Issue not waived

This will be a recurring post about how to preserve issues in the trial court for an appeal. The most important thing, as always, is to federalize any objection. Cite the Fifth Amendment always. If your instinct anything is unfair, object under due process and let us sort it out later.

Yesterday’s tip is that we must ensure that any improper visual aid such as a powerpoint is in the court file. I’d suggest first requesting in an in limine that any demonstrative exhibits or visual aids be provided to the defense before presented to the jury. Even if denied, this will help argue on appeal that the problem could have been averted. Once presented to the jury, ask that it be added to the court file.

Today’s tip: when doing a motion for new trial try your best to get the judge to say that he/she already considered your arguments at the time you objected during trial. That is important because sometimes the objection during trial might not be especially clear. Raising it in a motion for new trial will not preserve the issue if it is the first time it is raised (besides suff of evidence.) You are truly setting yourself up for IAC if you raise it in the new trial motion but did not raise it at the time because what could be the tactical reason for doing that? It is of course, risky, to try to get the judge to say this because what if the judge says “no, you never gave me that theory before.” Ways to avert this might be to test the waters, at the very least saying “as I said at the time” in the midst of your argument, hoping the judge doesn’t correct you. Or, you could just go balls to the wall and if anyone claims it is a new theory say “no no no no, I did raise this perhaps it was ‘inartful’ but I’m sure everyone here knew what the issue was. This is just another way of saying ____”(then refer back to how you originally framed it.)

At the end of the day, we are all doing our best. It is so very easy to look at a record and say wow why wasn’t there an objection, or why wasn’t the objection under the right theory. That is why I always say to fall back on due process because it is a catch all. Just like you can always fall back on 352. But remember, 352 doesn’t do shit for anyone federally. So 352 has always got to go with DP.

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