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NY Court of Appeals On the Importance of Preserving the Basis for Your Legal Argument on the Record

Gavel2In a recent decision, the New York Court of Appeals made it quite clear how important it is to carefully make a record of all of the arguments that you believe support the admission of a particular piece of evidence.

At issue in People v. Person, 2007 NY Slip Op 03959, was whether the trial court properly precluded from admission into evidence the defendant's accomplices' videotaped statements made to police, which exculpated him and contradicted their testimony at the defendant's trial. 

During cross examination, defense counsel impeached the credibility of the accomplices using the transcripts of the videotaped statements and each witness acknowledged the existence of the prior inconsistent statement.  Defense counsel argued that he should be able to use the videotapes, rather than the transcripts, to establish the content of the tapes and impeach the witnesses at trial.

On appeal, defendant alleged that the tapes should have been admitted since viewing the tapes would have allowed the jury to view the demeanor and hear the voices of the accomplices thus allowing then to better gauge the credibility of the accomplices.

The Court rejected this argument, stating as follows:

At trial, however, the crux of defendant's argument was that he should be able to use the videotapes, rather than the transcripts, to prove the content of the prior inconsistent statements. Defendant at that time failed to explain how the videotapes would have conveyed information beyond that provided by the verbatim transcripts of the statements. As a result, he did not preserve his current contention that Supreme Court had discretion to admit the videotapes because they were relevant to the jury's ability to reliably evaluate the credibility of the witnesses. We therefore have no occasion to consider whether the preclusion of this evidence constituted an abuse of discretion as a matter of law.

This case is yet another example of why it never hurts to set forth clearly and concisely on the record each and every reason that you can think of that might support your argument.  Wouldn't you rather have an appellate decision such as this one occur in SEC ("Someone Else's Case" a la Professor Siegal)?  I sure would.


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Eric @ New York Personal Injury Law Blog

Interstingly, the Court of Appeals decision does not have any citations whatsoever. I'm not sure I've ever seen that before.


Scott Greenfield

Preservation has become the excuse du jour of appellate courts in general, though this one takes it a step beyond anything I've ever seen before.

The point of preservation is to give the trial judge the opportunity to make the decision in the first instance, rather than be reversed on a basis never proffered at trial. The problem with this rationale is that it elevates the desire not to reverse the trial judge over whether a person has been wrongfully convicted. Of course, there is always the secondary tacit rationale that it allows appellate courts to punt cases when they can and avoid having to address hard issues or hard cases.

For those of us who actually try criminal cases, these preservation rules often present grossly unrealistic obstacles. First, we try to win, not to appeal. Second, trial judges rarely give us the time to get the first point of our argument out, no less go into detail. This is not always apparent from the record, since the trial judge will seemlessly respond when we have more to say. Third, trial judges get very annoyed when lawyers make talking objections, particularly when they have already informed us that they are not blithering idiots and don't need us to explain the most simplistic points of the law. And yet, that's what appellate courts are now demanding.

This puts trial counsel into an untenable position. But the only course of action left is to state (sometimes a dozen times) on the record that we do this only because the Court of Appeals demands it of us, and not to further annoy the court. Small comfort, but given the odds that an appeal will be forthcoming, a course that must be taken.



I hadn't notice that, Eric. Interesting, indeed.

And, I totally agree, Scott re: the practical application of this rule. Expounding for 20 minutes re: the basis for your objection makes youlook like an ass in front ofthe jury. And, repeatedly advising the judge that you have to "make a record for appeal" does little to keep him/her on your good side.

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