Practice Note

I’m not going to disagree with Mr. Greenfield here.  Not as far as it goes, anyway.  But there’s an important problem he’s missing.*  It’s subtle, but all too real.  I imagine both he and Gideon know about it, but for whatever reason they’re forgetting it.

Sure, you can raise every possible objection at trial and make the record that needs to be made to preserve appellate review.  What does that look like?  The jury’s there, you raise the objection, the judge overrules you.  You tell the judge that you need to make a record.  The jury is excused.  You make the record.  The issue is preserved.

But something else has also happened.  You have, in a very visible and high profile way, put distance between yourself and the jury.  You have created the occasion whereby a part of the proceeding is deliberately hidden from them, and they know it.  They’ll blame you.  Do it more than once or twice during a trial and there’s a good chance you’ve lost them.  And there’s a big risk that you’ll lose them even if it’s only once or twice.

So the truth is you can only make the perfect appellate record for a criminal defendant by jeopardizing your chances of winning with the jury.  And since, bad as they are, the chances of winning with a jury are far, far better than anything you might get on an appeal it’s usually a bad decision to make the objection and make the record.  Usually.

That might be frustrating for an appellate attorney that gets involved later, or for other second-guessers, but it’s the way it is. 

Now in a way I can understand the ire at the judge’s opinion by both Gideon and Greenfield, too.  But they’re also missing something else.  At least this judge said it in an opinion.  The real problem with intermediate appellate courts is that usually they just mindlessly affirm and don’t say anything of substance at all.  So it might be a little counter-productive to jump all over some judge that at least has the cajones to offer a reason, in writing, for affirming.  Don’t get me wrong, I disagree with the judge, too:  judges should be aware of the Morton’s fork facing a criminal defense lawyer at trial and routinely reach issues raised by defendants that are not “preserved”, but that is such a radical reworking of judicial culture that I doubt it could ever happen before the system reaches the implosion point it is fast approaching.

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*  Of course there’s the other problem that usually the trial judge is your biggest adversary and it’s also a problem if you appear to the jury to be fighting with him all the time.  But we beat that dead horse around here a lot, so it’s less interesting than the point we’re really addressing in this post.

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