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Preserving the Record for Virginia Appeals

A lot of appeals in Virginia are done before they are even initiated because the burden is on the trial court attorney to preserve the record and enable a Virginia appellate attorney to appeal errors of the trial court.

An issue can only be appealed if the attorney at trial made a contemporaneous objection to that ruling when it happened and with specificity. It doesn’t have to be absolute specificity of what the law is and why everything is wrong, but they have to make that objection at the time that the erroneous ruling is made. If they do not, then no appeal can be had from that decision.

The burden is on the Virginia trial court attorneys to have their eyes opened for issues that could potentially be contentious at trial and to be aware that sometimes there’s a need to object. Even if that objection won’t necessarily be successful at trial, they will need to object in order to preserve the right to appeal.

How to Preserve a Record for Appeal in Virginia

A Virginia criminal defense attorney has to object at the time that the issue arises and with “reasonable specificity.” What that means is if a mistake is made, the attorney has to realize it on the spot. If, for example there is a witness testifying that Mr. X told her that defendant Y was seen at the scene of a crime, that is inadmissible hearsay. The attorney would want to object to that and say that what Mr. X said is not admissible in the case, and therefore, should be kept out.

But if the attorney only realizes that half an hour later, it is too late to object. The testimony has gotten in and the matter is considered settled. In order for an issue to be preserved on appeal, the attorney has to object at the time the issue arises.

When Issue Needs to be Preserved

The issue needs to be preserved at the time that it arises in Virginia trial court. It needs to be preserved with reasonable specificity at the time that it arises. It is not enough to realize that something’s wrong 10 minutes later. It does not matter if the attorney realizes it while the trial was still going on. That objection has to be noted at the time that the issue arises.

Issues That Require Extra Effort to Preserve

Anytime that a party objects to a statement, or testimony, or ruling that would require a mistrial to be declared, then a Virginia defense attorney would need to move for a mistrial. If there is an objection to testimony from a witness and that objection is sustained, if the other party objects to the objection being sustained, they will still have to prove that the testimony that’s being suppressed would have helped their party, their client.

Sometimes that will require proffering what the testimony would have been out of the presence of the jury. Examples like that are some of the instances that would require the trial attorney to take an extra step to preserve the issue.

Failure to Preserve the Record in Virginia

If the objections were not made or were not timely in Virginia trial court, then the appeal would be barred. If the attorney does not make the extra effort needed to preserve the appeal, then the appeal would be barred because the record wouldn’t be preserved.

Proffers of Evidence That Were Not Made

If testimony is not allowed by the trial court and disallowing the testimony would negatively affect defendant party, the burden is on that party to proffer that evidence out of the presence of the jury in order to show that, if the evidence had been admitted, it would have benefited them. This would need to be done after the objection was made in order to preserve the right to appeal.

It is important to note that in most appeals there is a two-prong burden on the appellant to show not only that a mistake was made by the trial court, but also that the mistake negatively impacted the rights of the appellant. If a mistake was made, but it did not negatively impact the appellant, then an appellate court will often dismiss it as harmless error.

Specific Arguments and Objections

Simply endorsing an order as “seen and objected to” is generally not sufficient to preserve the issue for appeal except in rare circumstances. A party cannot make a blanket objection to any and all testimony without giving a rationale behind that objection.

Simply saying, “I object,” does not preserve an issue for appeal. The trial court has to have the opportunity to know what the root cause of the objection is and to rule based on that. That doesn’t mean that the Court of Appeals is bound in reviewing the issue only to the grounds that were raised at trial.

For example, if a party could have objected to a ruling on a number of grounds and they only object on one of those grounds, that is enough to preserve the issue on appeal. On appeal, that issue can be reviewed on that ground and any other grounds that the court made a mistake.

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