Appellate review of unpreserved questions in criminal cases: an attempt to define the 'interest of justice'.

AuthorCunningham, Larry
  1. INTRODUCTION

    As a general rule, an appellate court can consider a claim on appeal only if the appellant properly preserved it in the court below. A claim or issue is preserved if it was presented to the lower court at the proper time and with sufficient specificity so that the trial court had an opportunity to correct the alleged error at the time it was made. Preservation is thus accomplished by a simple, timely on-the-record "objection" along with a brief explanation of its basis. Ordinarily, a court will not grant relief on a claim that is presented for the first time on appeal.

    Preservation serves important purposes. A timely and specific objection alerts the trial court and the adversary to the alleged error, giving both an opportunity to correct the problem or take ameliorative action, thus potentially obviating the need to raise the issue on appeal. It thus encourages truth-seeking, the efficient resolution of the case, and the conservation of appellate resources. Preservation also discourages gamesmanship by preventing a party from saving a "trump card" argument until appeal.

    However, preservation is not without its costs, particularly to a criminal defendant. When an attorney unwittingly fails to preserve an argument, his or her client may serve a potentially lengthy sentence even though an otherwise viable claim for a new trial may appear on the record.

    In recognition of this dilemma, some legislatures and courts have crafted a narrow exception to the preservation requirement. In limited circumstances, an appellate court may consider an unpreserved question even though no objection or other protest was made to the trial court. This article will consider the approaches taken by the federal courts and New York state in this area. On their face, the approaches seem very different. The federal rule is detailed, specific, and structured. New York, on the other hand, simply directs its intermediate appellate courts to consider unpreserved questions if doing so is "in the interest of justice." Despite these apparent differences, the rules are actually quite similar in practice.

    In the federal system, the Court of Appeals or Supreme Court can notice an unpreserved issue if it constitutes a "plain error." Decades of Supreme Court precedent have resulted in a four-part test to determine whether an error qualifies as "plain." Ultimately, however, the plain error rule is unsatisfactory for two reasons. First, one aspect of the test boils down to whether the defendant can show prejudice by the failure to preserve the claim. In other words, the defendant must demonstrate a successful appellate claim in order to overcome the preservation hurdle. Thus, preservation is fairly meaningless. If the defendant has a winning argument on the merits, the court will dispense with preservation. If, on the other hand, the defendant's claim would fail anyway, the court will apply preservation to bar the claim. The result, either way, is that the court is looking beyond the failure to preserve and analyzing the merits of the claim, creating exactly the type of inefficiency that preservation is designed to avoid.

    Second, the federal rule is problematic because it provides discretion to the appellate court to determine, notwithstanding the presence of a prejudicial error, whether a "miscarriage of justice" would result if the plain error rule was not applied. Yet, the courts have not provided a workable definition of "miscarriage of justice," except most agree that the plain error rule should be used to free an innocent person.

    New York has a similarly unworkable rule. In New York, only intermediate appellate courts--typically, the Appellate Division of the Supreme Court--can decide unpreserved questions. Statutory authority provides that they may do so only in the "interest of justice." No further guidance or explanation about this ambiguous term is provided by statutes or case law. The result is a hodgepodge of cases that seem to suggest that an appellate court will exercise its interest-of-justice jurisdiction only if the defendant has a winning claim on the merits. Otherwise, it will find the issue to be unpreserved and will decline to exercise its interest-of-justice authority to review the claim. Thus, as with the federal plain error rule, New York's preservation doctrine is essentially a meaningless smokescreen.

    In this article, I will propose a new way of looking at these preservation exceptions in criminal cases. I suggest a number of substantive factors to aid courts in deciding whether the interest of justice warrants appellate review. I also encourage courts to be more explicit in explaining why they are or are not granting exceptions to preservation on a case-by-case basis.

    I will proceed as follows: In Part II, I will discuss the competing policies between preservation and defendants' due process rights. In Part HI, I will compare and contrast the federal and New York exceptions to preservation, noting the flaws in each test. In Part IV, I will demonstrate why a factors test would better serve the goals of preservation while providing for needed exceptions. I will also outline a workable factors test for courts to apply.

  2. THE PRESERVATION DOCTRINE

    1. The Rule

      Except in rare instances when they exercise original jurisdiction (1) or when the law provides for a de novo trial, (2) appellate courts exist solely to determine whether trial courts committed reversible errors in proceedings below. (3) An appeal is not a do-over of the original proceeding. (4) Rather, an appellant--the party prosecuting the appeal--must assert various claims of error. These are specific points in the proceeding below in which someone is alleged to have committed a mistake. Perhaps the trial judge erroneously admitted a piece of evidence. The prosecutor made an inappropriate remark in summation. Defense counsel improvidently conceded a point. Or, the jury found the defendant guilty when it should have acquitted. These are all examples of claims that can, and typically are, raised in an average criminal appeal.

      Applying the appropriate standard of review, the appellate court determines whether it agrees with the appellant that there was error. However, not all error warrants reversal. The second step of the appellate court's inquiry is to determine whether a particular error amounts to reversible error. Some errors are "harmless" and do not require reversal. (5)

      In conducting its review, an appellate court is ordinarily limited to the record below: the papers submitted to the clerk and the minutes of any proceedings before the trial judge. An appellate court cannot, and will not, take testimony anew or consider other new evidence.

      The preservation doctrine is a natural outgrowth of these fundamental principles of appellate practice. Briefly stated, a claim is "preserved" if it was first presented to the trial court, at some readily identifiable portion of the record, with sufficient specificity, at a time when the error could have been corrected. (6) If, however, a claim was never presented to the court below, an objection was made but it was untimely, the objection was "off-the-record," or the objection lacked specificity, the claim is said to be "unpreserved." With rare exception--discussed in Part III--an appellate court will not consider unpreserved issues on appeal. (7) The forfeited issue is simply passed over, its merits never addressed.

      During a trial, a claim is preserved if a timely objection was made and either the basis is stated on the record or is fairly obvious from the context. (8) For example, if a party believes a particular question by an adversary calls for inadmissible hearsay, the party must object and state, briefly, the reasons for the objection, unless it is clear that hearsay is the ground of the protest. (9) Thus, preservation in this instance can be accomplished simply by two words, "Objection. Hearsay." (10) The court rules on the objection, either sustaining or overruling it. Some jurisdictions have now eliminated the requirement that a party must "take an exception" to the court's ruling. (11) Rather, the objection itself preserves the issue for appeal, assuming it was overruled. Of course, if it was sustained, there is nothing to appeal from since the party obtained exactly what it wanted: a legal ruling in its favor.

      A party may argue on appeal that there was error notwithstanding the sustained objection, because the proverbial bell could not be "unrung" by the court's ruling. (12) The party may assert that the question itself was so egregious that it warranted either a cautionary instruction or even a mistrial. Here, too, these alleged errors--the absence of a curative instruction or a mistrial--must be preserved. To preserve the claim for appeal, counsel must have asked the trial court to issue a curative instruction or to declare a mistrial, notwithstanding the sustained objection. (13) The failure to do so forfeits the claim on appeal. Stated simply, a party must continue protesting and asking for relief from the trial court until it obtains a negative ruling. An overruled objection, a refusal to issue a curative instruction, or a denial of a motion for mistrial are all negative rulings that indicate the issue has been fully preserved.

    2. Reasons for the Rule

      Several reasons are offered for the preservation doctrine, which has been characterized as going "to the heart of the common law tradition and the adversary system," (14) as "a natural and familiar outgrowth of our adversarial system of justice," (15) and as a doctrine that serves "a legitimate State purpose." (16) Without it, "the State's fundamental interest in enforcing its criminal law could be frustrated by delay and waste of time and resources invited by a defendant." (17)

      1. An Opportunity for the Adversary and Trial Court to Correct the Defect or Problem in the First Instance (18)

        A timely objection--in other words, made at the...

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