A defendant's claim of error in a trial court can only be reviewed by an appellate court if the defendant properly presented or preserved the error in the trial court. The appellate court cannot review the error if the error was not properly presented to the trial court either before, during, or immediately after a trial.
In reviewing a trial court's errors, an appellate court looks at a trial court's record of the proceedings. Attorneys for both a defendant and the prosecution have a duty to ensure that the trial court's proceedings are properly recorded and transcribed by a court reporter. If any proceeding is not being recorded, the attorneys should immediately object and should attempt to establish an adequate record in order to preserve the error.
In order to preserve an error for appellate review, a defendant must make a timely objection to the error during his or her trial. If the defendant fails to make a timely objection, the error will be deemed to have been waived. In the defendant is objecting to evidence that will be admitted, the defendant should object prior to the admission of the evidence. If the evidence has already been admitted, the defendant should object and should file a motion to strike the evidence. In addition, the defendant's objection must be specific and should state the defendant's grounds for the objection.
A trial court's granting of a motion in limine does not preserve an error for purposes of an appeal. A motion in limine is a motion that seeks to exclude prejudicial evidence either before or during a trial. In order to preserve error with regard to evidence that has been the subject of a motion in limine, a defendant must object to the evidence when it is introduced at the trial.
A defendant's claim of error in an appeal must be consistent with the defendant's objection during his or her trial. If the claim of error is not consistent, an appellate court may refuse to address the merits of the defendant's claim.
A defendant must object to inadmissible evidence every time it is offered during his or her trial. Any error regarding the admission of such evidence will be cured if the same evidence is subsequently admitted without objection. In order to avoid such a situation, the defendant may choose to obtain a running objection to the evidence. In other words, each time the evidence is introduced, the defendant is deemed to object to the evidence. However, a running objection must be specific and cannot be too broad. Otherwise, it may not be effective in order to preserve error with regard to the evidence.
In addition to making a timely and a specific objection during a trial, a defendant must obtain an adverse ruling from a trial court on the objection. The trial court must respond to the objection or to the defendant's motion. If the trial court fails to do so, the defendant must insist on a response or a ruling. If the trial court refuses to respond or to make the ruling, the defendant must file an objection.
If a defendant files an objection at trial and a trial court sustains the defendant's objection, any error with regard to the admission of evidence that is the subject of the objection is not preserved. The defendant must request that the jury be instructed to disregard the evidence and he or she must request a mistrial.
If evidence is admitted over a defendant's objection, the nature of the evidence will be part of a trial court's record, which record can be reviewed by an appellate court. However, if evidence is excluded despite the defendant's objection, the error cannot be evaluated by the appellate court because the excluded evidence is not part of the record. In order to preserve the error, the defendant should make an offer of proof with regard to the evidence or should file a bill of exceptions. A bill of exceptions may also be used to preserve error with regard to proceedings that have not been recorded by a court reporter.
In addition to general requirements for preservation of error, there are some specific requirements for certain types of errors. For example, a defendant who claims an error in an indictment or an information must raise the error prior to trial or the error is deemed to have been waived. Such an error is usually raised by filing a motion to quash the indictment or the information prior to trial. Jury selection is another example. In order to preserve error with regard to a trial court's denial of the defendant's challenge of a juror for cause, the defendant must make a specific challenge for cause, must use a peremptory strike for the juror, must exhaust his or her peremptory strikes, must identify the juror, and must claim that he or she would have used a peremptory strike if it had been available.
Preserving an error for purposes of an appeal is extremely important. If a defendant fails to properly preserve the error, the defendant's appeal may not be successful. Although an appellate court has jurisdiction to review plain or fundamental errors that are not raised during the defendant's trial, it is to the defendant's advantage to preserve the error at the time of his or her trial rather to risk losing his or her appeal.