How to Preserve Error at Trial in Florida: An Appellate Lawyer’s Practice Tips (PART 1)

Howdy Peeps.

Do you know how many requests I get for folks to “guest write” an article? Tons. And, I’ve never taken anyone up on this, ever. I have lots of criminal defense buddies, but I’ve declined their offers.

That being said, my friend Patrick made two good points to me the other day while having lunch at Beth’s Burger Bar. First, the Peanut Butter Burger will change your life. Yes, it was almost that good.

Second, I should warn my defense attorney friends about all the problems Patrick sees on the appellate level. He’s right about this. Thus, the article below, written by an expert criminal appellate attorney.

That being said, this is an episode of Inside Baseball. Its for defense attorneys, or those curious souls wishing to peek behind the curtain.

Enjoy Patrick Megaro’s two part warning to we defense attorneys, Part 1 is listed below, I’ll have Part 2 out shortly.

Patrick Michael Megaro is a criminal appellate and post-conviction relief attorney, who practices in New York, New Jersey, North Carolina, Florida, Texas, and Washington State, and numerous Federal courts. A native of New York, he started his legal career with The Legal Aid Society, Criminal Defense Division in New York City as an institutional public defender before going into private practice. As an attorney, he has tried over 50 cases to verdict in various State and Federal courts, and has handled thousands of appeals and post-conviction relief petitions. He is a partner in the Orlando-based firm Halscott Megaro, P.A. and Appeals Law Group.

“This issue before us was not properly preserved for appellate review and is therefore not now cognizable. Affirmed.”

We appellate lawyers cringe when we see these words written, especially in our own case decisions. This means that no matter how brilliant the trial attorney was, they did not make a specific, timely objection at the trial level, which has effectively waived their client’s right to appeal that issue.

First, let us start with something we have all (should have) learned in law school: general, non-specific objections are insufficient to preserve an issue for appeal.

While we all know this, but MANY times we see trial lawyers simple say “objection” or “We object to ____” without going further.

“Preservation of error principles require parties to be specific with their objections so as to inform the trial court of the perceived error.” State v. Garza, 118 So.3d 856 (Fla. 5th DCA 2013).

This means you have to spell out WHY you object – be it in a motion, a post-hearing memorandum of law, a written notice of objection, or an argument on the record at the appropriate time why something is legally erroneous. The objection must be SPECIFIC.

Second, the objection must be TIMELY and CONTEMPORANEOUS. This means that you have to immediately object when something is coming into evidence – sometimes before and after.

The law requires certain objections to made at certain times in order to properly preserve them. Here are some practice tips for the most common issues that arise during the course of a trial:

If you move to suppress evidence prior to trial, make sure you make another objection at the time the evidence is introduced in order to preserve the objection. You can make the objection at the time of introduction by incorporating your prior arguments, and by making any new arguments that came up during the trial (such as authenticity, foundation, etc).

The issues regarding introduction of evidence should be made before introduction of the evidence, and MUST be made again at the time the evidence is offered. If the prosecutor files a motion in limine, make sure you either file a response objecting to the evidence, or place your reasons on the record and incorporate those reasons at the time the evidence is introduced.

If the issue concerns introduction of evidence, make sure you do a full voir dire and place the specific reasons on the record why the evidence fails to meet foundational requirements, is otherwise inadmissible, and why it is prejudicial to you. The point is to create a record.

If you object to a prosecutor’s voir dire, you must make an objection at the time of the offending voir dire, and AGAIN prior to the jury being sworn. See Joiner v. State, 618 So.2d 174, 176 (Fla. 1993) (holding that to preserve a contemporaneous objection to voir dire, a defendant must renew the objection prior to the jury being sworn or accept the jury subject to the specific prior objection in order to “apprise[ ] the trial judge that [the defendant] still believed reversible error had occurred”); Barnette v. State, 768 So.2d 1246, 1247 (Fla. 5th DCA 2000) (“[T]he appellant did not properly preserve this issue for appellate review because he failed to renew his objection and motion for mistrial before the jury was sworn.”)

If you move to strike a juror for cause and the challenge is denied, you must :

(1) Exhaust all remaining peremptory challenges;

(2) request additional peremptory challenges that are denied;

(3) identify specific jurors whom the party would have excused if possible, but who ultimately served on the panel;

(4) renew the objection BEFORE the entire jury is sworn, or else the appellate court will presume the objection abandoned

The specific basis for challenging EACH juror in question must be raised during voir dire; if not, it is not preserved for appeal.

All criminal defense attorneys should be familiar with the three-step Batson procedure.

1. You must make a prima facie showing that the prosecutor’s peremptory challenge was based on race or another impermissible ground and demand a race-neutral explanation for the strike. You must define the excluded group and the excluded individuals at the time peremptories are challenged. It is better if you can make the targeted group as broad as possible (blacks, hispanics etc.) If you are stuck with having to combine, combine at the broadest level you can (black women, hispanic men).

If you do not make a sufficiently detailed objection based upon the numbers and qualities or qualifications of the juror or jurors at issue, your application will be denied without the prosecutor having to say anything.

YOU MUST ALSO DEMAND A RACE-NEUTRAL REASON. Yes, I said it twice.

2. If the court determines that a prima facie case was shown, the burden of production shifts, and the prosecutor must give a facially neutral reason for each challenge.
3. If the court determines that a facially race neutral reason was provided, then the defense must demonstrate that the proffered reason is pretextual, typically by arguing any one or more of five factors:
   • alleged group bias not shown to be shared by the juror in question,
   • failure to examine the juror or perfunctory examination, assuming neither the trial court nor opposing counsel had questioned the juror,
   • singling the juror out for special questioning designed to evoke a certain response,
   • the prosecutor’s reason is unrelated to the facts of the case, and
   • a challenge based on reasons equally applicable to other jurors who were not challenged. (This is the big one)
4. In order to preserve the objection, you must AGAIN make the objection BEFORE the jury is sworn, specifically challenging the factual assertions on which the race-neutral reasons are based.

PART II to follow

For more practice tips visit Halscott Megaro at

• https://www.appealslawgroup.com/blog/
• https://www.facebook.com/appealslawgroup/
• https://www.facebook.com/NewYorkWeeklyRoundup/
• https://www.facebook.com/New-Jersey-Weekly-Roundup-Criminal-Appeals-808602875931084/
• https://www.facebook.com/halscottassociates/