Preserving Appellate Issues at Trial – First Steps - Articles

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Posted by: David Raybin on Mar 15, 2018
“A pint of sweat today saves a gallon of blood tomorrow." – General George Patton
Always consider the rules regarding the admissibility of evidence before any evidence is introduced so you can properly object to the evidence at trial and raise the issue on appeal if necessary. Conversely, anticipate what objections will be raised to your proof and come up with justifications for your critical proof. Begin the trial thinking about special mid-trial instructions to the jury as it relates to the admissibility of evidence. 
Most jury instructions lessen or modify the impact of a particular piece of evidence such as the “standard” instruction on expert testimony.  Think about instructions that must be given during the trial. For example, in criminal cases, the judge must give a contemporaneous instruction to the jury when prior inconsistent statements are used to impeach a witness. See, State v. Reece, 637 S.W.2d 858 (Tenn. 1982). Unless you ask for these mid-trial instructions during a trial you cannot raise them on appeal.  
There are six criteria that must usually be met for evidence to be admissible:
  • First: Most physical and some testimonial evidence must be disclosed to the adverse party prior to trial pursuant to the rules of discovery in both criminal and civil cases.  
  • Second: The evidence must be relevant to prove or disprove a fact and issue. As we know, relevance is the threshold test which must be passed whenever a question is raised regarding the admissibility of evidence.
  • Third: The evidence must be sufficiently reliable to promote accuracy in the fact-finding process.  Reliability is often an issue in scientific tests or opinions. Where evidence is less than totally reliable the courts may require additional proof to support a conviction such as requiring the corroboration of an accomplice in a case.  
  • Fourth: The probative value of the evidence must not be substantially exceeded by its potential for prejudice. For example, a horrible photograph of a traffic wreck may prove something but it may be tremendously prejudicial.
  • Fifth: The disclosure of the evidence at trial must outweigh any competing policy interest in nondisclosure. This is usually an issue with regard to privileges.  
  • Sixth: Reception of the evidence must not undermine the integrity of the judicial process. For example, the exclusionary rule in criminal cases or the prohibition of wiretapping evidence in civil cases.  
The most common cause of the “lost appeal” is because the lawyer “waived” something in the trial court. If you count up all “the lost appeals” in Tennessee, you would find that every reason combined does not approach the number of appeals that have failed because of some waiver. The failure to perfect an appeal or the failure to win an issue is invariably a function of failing to comply with the procedural rules regarding raising the issue in the trial court in the first place. 
Go through the checklist on all critical evidence, which is the first step in record preservation. Then formulate your objections or anticipate the opponent’s objections. You will then be prepared. 

David Raybin is a Middle Tennessee Delegate of the executive council for the Tennessee Bar Association's Appellate Practice Section. Raybin has been named the Best Criminal Lawyer in Nashville in criminal general practice and white collar defense by Best Lawyers in America and listed among the Best Criminal Lawyers in Tennessee by the Tennessee Business magazine. Raybin holds degrees from Virginia Commonwealth University and the University of Tennessee College of Law.