Preserving error in jury trials: rules to remember.

• Author: Gunn, Tracy Raffles
• Position: Florida

While preservation of error is important at all phases of the trial court proceeding, most unintentional waivers occur during the course of the trial itself.

An appellate court generally cannot remedy an erroneous ruling below unless the error challenged on appeal was properly preserved in the trial court. It is well established that a party seeking appellate relief or a new trial must have given the trial court an opportunity to correct the alleged error(1) The failure to do so changes, in effect, the appellate court's standard of review to the strictest standard applied--that of fundamental error. Thus, an appellate court will not review a trial court's ruling on any issue, substantive or procedural, unless the appellant can establish either that it preserved the issue in the trial court or that the issue constitutes fundamental error.(2) Since fundamental error is limited to a narrow set of circumstances, it is essential in all cases to ensure that any error occurring at the trial court level is properly preserved for appellate review.

There are different rules for preservation of error at every stage of a case. Basically, however, preservation requires that objections and arguments be made at the trial level, and that they be made with enough specificity to allow the appellate court to determine that the issue presented to it is the same one passed upon by the trial court. Absent a showing of fundamental error, the appellate court simply will not engage in review of a matter which the trial court was not given an opportunity to address.

While preservation of error is important at all phases of the trial court proceeding, most unintentional waivers occur during the course of the trial itself. The following will provide a helpful, but by no means exhaustive, list of those trial events which most frequently create questions of preservation of error on appeal.

Jury Selection Issues

* Peremptory Challenges. A party may not use peremptory challenges in a discriminatory fashion.(3) A party seeking to question the other side's use of a peremptory challenge must make a timely objection. The objection will be insufficient unless it demonstrates on the record both that the challenged persons are members of a distinct racial or gender group and that there is a strong likelihood they have been challenged solely because of their race or gender. Absent such a timely and proper objection, an opponent of a peremptory challenge may not inquire into the opposing side's motives for exercising the challenge.(4) Most cases hold that there must be a formal objection, and that simply requesting a Neil inquiry(5) or noting that the challenged juror is of a different race or gender than the objecting party is insufficient to preserve any error.(6)

* Challenges for Cause. A party can preserve an error in the denial of a challenge for cause only by 1) exhausting all his or her peremptory challenges; 2) thereafter seeking additional peremptory challenges; 3) having the request for additional challenges denied; and 4) identifying on the record which objectionable jurors he or she would excuse if granted additional challenges.(7)

* Swearing the Panel. Regardless of whether the question arises from a challenge for cause or a peremptory challenge, a voir dire issue is not preserved for appeal unless the trial lawyer again objects to the entire jury immediately before it is sworn.(8) Such objection can be made either by renewing the motion to disqualify or by accepting the jury subject to the earlier objection.

Evidentiary Issues

* Motions in Limine. A motion in limine is not sufficient to preserve an error in the admission of evidence. A...