Raleigh – Bill Powers, Criminal Defense Lawyer

Obviously, the Practice Tips should be handled in a manner that is respectful to the Court.

That can be easier said than done, especially if you are required to repeatedly interrupt questioning by objecting to every question.

COME PREPARED:  Have some caselaw handy, particularly cases that discuss preserving the record and legal issues for appeal

ASK QUESTIONS:  It does not hurt to talk to senior, well-seasoned courtroom lawyers

EXPLAIN TO THE JURY during voir dire:  Who you are, your role in the courtroom, and that there may legal issues that require consideration by the Court and you’re not trying to waste their time

The best criminal defense lawyers I know share their knowledge-base and substantial courtroom experience.  I prefer to help other attorneys avoid mistakes, knowing that ultimately results in better courtroom lawyering and promotes justice – Bill Powers, Criminal Defense Attorney Charlotte NC

What is the Standard of Review?

If “the defendant” fails to object, meaning his or her criminal lawyer given that as a practical matter no defendant would even know to object, the Standard of Review, assuming the appellate court doesn’t outright dismiss the appeal, is Plain Error.

Some lawyers lament it seems a bit “got-ya”‘ to adversely affect a Defendant’s substantial right because defense counsel made a hypertechnical mistake, failing to re-object to a legal issue that has already been ruled upon.

The point of pretrial motions, which ordinarily must be filed and supported by an affidavit, is to provide notice to the State and an opportunity to be heard.

The process prevents trial by ambush and is clearly intended to promote the fair administration of justice.

Requiring repeated objections and renewals, demanding counsel set forth legal issues to a painful level of particularity, so as to avoid a “no swapping horses” admonition on appeal, may be fairly inferred as a waste of valuable courtroom time.

It’s also just flat-out unfair and seems a bit rude to keep arguing a point to the Court that has been argued and ruled against.

Plain Error Practice Tips:

  • The defendant carries the burden and must demonstrate that at trial, there was a fundamental error
  • To show an error was fundamental, prejudice must be established by the Defendant
  • Requires examination of the record proper in its entirety
  • Demands the error “had a probable impact on the jury’s finding that the defendant was guilty”
  • Plain error is such that it “seriously affects” the integrity, fairness, or public reputation of the courts (judicial proceedings).

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