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The Joy Of Appellate Preservation: 5 Steps To Make You A Better Lawyer

Wazzzup fellow defense attorneys. Hut One, Hut Two, Hut Three, Hut! Ol Dirty W&K live and uncut. Listen, we need to sit down and have a little talk. This is awkward. You see...we’ve been getting your appeals. And that means we’ve been reading your transcripts. And it turns out that some of you don’t know diddly poo about how to preserve issues for appeal. Right now some of you might be saying:

First off, that was a long time ago. We learned appellate preservation the hard way. It took years and many trials worth of botched appellate issues and getting raked over the coals by Court of Appeals judges. We want a better life for you. So pour a glass of your finest Four Loko and cozy up. We're going to make you a lean, mean, appellate preserving machine in 5 easy steps.

Lesson 1: When Your Client Pleads Guilty (Or No Contest), You’ve Preserved Nothing For Appeal.

You put on a killer pre-trial motion to suppress all the terrible evidence implicating your client. All the caselaw was on your side but that mean old judge slept through the whole hearing and shot you down. Now you’ve got nothing to work with for trial so you plead your client guilty and note your appeal. Oooooh boy, you can’t wait to get into the Court of Appeals (CAV) to give that judge a stone cold stunner and get a reversal. Well, here’s the response that you’re going to get from the CAV:

When your client pleads guilty, you've waived basically every possible appellate issue. Whether it’s a Miranda issue, a 4th Amendment issue, a statutory interpretation issue, a sufficiency of the evidence issue; it all gets flushed down the toilet when your client pleads out. The only way to preserve your issues is by either (A) taking the case to trial or (B) entering a conditional guilty plea. An important note on conditional guilty pleas. You need to be very specific at the conditional guilty plea hearing about what issue you’re preserving. For example, “My client is entering a conditional guilty plea preserving his right to appeal the denial of a pre-trial motion to suppress the evidence heard on October 28, 2019 before the Honorable Judge Juan Valdez."

Lesson 2: Always Do Both Motions To Strike

This is appellate preservation 101, and yet we see experienced attorneys who don’t bother doing motions to strike. Whether you’re doing a bench trial or a jury trial, you need to do motions to strike in every case. And it’s not enough to only do a motion to strike after the Commonwealth’s evidence. You need to do a renewed motion to strike if you’ve presented any defense evidence. Do you want to see what we look like when we're reading transcripts and you didn't do motions to strike?

If you don’t do the motions to strike, you have waived any challenge to the sufficiency of the evidence. It’s that simple. Closing argument alone doesn’t get the job done. If you messed up and forgot motions to strike in the heat of trial, you haven’t screwed the pooch yet. You can still preserve sufficiency of the evidence by doing a post-trial motion to set aside the verdict.

An important note on motions to strike: We get transcripts that look like this.

Commonwealth’s Attorney: The Commonwealth Rests

Defense Attorney: Your honor, I have a motion to strike.

Judge: That’s denied.

Defense Attorney: Thank you

This shit doesn’t get the job done. You need to be specific on your motion to strike. Whatever you’re arguing the evidence hasn’t proven, you need to say it. For example, “Your honor, the evidence has failed to prove malice because of X, Y, Z,” or “Your honor, the evidence failed to prove an intent to distribute because of X, Y, Z.”

Lesson 3: Dude, You Have To Object

We get transcripts that look like this:

Witness: And I talked to my friend’s uncle who said that the defendant told him that he shot the victim and also that the defendant loves to kill people and he has promised to do it again if he’s found not guilty.

Defense Attorney: Objection! Hearsay! Confrontation! Improper Character Evidence! Outrage!

Judge: [shooting daggers at defense attorney] Sit down, this witness is a-testifyin'!

Defense Attorney: [attorney shrivels into chair] I’ll withdraw it.

You have to object to preserve issues. If you don’t object and come complaining on appeal for the first time, the CAV will send you a per curium order that says:

This is called the contemporaneous objection rule. If there’s objectionable evidence, testimony, jury instructions, voir dire questions, weird stuff the judge is doing, etc, you have to (1) actually object, (2) object immediately, (3) maintain your objection. We know from experience in the courtroom that it’s not always easy. Some judges are hostile. The record won’t reflect that the judge was staring you down like he was going to rip your throat out. You have to stick to your guns, object, and state a clear reason for your objection. If the judge talks over you or tries to move you along, you have to have the presence of mind to say something like, “Your honor, I have to make a record.”

Lesson 4: If You’re Denied From Getting Evidence In, You Have To Make A Proffer

This is another situation that happens all the time. A defense attorney tries to get in testimony or an exhibit and gets shot down. It usually looks something like this in a transcript:

Defense Attorney: I call Dr. Peter Venkman, expert on eyewitness identification.

Commonwealth Attorney: I object! This testimony will invade the province of the jury as the fact finder!

Judge: This testimony is all common knowledge and invades the province of the jury. Move on counsel.

Defense: okily dokily

If you’re ever denied from presenting evidence, you absolutely have to make a proffer of what that evidence would have been. In the above example, in order to preserve the issue for appeal, the defense attorney would have to say something like,

“Your honor, if Dr. Venkman was permitted to testify, he would have said…'This ID involves cross-racial ID, weapons focus, unconscious transference, that witness certainty is meaningless, etc.”

You need to be specific in your proffer. The CAV is just itching to say they can’t rule on your issue because they don’t know what the testimony would have been.

If you’re denied from getting a tangible piece of evidence admitted like a photo, map, transcript, etc, then you need to ask for the exhibit to be admitted into the record as a denied/refused exhibit. This also goes for denied jury instructions. This is a scenario we’ve seen:

Judge: I’ve read the proposed jury instructions. I’m going to reject this instruction proffered by the defense.

Defense Attorney: Judge, it’s a really important instruction.

Judge: Your exception is noted.

On appeal, nobody has any freaking clue what instruction was denied. Your best practice is to (1) read the denied instruction into the record, (2) state why it’s necessary, (3) admit the denied instruction into evidence.

Lesson 5: If The Commonwealth Is Being Shady, You Need To Ask For A Mistrial

A scenario that comes up is when a prosecutor says a bunch of objectionable stuff usually in a closing.

Commonwealth Attorney: Ladies and gentlemen, this man here is a guilty dirty dog [points finger at defendant]. I know he’s guilty because I’ve been doing this for a long time and I know a criminal when I see one. And he hasn’t even taken the stand or presented evidence to defend himself. Does that sound like an innocent man to you?

Defense Attorney: Objection! This is improper argument!

Judge: It’s closing. I’ll allow it.

You might think that objecting to improper statements in an opening statement or closing argument is enough to preserve it for appeal. You would be wrong. You need to object AND ask for a mistrial (or cautionary instruction.) This can be a really tough one because many judges hate objections during closing arguments. But that’s why they pay you the big bucks.


The most fundamental thing that you can do to get better at preserving issues for appeal is to always be asking yourself the question, "What is the record going to look like for somebody looking at it for the first time who wasn't in the courtroom?" Things that seem obvious in the courtroom don't always come across in transcripts. If you have a trial coming up and you're worried about preserving an appellate issue, feel free to give us a call. We probably messed it up at some point and can steer you in the right direction.

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