2.7 Protecting the Record in the Trial Court and A assigning Error in the Appellate Court

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

2.7 PROTECTING THE RECORD IN THE TRIAL COURT AND ASSIGNING ERROR IN THE APPELLATE COURT ¹⁰⁹

2.701 Objections in the Lower Court and Assignments of Error on Appeal.

A. In General. The Rules of the Supreme Court of Virginia provide that neither the Court of Appeals ¹¹⁰ nor the Supreme Court ¹¹¹ will consider error assigned to any ruling of a trial court or tribunal below unless an objection was stated with reasonable certainty at the time of the ruling. ¹¹² The rationale for the rule is simple: a contemporaneous objection allows the trial court the opportunity to rule intelligently and to avoid being second-guessed on appeal for matters never raised below. ¹¹³ It is essential, therefore,

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that counsel state objections with particularity in the lower court. ¹¹⁴ Nevertheless, once a party has objected and thoroughly raised an issue or argument in the trial court, the objecting party need not make repeated objections. ¹¹⁵ In 2010, the rules were revised to conform Court of Appeals Rule 5A:18 to Virginia Supreme Court Rule 5:25. The Court of Appeals rule had previously required objections "to be stated together with the grounds therefor at the time of the ruling." These 2010 revisions replaced the italicized language with the following language already in Virginia Supreme Court Rule 5:25: objections must be stated "with reasonable certainty at the time of the ruling." In Scialdone v. Commonwealth, the Supreme Court, for instance, held that the purpose of the contemporaneous objection rule had been satisfied when lawyers held in summary contempt during a trial objected and moved for a stay of any proceedings, even though they did not use language identifying a deprivation of due process—the body of law they relied on in the appeal. ¹¹⁶ But one should be careful not to rely too much on such decisions that read the contemporaneous objection rule generously. Most decisions on the contemporaneous objection rule from both of Virginia's appellate courts read the contemporaneous objection rule strictly; the courts almost always find waiver of the point at issue prevents review. Even after the change to the rule, the Court of Appeals has continued to apply the contemporaneous

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objection rule vigorously. ¹¹⁷ Moreover, the Scialdone decision holding that the appellants had not waived their appeal points under Rule 5:25 should not be taken as a departure from the traditional requirement of clearly raising an objection and argument in the trial court if one wishes to preserve appeal points. Instead, the decision seems to reaffirm prior rulings, such as those cited below, in which the court recognized that waiver should not apply when either the appellant moved in limine prior to trial and thereby preserved objections to introduction of evidence, or otherwise allowed the trial court the opportunity to know of the party's objection(s) and to address them. In short, whenever in doubt, counsel would do well to reaffirm any and all objections on the record and avoid the risk of waiver.

Common Pitfall: Failure to preserve error in the lower court remains the most common reason that parties' arguments are not heard on the merits of an appeal. Neither the Supreme Court nor the Court of Appeals has given any indication of a tendency to lessen the number of cases that reach this fate when the error is not preserved in the trial court.

Both Rules 5A:18 and 5:25 allow an exception to the contemporaneous objection rule "for good cause shown or to enable [the Court] to attain the ends of justice." Counsel should not, however, count on the appellate courts' applying this exception. As the Virginia Supreme Court emphasized in a leading case, Spitzli v. Minson, ¹¹⁸ the good cause exception is rarely successful.

The Court of Appeals likewise rejects the "ends of justice" exception to the contemporaneous objection rule unless the record affirmatively shows that a miscarriage of justice has occurred, not when it merely shows that a miscarriage might have occurred. ¹¹⁹ The lesson is clear: a trial attorney

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should never rely on the exception but instead should specifically identify the objection to the trial court at the time of an error.

Even if an error is preserved by a contemporaneous objection in the trial court, the error can still be waived in another way. If the appellant fails to include an error in a proper assignment of error, the point will be deemed waived even if it was preserved in the trial court. Assignments of error are an aspect of appeals that require careful attention. Counsel must not only assign the error in the appropriate brief but also ensure the assignment is crafted broadly enough to cover every argument to be made on appeal. Indeed, rules applicable to both the Supreme Court and the Court of Appeals on handling assignments of error have made the requirements more stringent than before and, as the following quote shows, more likely to expose unpreserved error:

Under a heading entitled "Assignments of Error," the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below—or the issue(s) on which the tribunal or court appealed from failed to rule—upon which the party intends to rely, or the specific existing case law that should be overturned, extended, modified, or reversed. An exact reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken shall be included with each assignment of error. If the error relates to failure of the tribunal or court below to rule on any issue, error must be assigned to such failure to rule, providing an exact reference to the page(s) of the record where the issue was preserved in the tribunal below, and specifying the opportunity that was provided to the tribunal or court to rule on the issue(s). ¹²⁰

As if to emphasize the significance of the assignments of error requirements, Rule 5:1A allows the court to issue an order to show cause why

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a defect in an appeal ought to be allowed to be cured. ¹²¹ The rule typically allows the court to correct defects in appeals, particularly appellate filings, short of dismissal. However, the rule specifically excludes from the ability to be cured the requirements noted above for assignments of error. ¹²² The message is clear: the court considers its requirements on the assignments of error to be fundamental; if they are not followed, the appeal will fail.

Common Pitfall: Even if counsel preserves error in the trial court, the failure to assign error properly on appeal results in waiver of that error. In the case of poorly drafted assignments of error, arguments not fairly within the scope of the assignment of error cannot be made. The assignment-of-error rules demand not only specificity in the errors appealed but also specific references showing that those errors were preserved.

Both the Virginia Supreme Court and Court of Appeals consistently refuse to consider issues not properly preserved for appeal. In Black v. Eagle, ¹²³ the court stated: "Appeals are awarded based on assignments of error and the language of the assignments may not be changed after the appeal is awarded." Likewise, the Virginia Supreme Court and the Court of Appeals will not consider on appeal arguments not made to the trial court. The recent amendments requiring both clarity in the assignments of error and specific references to where errors were preserved in the transcript or record reflect the intent to continue an insistence on preserving error in the trial court and on appeal.

When a case has been appealed for the second time, the Supreme Court will not consider an issue when the appellant did not include the assignment of error in the first appeal. ¹²⁴ Likewise, a demurrer to an amended complaint that does not incorporate earlier pleadings by reference brings only the amended pleadings for review. ¹²⁵ The lesson is to think in

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terms of preserving error by first ensuring any potential errors are objected to and put in the record below and then, on appeal, that specific assignments of error preserving the bases for the appeal are stated.

B. Pretrial Objections in the Lower Court. The Commonwealth has a limited right to a pretrial appeal in felony cases. ¹²⁶ Because the Commonwealth cannot take this appeal after jeopardy attaches, Virginia law requires that cognizable issues be raised in the circuit court by the defendant before trial. ¹²⁷ Otherwise, a defendant could easily neutralize the Commonwealth's right to appeal simply by waiting until jeopardy attaches before objecting.

The following objections and motions must be made in writing and filed, with notice to the commonwealth's attorney, not later than seven days before trial:

1. Suppression of Evidence. Defense motions or objections seeking the suppression of evidence on the grounds that the evidence was obtained in violation of the Fourth, Fifth, or Sixth Amendment to the Constitution of the United States or section 8, 10, or 11 of article I of the Constitution of Virginia proscribing illegal searches and seizures and protecting the right against self-incrimination.

2. Dismissal of Warrant, Information, or Indictment. Defense motions or objections seeking dismissal of a warrant, information, or indictment, or any count or charge thereof, on the ground that a statute on which it was based is unconstitutional. ¹²⁸

The court may, however, for good cause shown and in the interest of justice, permit the motions or objections to be raised later. A hearing on all those motions or objections must be held not later than three days before trial, unless this period is waived by the accused. ¹²⁹

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C. Specific Principles of Preserving Error at Trial.

1. Testimony and Exhibits. Objections must be made when an exhibit is offered or when objectionable testimony is elicited...