May 12th, 2015

“You’re protected on the record” Isn’t Enough Protection

Issue preservation, an unrelenting thorn in the side of many attorneys.  When do I object?  How specifically do I object?  Do I proffer evidence?  A trial attorney often grapples with whether to ask the court to clarify a ruling or whether to continue objecting to evidence after he or she believes the court ruled on its admissibility.  The Court of Appeals recently issued an opinion related to these two preservation issues.  The takeaway is err on the side of caution no matter what the trial court says.

In a homicide by child abuse case, the defendant made a pre-trial motion to exclude evidence of the victim’s other injuries because, he argued, there was no nexus between those injuries and the victim’s death, and no evidence the defendant inflicted the injuries. State v. Rivers, 769 S.E.2d 263, 264 (Ct. App. 2015).  The trial court denied the motion, explaining, “‘These child cases are getting a little different treatment than what we normally are use[d] to involving adult cases and other type criminal cases.’” Id. at 265.  Then, at the end of the hearing on the motion in limine, the trial court told the defendant “You’re protected on the record on that.” Id.  At trial, the defendant objected to testimony regarding the other injuries, arguing only that the “testimony was speculative and cumulative.” Id. at 265.

The issue on appeal from the defendant’s conviction was whether the trial court erred in admitting evidence of the other injuries because no evidence connected the defendant to the injuries.  The Court of Appeals found the issue unpreserved. Id. at 265.

As one basis for finding the issue unpreserved, the Court found “the trial court never ruled on the current issue” because the ruling that “child cases are getting a little different treatment” did not address the argument that no evidence connected the other injuries to the defendant. Id.  Should the trial court’s denial of the motion—which included the argument raised on appeal—be an implicit, if not an explicit, ruling on all arguments made?  It would seem, based on the Court of Appeals’ logic, it is not enough to make an argument and have the trial court deny the motion—an attorney should ask the trial court to make a specific ruling on each argument raised.

As another basis for finding the issue unpreserved, the Court of Appeals held the trial court’s statement “You’re protected on the record” was not a final ruling that exempted the defendant from the requirement to object to the evidence when it is presented at trial. Id. at 266.  Should an attorney be allowed to rely on the trial court’s statement regarding issue preservation?  No.  There is a fine line between harassing the trial court by objecting too much and preserving issues for appeal.  Before relying on the trial court’s assurance that arguments regarding an in limine ruling are preserved, ask the court if the ruling is “final” and, for good measure, object when the evidence is introduced at trial.