When a criminal defendant decides to take a case to trial, his or her defense attorney knows it is possible that substantive or procedural issues may come up along the way that are not properly resolved and that an appeal may eventually be necessary. Whether or not the defense attorney who handles the trial goes on to handle a potential appeal of the case, it is important that at trial care is taken to preserve issues for appeal. This is because issues which are not preserved in the record usually cannot be brought up on appeal.
According to the American Bar Association, there are a variety of things a trial attorney can and should do in an effort to preserve issues for appeal. One of these is to take care in outlining the legal issues at the play in the case at the beginning, paying particular attention to the possibility of any constitutional claims.
Another task is to ensure that an adequate record is built at the trial level so that an appellate court down the road has enough to go on when considering the issues brought before it. Part of what is involved in this task is to ensure pleadings are made with potential appeal in mind, which means one must be comprehensive, and yet work to highlight the specific issues at play.
Other strategies include: making good objections that result in rulings on the record; ensuring that the court clerk files all pleadings, motions, orders, the verdict and the judgment; and making sure errors in the record are corrected. These, of course, are only some general suggestions. Experienced trial attorneys familiar with the appeals process know well how to approach trial with an eye toward potential appeal.
Preserving issues for appeal is not a concept that the ordinary criminal defendant knows much, or really anything, about. It is one of the reasons why is critical to work with an experienced attorney, since failure to properly preserve issues on the record can preclude those issues from being appealed.
Source: American Bar Association, “Ten Practical Tips for Making Your Case Appealable,” Alex Wilson Albright and Susan Vance, Accessed Dec. 4, 2014.