All Is Not Lost

What You Need To Know

Attorneys will frequently be heard in conversations with each other discussing how a defendant in a criminal case preserved his right to appeal. The statement refers to the fact that an appellate court does not have the authority to call witnesses, hear new evidence or raise objections that were not part of the record from the trial court.

Appellate courts deal with legal issues raised in written briefs prepared by the attorneys and the record of the proceedings in the court below. The record includes the exhibits and documents filed with the trial court, the transcript of the court proceedings as recorded by the court stenographer or court reporter, and other clerk’s notes and documents contained in the court file.

Preserving Your Right To Appeal

Your criminal trial attorney is doing more than attempting to win a not guilty verdict from the jury. When prosecutors offer documents, testimony or other items into evidence, it is up to your attorney to object if he or she believes the evidence is inadmissible. Hearsay evidence, evidence seized in violation of your Constitutional rights or evidence that should be excluded under state or federal law must be objected to by defense counsel.

Objections to the admissibility of evidence or objections to rulings made by the judge must be noted on the record in order to preserve the issue for review by an appellate court. Failure to do so could result in an appeals court dismissing an appeal or finding that issues raised on appeal for the first time were not preserved in the court below.

Preserving an issue for appeal is as simple as making an objection or otherwise noting your displeasure. As simple as that might sound, it is surprising and, considering the importance of preserving your right to appeal, disturbing to hear the frequency with which judges will interject during a trial and note an objection on behalf of the defendant in a criminal case.

This is usually done when the judge realizes that defense counsel is allowing evidence or testimony to be offered without objecting to its questionable admissibility. While this is normally not the role judges should play during a trial, we will discuss mistakes by defense attorneys and how they can become grounds for an appeal later in this chapter.