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Make Your Record: Unpreserved Trial Error

 

As lawyers, we know our clients’ cases inside and out.  We know the facts, we know what each witness said (or could have said but did not), we know the legal theories, and we know the defenses.  Then our client’s case gets taken up on appeal and we confuse the hell out of the appellate court because, in our fixation on winning below, we lawyers tend to forget the cardinal rule of appellate law:  MAKE YOUR RECORD.

The Record Should Include All Relevant and Important Argument, Evidence and Testimony

Appellate courts are not “evidentiary” courts.  Appellate judges do not hear testimony from witnesses or receive evidence.  An appellate court, instead, reviews the “record” of what happened before the lower court.  The “record” is what it sounds like:  A written compilation of everything that went on below.  Motions, answers, transcripts of hearings, transcripts of witness testimony, and photos of physical evidence (i.e., weapons, drugs, etc.) are all things that comprise a “record on appeal.” If it is not in the record, the appellate court generally cannot consider it.

As a lawyer, if any argument, evidence or testimony is important to your case, you have a duty to make sure that argument, evidence or testimony gets put into the record, either in writing or in a transcript.  Otherwise, you will most likely lose your right to argue that issue on appeal.  Appellate courts generally will not consider objections or arguments that are raised for the first time on appeal.

Trial Objections Need to Put Into the Record

Trial objections are one of the most common areas in which lawyers forget to place an issue in the record.  In City of Las Vegas v. Kamide, 133 Nev. Adv. Op. 82 (Nov. 16, 2017), Justice Stiglich issued a clear admonition to trial lawyers in this state.  If we do not make our record, the Nevada Supreme Court may not be able to consider our arguments on appeal no matter how valid they may be.

In Kamide, the defendant invoked the rule of “witness exclusion” in his criminal trial in justice court.  Under the “witness exclusion” rule, witnesses are prevented from hearing each other’s testimony.  NRS 50.155(1).  They can also be prohibited from discussing their testimony with each other.  The purpose of the rule is to provide a fair trial by preventing one witness’s testimony from influencing the testimony of a subsequent witness.  The “witness exclusion rule” is, basically, the “go out sit in the hallway and do not talk to each other about what you just said” rule.

In Kamide, the three witnesses who were excluded were seen chatting in the hallway.  When one of the witnesses took the stand to testify, Kamide’s lawyer asked him what he had been talking about with the other two witnesses.  He replied that they were reading Twitter, and were not “talking about anything.”  Kamide’s lawyer never objected on the record that she believed the witness exclusion rule was violated.  Kamide was convicted.

Under the “Plain Error” Rule, an Appellate Court Will Sometimes Consider An Objection That Was Not Raised Below. 

Kamide appealed his conviction to district court and argued, for the first time, that the trial was unfair because the witnesses violated the rule of witness exclusion.  Although he improperly raised this argument for the first time on appeal, the district court agreed to consider the issue under the “plain error rule.”

In Nevada, an appellate court will consider an issue raised for the time on appeal if (1) an “error” (i.e., legal mistake) occurred, (2) the error is clearly and plainly shown in the record, and (3) the error was bad enough to substantially affected the defendant and his or her rights.   The district court found that there was an error (the witnesses talked in violation of the witness exclusion rule), and the error was plain.

The Nevada Supreme Court disagreed.  The witness exclusion rule would only have been violated if the record reflected that the witnesses spoke about their testimony.  All that the record reflected was that the witnesses spoke about Twitter.  Admitting that they giggled over tweets is not an admission that they were violating the witness exclusion rule.  Therefore, the error was not “plain” from the record, and the Nevada Supreme Court declined to consider the issue on appeal.

Had the lawyer objected on the record, the plain error rule would not have applied.  The analysis would have been completely different, and the plain error rule would not have to be considered.  The moral of this story is:  MAKE YOUR RECORD.