This article addresses the problem of defendants in direct criminal appeals raising issues regarding jury instructions that were not preserved in the trial court. Florida courts have traditionally handled this problem with the paradigm that developed over many decades for use in all appeals, under which:
1) Preservation is required for three basic reasons: a) promoting judicial economy and order by encouraging the correction of errors in the trial court; b) keeping trial judges in their proper neutral role, which could be compromised by a lax preservation rule that encouraged judges to intervene sua sponte; and c) preventing sandbagging, which is defined as "[a] trial lawyer's remaining cagily silent when a possible error occurs at trial" (1) or even "intentionally inject[ing] error into the trial[,] and then await[ing] the outcome with the expectation that [an unfavorable outcome] will be automatically reversed;" (2) but 2) relief is granted for some particularly serious unpreserved errors which Florida courts call fundamental errors provided that 3) the error was not "invited"; i.e., counsel did not deliberately cause or allow the error to occur, either as a legitimate trial tactic or to sandbag. (3) However, there are good reasons not to strictly apply this paradigm in direct criminal appeals.
Criminal appeals are unique, primarily because criminal defendants have due process rights that other parties do not. This includes both specific rights--e.g., to require the [s]tate to prove all elements of the precise offense charged beyond reasonable doubt to a properly instructed jury--and a general right to effective assistance of counsel, with one of counsel's primary duties being to insure that all these other rights are fully protected.
The public's interest in criminal appeals, as compared with other types of appeals, is also unique and significant. With convictions after trials, appeals are almost automatic; and, if that appeal fails, collateral proceedings are readily available and often used. But if the defendant is indigent (as most are), all this is mostly cost free, which means the public pays. Social costs are incurred if courts refuse to address an unpreserved issue on direct appeal, only to later grant postconviction relief when the same issue is repackaged as a claim of ineffective assistance of trial counsel (IAOC). (4)
In light of these concerns, Florida courts have begun addressing unpreserved issues in criminal appeals by using a second paradigm: an IAOC claim (which is also unpreserved). IAOC claims have two elements: deficient performance (Were counsel's actions reasonable?) and prejudice (a "reasonable probability that, absent the error," the outcome would have been different). (5) IAOC claims can be raised on direct appeal if both elements are "apparent on the face of the record." (6)
Most IAOC claims are not so apparent. The prejudice element presents no unusual problems; appellate courts regularly address issues of the harm caused by both preserved and unpreserved errors. It is the deficient-performance element that causes the problem in direct appeals.
With most IAOC claims, the appellate record will be insufficient to address the deficient-performance element because, without an explanation of the reasons for the challenged acts of counsel, we cannot determine whether they were reasonable. But the record sometimes contains, from counsel's own mouth, an explanation for those actions. (7) The reasonableness of counsel's actions can also be objectively determined when they are clearly based on ignorance of basic facts (e.g., what exactly is the defendant charged with (8)) or relevant law. (9)
Thus, in the present context, IAOC claims focus on the possible reasons for counsel's failure to preserve the issue and, if there is no valid reason, the harm that error caused. As will be seen, the traditional paradigm, as applied in criminal context, essentially focuses on the same factors. The two paradigms should be merged into a single rule. Unpreserved jury-instruction issues should be addressed if it is clear in the record that 1) error occurred; 2) there is no valid tactical reason for counsel's allowing that error to occur; and 3) counsel wasn't sandbagging.
The first two elements intertwine. Counsel may believe there is good reason to let "error" occur (e.g., agreeing to a modification of a standard instruction because counsel believes it helps the defendant). Thus, whether something that drew no objection in the trial court was, from the defendant's perspective, truly an error may depend on why counsel didn't object. The second and third elements also intertwine to some degree; taken together, they ask whether it is possible that counsel knowingly and intentionally allowed the error to occur, either to sandbag or as what counsel believed was a reasonable trial tactic. For present purposes, the crucial point here is that, either way, the error was not the result of counsel's mere negligence or ignorance of law.
But if it is clear to the appellate court that error did occur, and that no reasonable lawyer would have allowed that error to occur, and that counsel wasn't sandbagging, then the court has, in effect, concluded that the issue has substantive merit. It should then determine whether the error was harmful. If the answer to any of these questions is unclear, the issue should be left for postconviction proceedings.
This proposed rule is the best way to prevent sandbagging, which (as discussed below) may be the primary reason for requiring preservation in criminal cases (particularly for jury-instruction issues). Because sandbagging is hard to detect, unpreserved issues should be addressed with a rule that discourages that practice. The proposed rule does this because it insures that, if relief is granted on an unpreserved error that counsel intentionally caused or allowed, counsel will be held responsible for the error's occurrence.
The Traditional Appellate Paradigm for Unpreserved Issues
As noted above, the preservation rule serves three basic purposes: promoting judicial economy; keeping trial judges in their proper neutral role; and preventing sandbagging. In criminal appeals, these purposes are not of equal weight in all contexts.
Judicial economy is not promoted if, on direct appeal, the appellate court affirms on an issue only because the issue was not preserved, but then later grants postconviction relief when the same issue reemerges as an IAOC claim, based on counsel's failure to preserve the issue. As to the rule's purpose in preserving judicial neutrality, a trial judge's role is not always one of pure passivity. Trial judges are not mere "fight promoter[s] who supply an arena [for] parties [to] fight it out"; (10) they are also "oblig[ed] to see that justice is done," to see that the "facts [are] properly developed [and] presented to the jury." (11) This includes the duty to "correctly charge the jury." (12) To the extent that the preservation rule is designed to give trial judges a chance to correct error, there is less need to strictly enforce the rule with regard to decisions that judges must make, even if no one asks or objects. The giving of accurate instructions is such a duty.
The preservation rule's anti-sandbagging purpose seems to apply equally in all contexts, which makes this the most compelling reason to require preservation in criminal cases. This is especially true with instruction issues, which seem to present the most potentially fruitful opportunity for sandbagging.
As to the traditional exception to the preservation rule, an error is considered to be fundamental if it "goes to the foundation of the case" (13) or "so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial." (14) Correcting fundamental error is "an unrenunciable judicial duty [because] some errors are of such a magnitude that failure to correct them would undermine the integrity of our system of justice." (15) In sum, the preservation rule has both some flexibility and an exception that are as important as the rule itself.
The third pillar of the traditional paradigm is the invited-error rule, which bars a party from "complain[ing on appeal] about an error [that the party] invited the trial court to make." (16) Many Florida cases say this rule is meant to prevent sandbagging. (17) However, as discussed below, courts often use this rule to bar review of unpreserved issues even if the court believes trial counsel wasn't sandbagging.
Applying the invited-error rule in criminal appeals is problematic. To see why, start with a phrase seen in many Florida invited-error criminal cases: "[F]undamental error may be waived where defense counsel requests the erroneous instruction." (18) But fundamental error is harmful "[b]y its very nature"; if an error is not harmful, "it would not meet [the] requirement for being fundamental." (19) If fundamental error is harmful by its nature, how can it be waived? Put another way, if an error was waived, how can that error be said to be--or have ever been, before being waived--fundamental? By definition, the invitation comes before the "error" occurs; but the invitation authorizes the commission of the "error"; so in what sense did "error" ever really occur? Thus, "there is no error at all when a right has been...