Georgia Criminal Appellate Law Blog Offering Insight and Commentary on Appellate Law and Criminal Trial Practice

Category Archives: Preservation of Error

Subscribe to Preservation of Error RSS Feed

Trial Objections are no Substitute for an Appellate Strategy

Posted in Preservation of Error

The Lawyerist wrote an evocative post last week about when and how to object at trial. In it, Andy Mergendahl notes that “Objecting at times other than when absolutely necessary to keep crucial inadmissible evidence out will really hurt you.” He advises, instead, to handle as many objections as possible as motions in limine. What… Continue Reading

Amanda Knox, the Appeals Process, and Moneyball

Posted in News, Opinions and Analysis, Preservation of Error, Uncategorized

Today, my recent post on Amanda Knox was quoted by Ronald V. Miller in his Maryland Injury Lawyer Blog. He picks up on my point about the Knox case and other high-profile cases with an unexpected result. For clients and potential clients, such cases reinforce the often mistaken idea that, if you keep on slugging until… Continue Reading

What to Do When Litigating in “Foreign Lands”

Posted in Motion for New Trial, Oral Argument, Preservation of Error, Record on Appeal

Last week, I had a post-conviction motion in a county where I never practice. The motion is under advisement, so I won’t go into the particulars about it or what happened at the argument. I write today about the things I did before the hearing started and I plan to do those things even when… Continue Reading

A Guide to Depositions for Georgia Criminal Appeals Lawyers

Posted in Motion for New Trial, Preservation of Error, Supreme Court of Georgia

A few months ago, the unthinkable happened on a habeas corpus case I am doing in South Georgia. The judge “suggested” that I handle some witnesses on a particular issue by deposition. There were all kinds of good reasons for it. The witnesses were spead out all over the State. I will probably get to… Continue Reading

Stop Treating Motions for New Trial Like a Rubber Stamp (Even if They Are)

Posted in Motion for New Trial, Preservation of Error, Record on Appeal, Writing

Judges seldom grant motions for new trial. I have various theories about why. And they range from being sympathetic to the judge to utter cynicism. Sometimes, there just wasn’t any harmful error. Sometimes, the judge couldn’t fathom that he made a mistake. Sometimes, it’s just too dang expensive to try the thing twice. And some… Continue Reading

Say That Again: Getting the Most Out of Hearsay Objections

Posted in Preservation of Error

If there’s one evidentiary issue that you will encounter in your next jury trial, it’s hearsay. It comes up all the time, and some lawyers and judges don’t have a firm grasp on it or its exceptions. Beyond that, trial lawyers often stop short of fully developing their record because they fail to make an… Continue Reading

What Does it Mean to Preserve the Record for Appeal in Georgia

Posted in Preservation of Error

I’m off tomorrow morning to speak to the Henry County, Georgia, Bar Association. The topic is a good one after wrapping up a week of trial. That topic is preserving the record for appeal. It seems like every seminar has the preserving the record speaker, the ethics speaker, and the professionalism speaker. You can tell… Continue Reading

More Appellate Lessons Learned from a Georgia Trial

Posted in Preservation of Error

On the first day of this week’s foray into criminal trial practice, I wrote about what a felony trial has been teaching me about appellate practice. Then a rejoinder form a commenter made me think that blogging during trial was not the greatest idea. Yesterday, the trial resulted in a mistrial. An hour into deliberations,… Continue Reading

Some Lessons from a Trial Appearance

Posted in Preservation of Error

This week, I am trying a criminal case. My practice is predominantly appellate, but I have brief forays into the work of criminal trial practice. And today began such a case. While it’s not appropriate to go deeply into the particulars, I think that jury selection today was particularly instructive. I don’t know whether this… Continue Reading

The “Great Trial Lawyers” Get Creative When Making a Record

Posted in Preservation of Error, Writing

I really loved Maxwell Kennerly’s blog post yesterday, Titled “Young Lawyers: Be Careful Emulating Great Trial Lawyers.” I loved the ethos though I am not wild about the application. Mr. Kennerly’s post is a reaction to another blog post offering advice for trial lawyers. Essentially, Mr. Kennerly wonders whether it is a good idea for… Continue Reading

11th Circuit Reverses Conviction on Failure to Charge on Reliance on Advice

Posted in 11th Circuit Court of Appeals, Opinions and Analysis, Preservation of Error

Professor Ellen S. Podgor reports in her White Collar Criminal Prof Blog that the 11th Circuit Court of Appeals has reversed several convictions in Kottwitz.pdf because of a trial court’s failure to charge the jury on the defendants’s good faith reliance upon an accountant’s advice. The Court has also held that, regardless of the strength… Continue Reading

Managing Motions for Mistrial in Georgia to Preserve Them for Appeal

Posted in Preservation of Error, Record on Appeal

So, I just got finished reading a transcript on a case I am appealing. Halfway through the trial, a witness for the State said something highly improper. Counsel moved for a mistrial. These moments in the reading of a transcript are a little like watching a really close college football game, because I am pulling… Continue Reading

Sheepish or Sarcastic: It all Looks the Same on the Record

Posted in Preservation of Error

Picking up on yesterday’s theme, I have been thinking more about why lawyers don’t make good records on appeal. So, I’m going to take a stab at it, and this stab is applicable to criminal trials only. As far as I know, civil practitioners have their own reasons for not preserving a good record for… Continue Reading

How to Make the Transcript More Fun to Read

Posted in Preservation of Error

The average trial transcript handled by the average criminal trial attorney is a sad sight to behold. All of my client’s hopes turn on what is said in this document and often, I am sad to say, on what is not said in this document. There is one word that makes the difference between dead… Continue Reading

What to Do if You’re Not the First Lawyer on the Case

Posted in Motion for New Trial, Preservation of Error

Another lawyer contacted me about a case she is working on. She wasn’t the trial counsel. She wasn’t the lawyer on the motion for new trial. In fact, one lawyer handled the trial. A second lawyer handled the motion for new trial. She was hired after the motion for new trial was denied but just… Continue Reading

Georgia Judicial News: Judges Gone Wild Edition

Posted in News, Preservation of Error

I don’t want to bury the lead. So, here it is. There must be enough error out there in Georgia to win a slew of appeals. Georgia judges must be messing up on hearsay, the Fourth Amendment, and jury charges. All those things are hard. Many of them, so far this year, are messing up… Continue Reading

Preserve the Record Alert: Felon in Possession Statutes are Low-Hanging Fruit

Posted in News, Opinions and Analysis, Preservation of Error

Douglas A. Berman, Professor at Moritz College of Law at Ohio State University reports at his blog, Sentencing Law and Policy, that the Seventh Circuit has suggested that a non-violent felon might prevail on a Second Amendment challenge if he brings an as-applied challenge to the Federal Felon in Possession statute (18 U.S.C. Section 922(g)(1)))…. Continue Reading

Timing Problems for Getting Retained on Georgia Appeals

Posted in Preservation of Error, Writing

One of the problems with appellate law is that clients either show up too late or early. Some clients show up too late and too early. Too late is after the trial attorney has screwed things up, after a deadline has passed, or after the client took things into his own hands and dabbled in… Continue Reading