The margin for error in a criminal trial is often razor slim. Putting aside the usual uphill battle concerning the facts and discouraging public sentiment towards the accused, trial attorneys must have the wherewithal to make all the proper objections necessary to “preserve the record.” The “preserving the record” skill is paramount to being an exceptional criminal defense attorney. It is this single skill that defines the cream of the crop in terms of criminal defense attorneys. Weaker attorneys nearly always succumb to “preservation errors.”
Retrospectively, “preserving errors” for appeal may be all a defendant, now appellant, must cling to in terms of hope for a future. A future out of custody and back with his family. Sadly, if the trial error is not properly preserved for appeal the incarcerated defendant bears the brunt of the forced error. Since there is no DeLorean that goes 88 m.p.h. there is no way to go back and fix the error.
The problem is a good number of trial attorneys are terrible at preserving the error for appeal. Appellate opinions are often kind in terms of pointing out that the error was not properly preserved and, therefore, cannot be reviewed, but what the court is actually saying is that the trial attorney made a serious mistake (and the appellant got screwed because the attorney made a mistake).
Keep in mind, it not acceptable for any professional to make technical mistakes that effect the outcome. Is it acceptable for a plumber you hire to bust pipes under your sink, soak your kitchen in a foot of water, and say, “oh well, I’m sorry” as you are standing knee deep in the water? Is it acceptable for the mechanic working on your brakes to your car to forget to put them back together correctly because he got distracted? Neither question escapes its own statement and, of course, neither is acceptable.
Error preservation is as important as cross-examination for a defense attorney. Error preservation must always be a consideration in preparing and trying a criminal case. A good number of criminal cases are lost at trial but have issues that if the issues were properly preserved might have provided some relief to the appellant.
Preserving errors point cannot be stressed enough because sometimes the matter cannot be corrected on appeal if the objection in not properly lodged. Remember, the defendant has already lost at trial and the appeal was the only lifeline. If the appellate error was not properly preserved, then the defendant might have no remedy other than to rot because of the attorney’s error. This is not acceptable. Period. And the appeal is going nowhere fast. (An attorney never wants to have to apologize to the client, “Sorry, Charlie your appeal was denied because I failed to properly object to the error. I missed the error. It is okay though because you’ll get out of here after 85% of your sentence has been served if you work even though you should not have been convicted.”)
The Fourth District explained:
To properly preserve an issue for appellate review requires three components, “[f]irst, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982)).
State v. Calvert, 15 So.3d 946, 948 (Fla. 4th DCA 2009) (Emphasis added).
Many attorneys do not get it and some never will. Most attorneys make an objection but fail to state the reason clearly or the wrong reason. Some do not even make the objection (missing even the obvious ones). Failure to state the proper reason negates the objection on appeal and, therefore, precludes the appellate court from reviewing most errors (unless fundamental). The attorney must know what they are doing in this regard. It is not okay to not be exceptional at this skill. It is a matter of paying attention to detail and the little things.
In this regard, the attorney must stand up and decisively say, “objection” to the court. The court will recognize the objection and most likely ask for a reason. The attorney then must clearly state the reason or reasons for the objection (unless the objection is obvious)[i] and then the attorney must get a clear ruling (unless getting such a ruling would be futile). Things like “your objection is noted” or “so noted” or “move along” are not clear rulings (such as “sustained” or “overruled.”)
Making objections can be uncomfortable and awkward. Sometimes standing up to the prosecutor or the judge may downright suck in front of a jury. Calling witnesses or the prosecutor out is not all that it is cracked up to be. In fact, it might be scary, but it is the job of the criminal defense attorney to do it.
The defense attorney does not have the luxury of shying away from the duties and obligations of the representation any more than a surgeon does operating on a loved one. Would be okay for a surgeon to get all flummoxed in routine surgery on your loved one and simply call it day without properly completing the surgery? Of course not.
The same is true for the defense attorney. Do your job. Make the proper objections. Preserve the record for appeal. It may be the difference down the road for the defendant to get out and see his family or have a burger.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
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No. 21-001
[i] But why risk this error? Why risk failing to preserve the error? Get on your feet and in an appropriately loud voice say, “Objection, hearsay!” Or “Objection, improper impeachment!” Or whatever the objection is, but make it known to the court. The court cannot fix the error if it does not know and the attorney cannot preserve the error without the contemporaneous objection. If the court needs further information, the attorney should ask to approach and clearly state the reason for the objection. Sadly, many attorneys do not even recognize that they missed an objection. It is better to raise a tardy objection a few minutes late, then to not raise the objection at all. There is no such valid trial strategy by an attorney as “I let those improper comments or testimony go because I did not want to object.”