Chapter 14 PRESERVATION AND ISSUE SELECTION

JurisdictionMaryland

Chapter 14 PRESERVATION AND ISSUE SELECTION

Tia L. Holmes and Michael P. Redmond1

I. INTRODUCTION

This chapter will help attorneys determine whether a Maryland appellate court will be willing to decide a particular issue in a particular case. Because appellate attorneys seldom enjoy wasting their own time or their clients' money, considering preservation is an essential preliminary step for the appellant, and a potential knock-out punch for an appellee.

Although making sure the issue was preserved by being raised at trial is often the end of this inquiry, sometimes mere preservation is not enough (due to subsequent waiver) and sometimes it is not even necessary (due to mandatory exceptions). More often than not, the answer to what issues will be considered lies somewhere in an extrapolation of Maryland Rule 8-131, Scope of Review,2 but there are provisions relevant to preservation in several other Rules and authorities as well. These include Rule 5-103. Rulings on Evidence, generally, as well as multiple Rules that specifically apply only to civil proceedings3 or only to criminal proceedings,4 although there is a great deal of overlap between the civil and criminal (and even some outright repetition5 ). The guarantees of the U.S. Constitution and the Maryland Declaration of Rights also sometimes bear on preservation issues, most often in criminal proceedings.

Regarded separately, the guidelines in these authorities (and the cases that apply them) can appear confusing and sometimes even contradictory, but taken as a whole, they present a coherent (if not always entirely consistent) doctrine that attempts to promote both efficiency and fairness by generally requiring that appellate courts decide appellate questions, rather than making legal decisions in the first instance. Generally requiring parties to raise issues in the trial court both promotes judicial economy by allowing the trial court to remedy any alleged error immediately and prevents opposing parties from being sandbagged by being forced to argue an issue on appeal without an adequately developed record. The varied exceptions and special rules for specific circumstances discussed below developed where the general rules appeared to be unfair or inefficient. Thus, if a particular rule or exception's application to a particular set of facts appears particularly unfair and inefficient, arguing that a new exception to the rule or exception is always an option (albeit one not terribly likely to succeed).

II. THE BIG PICTURE—WHAT TO ASK ABOUT EACH ISSUE

Although there are specific rules established for certain scenarios (which will be the subject of Section III), as a general matter, three central questions should be asked to determine whether an issue is preserved for appellate review. They are (1) whether the issue was raised or decided below, (2) whether the issue was subsequently abandoned, and (3) whether the issue is one that either requires or allows appellate review even without preservation. If the issue was raised or decided, and not abandoned, it should be reviewable on appeal. But even if it were not raised, or even if it were abandoned, appellate review may still be possible if the issue falls into one of the mandatory or discretionary exceptions to the preservation requirement.

A. Was the Issue Raised or Decided in the Trial Court?

The most basic preservation questions often come down to simply whether the issue was "raised in or decided by the trial court." Rule 8-131(a) (emphasis added).6 This is a disjunctive test. Only one needs to be true. If the trial court made a sua sponte ruling on an issue that neither party raised, it is preserved.7 ,8 If the trial counsel demanded a ruling on an issue on the record, but the trial court resolutely ignored these demands and resolved the case on other grounds, the trial counsel's issue is still preserved.9 Of course, there is still the possibility that the issue was subsequently abandoned (which will be the subject of Section II.B), but without a raised or decided issue, the abandonment question is irrelevant. Sometimes the record offers a clear-cut answer whether a specific issue was raised or decided, but other times there is significant room for debate whether an issue "plainly appears by the record to have been raised."10 In the debated cases, the determination will sometimes depend on where the appellate court draws the line between broad general issues and specific arguments.

1. Did the trial court decide the issue?

The clearest indication that an issue is preserved is when the record shows that the trial judge expressly decided that issue. Whether it is in a written memorandum opinion or in a transcript of an oral ruling from the bench, nothing could be simpler than pointing the appellate court to the decision made below and saying that it should have been decided differently. But if the bench merely comments on an issue that is not actually raised or necessary to its ruling, if it merely recites aspects of the legal or factual scenario that do not appear to be in dispute before it, that is not a decision by the court.11

2. Did trial counsel affirmatively seek a decision on the issue?

Even if the trial court did not decide an issue, it could still be preserved if trial counsel raised it.12 What it means to raise an issue, however, depends a good deal on the scope of the issue and the context in which the issue is presented to the court. Merely providing testimony with factual support for an argument and discussing the issue in response to another party's motion may not be seen as raising the issue at all.13 Whereas orally noting a one-word general objection to the introduction of evidence at trial may count as raising, for the purposes of preservation, almost all objections possible at that time (unless the court requires counsel to explain the basis for the objection).14

The overall idea is that raising an issue means more than just mentioning it.15 Rather, to raise an issue, counsel's words and actions must be fairly understood to be affirmatively requesting a decision from the trial court on this issue and giving the trial court the opportunity to decide it.16 To preserve an issue, a party must make known to the trial court that the party desires the court to take a particular action, or must make clear what action of the court is objectionable.17 Such a request usually comes with some sort of argument supporting that request (and is sometimes identifiable as such a request because of said argument), but the arguments can create their own complications as to the breadth of the issue that was raised.

3. How broad or narrow was the issue raised below?

The Supreme Court of Maryland has explained that it is not specific arguments but rather broad issues that must be preserved for appellate review.18 Thus, a broad argument at trial, such as the challenge to the constitutional reasonableness of a search, may allow the consideration of multiple specific arguments on appeal that were never mentioned below.19 But specific arguments made at trial will not necessarily be treated as part of a broader issue being raised if the more generalized issue has not been made clear to the trial court.20

B. Was the Issue, Though Raised or Decided, Later Abandoned by the Party Now Seeking Review of It on Appeal?

The mere failures to raise issues discussed above are generally described most accurately as forfeitures, as they are the loss of the right to appeal the issues through inaction, whereas the situations when parties lose the right to appeal through intentional choices are described more accurately as waivers.21 But this distinction has little application outside the invited error doctrine and plain-error review, so in other contexts the courts sometimes imprecisely refer to any type of failure to preserve as a waiver. To clarify that we are discussing the voluntary waiver of what would have been an established right, we will speak of these waivers here in terms of abandonment.

1. Express waiver—abandonment by words

When a party's trial counsel expressly states that they are no longer contesting a previously raised or decided issue, that is an express waiver that serves to abandon the right to have that issue reviewed on appeal.22 However, when counsel declares that they have "no objection" to evidence being admitted, the legal and factual context of that statement in the particular case may determine that only some, but not necessarily all, of the party's objections are thereby expressly abandoned.23

2. Implied waiver—abandonment by action (or lack thereof)

Of course, trial counsel can also abandon a previously raised issue by taking actions inconsistent with their continued pursuit of that issue. The most obvious such example is simply failing to act when a particular action is required by the Rules. Thus, even if a party has made its request to exclude certain evidence perfectly clear in a pretrial motion in limine that was denied, "the party seeking its exclusion must still object when the evidence is offered for admission at trial . . . to let the court know that the party still believes the evidence should be excluded."24 "Otherwise, the objection is waived" under Rule 4-323, and the courts will view the party's silence as abandoning the earlier efforts to raise the issued.

3. Abandonment during appeal—failure to argue or cross-appeal

Parties can also abandon otherwise preserved issues through their action and inactions at the appellate level. Besides expressly stating in a brief or at argument that an issue is not being contested, a party may abandon an issue by failing to cross-appeal,25 by failing to substantively argue the issue in their appellant's brief,26 by failing to mention the issue in the "Questions Presented" section of their brief,27 by failing to pursue the issue in the intermediate appellate court (when seeking review in the Supreme Court of Maryland), or by not including it in the...

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