The Importance of Preserving the Record for Appeal in Criminal Cases

July 9, 2021 Don Pumphrey, Jr. Criminal Defense Social Share

Litigation is tricky for more reasons that one. The stress of trial can cause some attorneys to forget the importance of preserving issues for appeal or ensuring that the record is all-encompassing. An attorney must plan ahead and preserve the record for appeal, because “if it’s not in the record, it does not exist,” as far as appellate review goes.[1]

What is “the Record”?

The record includes everything that was said (the court reporter’s transcript of the proceedings) and everything that was read (any pleadings, motions, exhibits, written materials, etc. presented to the court during the proceeding).[2] A record is essentially a cold copy of everything that happened at trial and is used by the appellate court to see whether the trial court erred on a particular issue, or to navigate another legal issue.[3] Without a record, the appellate court has nothing to review, so it is essential that each issue is preserved on the record for appeal.

Keep in Mind Defense Counsel’s Strategy

While ensuring a record is complete and ripe for appeal is critical, experienced criminal defense attorneys develop strategies for trial that might include not pursuing a certain defense during proceedings. An attorney’s trial strategy is critical in developing a complete and vigilant defense. While the checklist below outlines areas in which an attorney can preserve the record, a seasoned criminal defense attorney might choose not to do so in the best interest of the client’s case. Ultimately, your attorney is aimed at winning the instant case against you. Therefore, that interest might overcome preserving an issue on the record.

A Trial Lawyer’s Checklist for Preserving the Record

Though this does not include every step that would preserve error in every situation, this checklist is a useful start to show how many areas record preservation can affect[4]:

• Pretrial[5]
  • Motions in Limine
    • A motion in limine is a request that the court rule on the admissibility of a certain piece of evidence.[6]
    • Your lawyer should get rulings on the motions before trial begins. If an issue in a motion is brought up during trial, your lawyer should object at the first opportunity on the same grounds cited in the motion.
  • Expert Testimony
    • Your lawyer should ask for a Daubert/Frye hearing and assert any other challenges based on pertinent evidentiary rules.
    • Daubert and Frye hearings are used to determine the reliability of expert testimony for admission.[7]
  • Pretrial Stipulation
    • Your lawyer should ensure that issues not pleaded, or the subject of discovery are not included at trial, and that any evidentiary exhibits or witnesses are not included improperly.
  • Trial[8]
    • The Record
      • An appeal can only be sustained off of what is in the trial record. Therefore, your lawyer should ensure that everything is written down on the record. This includes sidebars, chamber conferences, depositions that are introduced at trial, recordings that are played at trial, informal counsel conferences to discuss jury instructions, verdict forms, or other legal issues discussed during trial. All documents should be filed and not just handed to the presiding judge. Your lawyer should also ensure that all actions or emotions in the courtroom are on the official record, including crying, shouting, and demonstrative aids.
    • Rulings
      • Each ruling should be on the record. Your lawyer should ensure that each ruling is repeated or restated if the ruling is not clear and definitive the first time.
    • Voir Dire
      • Your lawyer should ensure that all objections are renewed right before the jury is sworn. In order to perverse the denial of a challenge for cause, your lawyer should move to strike the juror, exhaust all peremptory strikes, request additional peremptory strikes, and identify the specific juror who they would strike with the additional peremptory strike. In order to preserve the improper use of a peremptory challenge, your lawyer should state that the juror is part of a distinct group and shift the burden to the proponent of the strike so that they are obligated to proffer a neutral explanation for the strike. If the peremptory challenge raised by your layer is improper, your lawyer should articulate specific non-group-based facts that are the basis for the strike.
    • Evidentiary Objections
      • Your lawyer should ensure that all objections are specific and made as quickly as possible. Your lawyer should also make clear that their objection stands and ask for a limiting instruction. Some objections must be renewed, so your lawyer should be vigilant about renewing these objections as trial progresses. If something extremely prejudicial occurs that would make the trial unreliable, your lawyer should consider asking for a mistrial. If testimony is objectionable, your lawyer can move to strike testimony when it concludes. Your lawyer should not withdraw their objection after a ruling. If a witness or exhibit not disclosed during pretrial stipulation is introduced, your lawyer should make a timely and definitive objection.
    • Expert Testimony
      • Your attorney should raise all issues relating to an expert’s qualifications. Your attorney should also object to any expert opinion not disclosed during the discovery process and move to strike or for a mistrial is such opinions are introduced. Your lawyer should be vigilant in regard to expert opinions that “open the door” to otherwise inadmissible evidence. Your attorney should make sure to proffer your expert witness’s opinion if not allowed into evidence.
    • Motion for Judgment of Acquittal
      • This motion asks the court to find that, at the close of the opposing party’s case in chief, or at the end of the defense’s case, that there is insufficient evidence to support a conviction.[9]
      • At the end of the State’s case in chief, or the opposing party’s case, your attorney should move for a judgment of acquittal. They should make a renewed motion for judgment of acquittal at the close of their case-in-chief as well. In this motion, your lawyer should move in writing, if possible, and address all claims, defenses, and elements.
    • Jury Instructions
      • Your lawyer should craft jury instructions applicable to the facts of your case and file them with the clerk’s office. Then, your lawyer should have a conference relating to the instructions on the record where they get clear rulings on the instructions and all objections. It should be made clear on the record, even if the judge decides that such instructions are not going to be introduced at trial, what your attorney believes the instructions should be. Your attorney should remain vigilant during the reading of instructions and object to anything inconsistent with the judge’s ruling on them.
    • Closing Argument
      • If your attorney does not make timely objections, they risk waiver of that issue. If your attorney’s objection is sustained, they should request a curative instruction. If the opposing party’s closing argument is so prejudicial as to remove fairness from the trial, your attorney should move for a mistrial.
    • Post-Trial[10]
      • Your attorney should consult appellate counsel immediately after the verdict to see if the record can be bolstered by any post-trial motions.

Tallahassee Criminal Defense Attorney

As you can see, preserving the record for appeal is pivotal in accessing any post-trial relief. If you or a loved one are facing criminal charges, it is extremely important to retain an experienced and educated attorney who will ensure your record is all-encompassing. Don Pumphrey and the members of the legal team at Pumphrey Law Firm know the importance of a preserved record and will make sure to raise all applicable issues. Call a Tallahassee criminal defense attorney today at (850) 681-8888 or send an online message today to discuss your options during an open and free consultation with a criminal defense attorney in our legal team.

This article was written by Gabi D’Esposito

[1] Benjamin G. Shatz, Preserving Issues for Appeal, Survival Guide for Attorneys, available at: https://www.manatt.com/Manatt/media/Media/PDF/06-Preserving-Issues-for-Appeal,-29-LA-Lawyer-Survival-Guide-for-New-Att.pdf.

[2] Id.

[3] Id.

[4] Preserving the Record for Appeal: A Trial Lawyer’s Checklist, Carlton Fields, available at: https://www.carltonfields.com/services/practices/appellate-trial-support.

[5] Preserving the Record for Appeal: Top Ten Mistakes, Sheppard Mullin, available at: https://www.sheppardmullin.com/article-15.

[6]  Writing for Trial: The Motion in Limine, Georgetown University Law Center, available at: https://www.law.georgetown.edu/wp-content/uploads/2018/11/Updated-Writing-Center-Handout-Motions-in-Limine.pdf.

[7] Thomas S. Edwards, Jr., and Jennie R. Edwards, The Daubert Expert Standard: A Primer for Florida Judges and Lawyers, The Florida Bar Journal (March 2020), available at: https://www.floridabar.org/the-florida-bar-journal/the-daubert-expert-standard-a-primer-for-florida-judges-and-lawyers/.

[8]  Gary L. Sasso, Preserving the Record, An Exercise in Trial Advocacy, The Appellate Advocate (2003).

[9] Fla. R. Crim. P. 3.380.

[10] Supra note 4.

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