Defense counsel's guide to preserving objections for appeal

1. Trial Defense Counsel’s
Guide
to Preserving Objections
Major Mason Weiss
*based entirely (and shamelessly) on “Making the Appellate Record: A Trial Defense
Attorney’s Guide to Preserving Objections—the Why and How
by then LTC Patricia A. Ham, The Army Lawyer, March 2003

2. Hypothetical
·You draft a great motion to suppress your client’s statement to
CID which, if admitted, will ensure your client gets convicted.
·You have a terrific Article 39a session, and all the evidence
comes out exactly like you wanted.
·The Military Judge rules against you and lets the statement in!
·Your client decides to plead guilty and you get a PTA.
Will the appellate courts consider this motion on appeal?

3. Hypothetical
No
·Unconditional guilty plea=
Accused waived his right for the
appellate courts to consider the
motion to suppress under almost all
circumstances!

4. Making the Appellate Record
A. The Waiver Doctrine
B. Standards of Review
C. Top 10 Things to Make the Appellate Record
D. Preserving Selected Specific Objections

5. The Waiver Doctrine
·Failure to properly preserve an issue at trial waives the issue
for appeal!
·Waiver= appellate court is unlikely to consider the issue
·Waiver=your client has almost no chance of relief on appeal
·Waiver= “intentional relinquishment or abandonment of a
known right.”

6. The Waiver Doctrine
Waiver vs. Forfeiture
·Forfeiture= failure to make a timely assertion of a right.
·What’s the difference?
·Issues you intentionally waive= never merit relief!
·Issues you forfeit= appellate court may grant relief under the
doctrine of plain error under extraordinary circumstances
(even though there was no objection at trial)

7. The Waiver Doctrine
Why Waiver?
·To avoid piecemeal litigation
·Judicial economy
·The rule is designed. . . to prevent defense counsel from
remaining silent, making no objection, and then raising the
issue on appeal for the first time, long after the possibility for
curing the problem has vanished.
·Exception to waiver rule= plain error

8. The Waiver Doctrine
Very few issues are not subject to waiver:
-Jurisdiction
-Failure to state an offense (but you better raise it at trial)
-Incompetence to serve as a member under Article 25 UCMJ
-Adjudicative (vs. accusatory) UCI
3

9. The Waiver Doctrine
Raise or waive issues include:
·credit for violating procedures used to place accused in PTC
·objections to Article 32 Investigations
·objections to either the taking of a deposition, or to questions
or evidence presented at depositions
·failure to lodge objections at the appropriate time
·failure to place matters agreed upon at RCM 802 session on
the record
·challenges to the military judge (although some ≠ waivable)
·untimely request or withdrawal of request for trial by enlisted
panel or MJ alone
3

10. The Waiver Doctrine
Motions you must raise before entering a plea (RCM 905b):
·defective Article 32 Investigation
·defects in the charges or specifications
·defects in preferral, forwarding, investigating, or referral of
charges and specifications
·motions to suppress confessions
·motions to suppress evidence obtained by unlawful search or
seizure
·motions to suppress eye-witness identifications
·motions to sever
·motions for an IMC counsel
3

11. The Waiver Doctrine
Motions you must raise before court-martial is adjourned:
·Continuance
·Speedy Trial
·Release from pretrial confinement
·Statute of Limitations
·Double Jeopardy
·Prosecution is barred by immunity
·Bill of particulars
·Discovery or request for production of witnesses
·See RCM 906 and 907 for others
3

12. The Waiver Doctrine &
MRE 103
·MRE 103 contains comprehensive and sweeping waiver rules
3 critical points to know
1.Even when TDC properly objects and MJ errs by excluding
or admitting evidence, no relief on appeal “unless the ruling
materially prejudices a substantial right of the accused.”
2. TDC must object to the admissibility of the evidence that
defense seeks to exclude.
3. If MJ excludes evidence that TDC seeks to admit, TDC must
comply with MRE 103 mandate to preserve its position.

13. The Waiver Doctrine &
MRE 103
MRE 103
1. Must materially prejudice substantial right
2. When MJ admits evidence TDC wants kept out, TDC must
timely object stating specific grounds of objection (unless
obvious)
3. When MJ excludes evidence, TDC must make offer of
proof.

14. The Waiver Doctrine
MRE 103
To get relief from evidentiary error, accused must:
1. Establish prejudice
2. Correctly preserve the objection
Burden is on TDC—not on trial or appellate courts
·MRE 103 ended the ability of appellate defense counsel to
raise errors that were not raised at trial

15. Standards of Review
·SOR= amount of deference that appellate court gives to a trial
judge’s decision
·Why should I as a TDC care about SOR?
-because appellate courts perform a completely different
analysis of properly preserved objections and issues than for
ones that are not properly preserved!
·It’s always difficult to get relief on appeal even when you
properly preserve things, almost impossible when you’ve
waived for forfeited them

16. Standards of Review
for Properly Preserved Issues
Assuming TDC properly preserved the objection, client gets no
relief on appeal unless:
1. There is error; and
2. The error materially prejudices a substantial right
-This is from Article 59a UCMJ, and MRE 103
So—appellate court has to decide:
1) if error actually exists, and
2) if it does exist, is it harmless error, or is it prejudicial error.
Error + no prejudice = Harmless Error.
Harmless Error = your client gets no relief!

17. Standards of Review
for Properly Preserved Issues
-There are several SORs that appellate court employs to
answer the First Question:
“Is there error?” (and DC properly objected)
1. Abuse of Discretion
2. Clearly Erroneous
3. De Novo

18. Standards of Review
for Properly Preserved Issues
Abuse of Discretion
·applied to nearly all evidentiary rulings
·exceedingly deferential to trial judges
·to reverse for an abuse of discretion= more than a difference
of opinion. The challenged action must = arbitrary, fanciful,
clearly unreasonable, or clearly erroneous

19. Standards of Review
for Properly Preserved Issues
Clearly Erroneous
·used by appellate courts to determine whether MJs findings of
fact are correct/incorrect
·also exceedingly deferential to trial judges
· “At least one court has defined the clearly-erroneous
standard by stating that it must be ‘more than just maybe or
probably wrong; it must . . . Strike us as wrong with the force of
a five-week old, unrefrigerated dead fish.”
*little to no deference given if MJ doesn’t make findings of fact!
*less or no deference if MJ fails to articulate 403 balancing test

20. Standards of Review
for Properly Preserved Issues
De Novo
·least deferential SOR
·appellate court gives no deference to MJ’s ruling
·But even when appellate court is reviewing an issue de novo,
it normally defers to MJs findings of fact unless they = clearly
erroneous

21. Standards of Review
for Properly Preserved Issues
Mixed SORs
·happens b/c issues present mixed questions of law & fact
·i.e. appellate court reviews motion to suppress for:
-abuse of discretion,
-deferring to MJs findings of fact unless they are clearly
erroneous
-but review MJs legal conclusions de novo
·Will not find abuse of discretion unless findings of fact are
clearly erroneous or conclusions of law are incorrect

22. Standards of Review
Harmless Error, Plain Error & Article 59(a)
·(1) DC properly objects + (2) appellate court applies correct
SOR and finds error, then → (3) court analyzes whether error
is prejudicial or harmless.
·If appellate court finds error → burden shifts to gov’t to prove
that the error is harmless.
·Burden depends on type of error: constitutional or non-constitutional

23. Standards of Review
Harmless Error, Plain Error & Article 59(a)
·Non Constitutional error → Gov’t must prove error = harmless
-gov’t must address whether the error itself had substantial
influence on the findings.
-if so, or if one is left in grave doubt → conviction cannot stand
·Constitutional error → Gov’t must prove error = harmless
beyond a reasonable doubt.
-Test= is it clear beyond a reasonable doubt that a rational jury
would have the appellant guilty absent the error?
-If not clear they would have found him guilty anyway →
conviction cannot stand

24. Standards of Review
Harmless Error, Plain Error & Article 59(a)
·Structural errors = errors so basic that harm is self-evident
and no need to test.
-total deprivation of right to counsel at trial
-lack of impartial judge
-unlawful exclusion of members of Δ’s race from grand jury
-right to self-representation at trial
-right to public trial

25. Standards of Review
Harmless Error, Plain Error & Article 59(a)
·Plain Error: applies to issues that DC have not properly
preserved.
·completely different analysis, low chance of success.
·PE = (1) error + plain/clear/or obvious + materially prejudiced
one of Δ’s substantial rights
·PE analysis places burden on appellant to prove all 3 prongs!
(not on the government).
·Even if he does, court may only grant relief if the error
“seriously affects the fairness, integrity, or public perception of
the proceedings.”

26. Standards of Review
Harmless Error, Plain Error & Article 59(a)
· “Material Prejudice to a Substantial Right” in a P/E scenario =
Δ must prove error “was so significant as to influence the
outcome of the trial, that is, error made the trial unfair” or that
error had an “unfairly prejudicial impact on the jury’s
deliberations.”
· CAAF 3-prong test for P/E is tougher than federal practice b/c
it requires “material prejudice” not just “affects substantial
rights.”
·BLUF: P/E is hard to prove, and if it’s there—it means you
screwed up as a TDC b/c you should have objected and didn’t!

27. Top 10 General Observations
on Making the Appellate Record
1.Failure to object (or to object properly) at trial waives the
issue!
·Remember—you represent a client. Do not let the MJ
browbeat you into submission.

28. Top 10 General Observations
on Making the Appellate Record
2. An error without prejudice means no relief on appeal
·Even if you object properly, ≠ relief unless → error + resulting
harm to accused.
·You must articulate how specific rulings prejudice your client
when you object
·i.e. if MJ refuses to allow you to cross-examine victim on
certain issues → argue to MJ why those questions and
answers fit into Δ theory of the case, etc.

29. Top 10 General Observations
on Making the Appellate Record
3. An objection at trial on one basis does not preserve an
objection on a different basis
·Appellate review of an objection “requires a record that the
appellate court can review”
· “It is difficult, if not impossible to second-guess the intent of
the TDC if he or she does make the specific objection known
to the MJ.”
·i.e. if you object on “speculation” and MJ denies it, appellate
defense counsel cannot then argue that it was also hearsay
(BLUF—object on every ground possible!)

30. Top 10 General Observations
on Making the Appellate Record
4. Offering evidence on one basis at trial does not
preserve an offer of the same evidence on a different
basis on appeal
·Appellate review of an objection “requires a record that the
appellate court can review”
· “It is difficult, if not impossible to second-guess the intent of
the TDC if he or she does make the specific objection known
to the MJ.”
·i.e. if you object on “speculation” and MJ denies it, appellate
defense counsel cannot then argue that it was also hearsay
(BLUF—object on every ground possible!)

31. Top 10 General Observations
on Making the Appellate Record
4. Offering evidence on one basis at trial does not
preserve an offer of the same evidence on a different
basis on appeal
What to do to get your evidence in:
·Offer of proof required to clearly and specifically identify the
evidence sought to be admitted and its significance
·MRE 103(a)(2) requires proffers! Suggest to MJ that he hears
disputed evidence before ruling on its admissibility
·OP= what witness will say, why relevant, how it fits D theory
of case, how it counters govt, why it’s admissible

32. Top 10 General Observations
on Making the Appellate Record
5. An unconditional guilty plea waives most motions, even
if counsel fully litigate them before entering the plea
·Only two waives to preserve issues that would be waived by a
guilty plea:
1. Plead not guilty
2. Enter a conditional guilty plea
-requires government consent and MJ approval

33. Top 10 General Observations
on Making the Appellate Record
6. Failure to raise most motions before plea waives them,
absent good cause
·RCM 905(c)
·Motions related to: discovery and production of witnesses;
·Motions based on Fourth and Fifth Amendment and Article 31
UCMJ violations
·Appellate courts review MJ’s determination of good cause for
abuse of discretion

34. Top 10 General Observations
on Making the Appellate Record
7. If the MJ defers ruling or invites further evidence or
reconsideration, he has not ruled, & there is nothing to
appeal
·In other words—if you don’t renew your request, you waive
the issue.

35. Top 10 General Observations
on Making the Appellate Record
8. ****Whether the trial is before a panel or MJ alone
matters, especially for the purposes of P/E analysis! *****
·MJ is presumed to know the law and apply it correctly,
presumed capable to filter out inadmissible evidence.
·P/E before a MJ alone = rare
·Appellate courts presume prejudicial impact of erroneously
admitted evidence on MJ is less than on panel
·You must make proper objections!! If MJ keeps making
erroneous rulings on them may = MJ doesn’t know the law.

36. Top 10 General Observations
on Making the Appellate Record
9. With few exceptions, the ROT cannot be supplemented
on appeal
·Appellate review generally limited to matters presented at trial
·Most common exception is one you don’t want: IAC
·ACCA can remand cases for a Dubay hearing
·Although ACCA has fact finding powers under Article 66 and
can allow the record to be supplemented—will not normally be
on evidentiary issues or issues of guilt or innocence.

37. Top 10 General Observations
on Making the Appellate Record
10. If it’s not in the record, it didn’t happen!
·Record means ROT = only those matters received into
evidence and appellate exhibits.
·ROT ≠ everything between the blue covers ≠
-Ar32 transcript, allied papers, exhibits not received into
evidence, emails, 802 sessions not put on record.
·None of these items are part of the ROT and they cannot be
considered on appeal.

38. Preserving Selected Specific Objections
1. Preserving Objections to or during the Article 32
Investigation
·(1) must object on the record & ask the IO to note the
objection in the report + (2) object again in writing to CA within
5 days of receiving the IO’s report (must do both or = waiver)
·If objection is for failure to produce witness → DC must ask
CA to order a deposition
·Finally, DC must object again to MJ before entering a plea, or
issue is waived.

39. Preserving Selected Specific Objections
2. Preserving Objections to Discovery or Witness Matter
·Make specific requests for discovery tailored to facts of the
case b/c case law distinguishes b/t general and specific
requests for information:
· When DC makes a specific request for info & π fails to
disclose info → evidence considered “material” unless π can
demonstrate failure was harmless BRD.
·With general requests, failure = “material” only if = reasonable
probability that a different verdict would have resulted if
evidence was disclosed.

40. Preserving Selected Specific Objections
2. Preserving Objections to Discovery or Witness Matter
·Make specific requests for discovery tailored to facts of the
case b/c case law distinguishes b/t general and specific
requests for information:
· When DC makes a specific request for info & π fails to
disclose info → evidence considered “material” unless π can
demonstrate failure was harmless BRD.
·With general requests, failure = “material” only if = reasonable
probability that a different verdict would have resulted if
evidence was disclosed.

41. Preserving Selected Specific Objections
2. Preserving Objections to Discovery or Witness Matter
·If motion is to compel a witness, DC should proffer substance
of W’s testimony & explain how that testimony is both legally
and logically relevant.
·DC should first interview the W or describe on the record any
unsuccessful attempts to interview them. ****

42. Preserving Selected Specific Objections
3. Preserving Motions in Limine
· Preserving an MIL requires both a “ruling” + proper
preservation of the issue after the ruling.
·If MJ defers ruling, makes tentative or preliminary ruling
subject to further evidence or invites DC to re-open
consideration of preliminary ruling → MJ has not ruled and
there is nothing to appeal!

43. Preserving Selected Specific Objections
3. Preserving Motions in Limine
·3 part test to determine if MIL is sufficiently preserved for
appellate review absent further objection
1. The matter must be adequately presented to the trial court;
2. Must be the type of issue that can be finally decided in a
pretrial hearing;
3. Lower court’s ruling must be definitive
·Even if MJ makes a ruling, DC must still properly preserve the
issue after the ruling.
·Luce doctrine

44. Preserving Selected Specific Objections
3. Preserving Motions in Limine
·3 part test to determine if MIL is sufficiently preserved for
appellate review absent further objection
1. The matter must be adequately presented to the trial court;
2. Must be the type of issue that can be finally decided in a
pretrial hearing;
3. Lower court’s ruling must be definitive
·Even if MJ makes a ruling, DC must still properly preserve the
issue after the ruling.
·Luce doctrine

45. Preserving Selected Specific Objections
3. Preserving Motions in Limine
·US. v. Luce: DC sought to prohibit π cross-examination of Δ
concerning a prior conviction (TJ denies motion).
·SCT holds that for DC to properly preserve the TJ’s denial of
motion, Δ must testify! And π must cross-examine Δ about
prior conviction!
·Add Ohler v. US: Δ must not only testify, but DC cannot
remove the sting during direct examination!
·Applies also to impeachment!

46. Preserving Selected Specific Objections
4. Preserving Evidentiary Objections During Trial
·

47. Preserving Selected Specific Objections
5. Preserving Issues concerning instructions
·

48. Preserving Selected Specific Objections
6. Preserving Objections to Sentencing Evidence

49. Preserving Selected Specific Objections
7. Preserving Objections to Post Trial Matters