Preservation of the issue

Thanks to here is an interesting case about preserving the issue for appeal.  In this case there was a pretrial motion and the judge denied the defense its requested relief.

The government claimed the plain error standard would apply, as at trial the defendant failed to preserve the issue for appeal.

The Tenth Circuit disagreed that plain error applied to the issue. The circuit noted that while the matter did not develop at trial, it had been the subject of a motion in limine by the defendant. The trial court rejected the motion in limine. The circuit noted a standard that applied in the circuit to whether a party’s actions were sufficient to preserve the issue for appeal. In doing so, the court noted FRE 103(a), which relieves a party from having to renew an object at trial if the court had previously made "a definitive ruling on the objection." FRE 103(a).

The circuit noted that an issue was sufficiently preserved before trial when the following could be shown:

  1. The issue was "fairly presented to the district court",
  2. The issue is one that can be finally decided in a pretrial hearing, and
  3. The issue is ruled upon without equivocation by the trial judge” pretrial

Goodman, __ F.3d at __ (citations omitted)

The question is do you or must you object during trial itself once a judge rules on a pretrial motion.  Personally I’m inclined recommend asking the military judge to reconsider her ruling at the point in trial when the issue is “ripe.”  But:

Given this record, the defendant did not need to show a contemporaneous objection at trial in order the preserve the issue. The circuit concluded that the defendant had:

"fully proffered the essence of the proposed lay testimony prior to trial. The district court ruled unequivocally in a written order, and Goodman’s counsel obviously was restricted in what testimony he could elicit from these witnesses at trial. We are therefore satisfied Goodman properly preserved his objections for appeal," even if counsel did not object specifically at trial to the limitation of the witnesses. The defendant’s plan, its rejection by the judge, and the defendant’s re-application for using his plan, was sufficient to preserve a challenge to the trial results because the defendant’s motion had been denied earlier.

Goodman, __ F.3d at __.

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