As an attorney who does both trials and appeals, I can appreciate the twitchy ambivalence when you need to make a snap decision or offer an impromptu argument at the trial court level that commits to a position that can come back and bite you in the butt on appeal.

Here’s the problem, in a nutshell.  A trial lawyer tries a case to win before a jury, not to make a record in anticipation of losing the trial and preserving an argument for appeal.  Sometimes, the lawyer just hasn’t had a chance to think of every potential argument available, or has one idea in mind but other arguments, sometimes better arguments, just don’t occur to him in the midst of combat.  Other times, he’s forced to make a judgment call and chooses the tact that seems to offer the most benefit before a jury, leaving other arguments on the side of the road.

In the old days, this really wasn’t that much of a problem.  First level appellate courts in New York have plenary powers.  They have full jurisdiction over all issues of law and fact, including an overarching “interest of justice” jurisdiction that would assure every appellant the availability of full appellate review.

Then one day, somebody came up with the bright idea of “preservation”.  Preservation is the concept that an issue or argument was raised before the court below, thus giving the judge and adversary an opportunity hear, argue, consider and rule on the issue.  Preservation quickly became the favorite argument of the prosecution (since it’s almost always the defendant appealing) and first level appellate courts to toss an important, viable, significant issue or argument out the window as a means of not dealing with it.

In almost every respondent’s brief I get these days, the first level of defense is lack of preservation if there is any colorable basis for the argument.  Prosecutors parse the most minute nuances of arguments made below to raise the specter of an unpreserved point.  They do this knowing that there is a 99.3% (I just made this number up, but I bet it’s not too far off) chance that the court will seize upon it as an excuse to avoid ruling on the issue.

Not only does the issue preservation undermine fundamental notions of justice, but it’s an abdication of judicial responsibility.  It shifts the responsibility to do justice from the courts to the attorney for the defendant, preventing review if there is any arguable claim that the lawyer was less than comprehensive, made a tactical choice or just plain screwed up.  And if he did, the remedy is to go back, challenge whether the defendant received ineffective assistance of counsel because of the lawyer’s failure to raise an issue or make an argument, and then try again.  Unfortunately, the standard for effective assistance of counsel is far below perfection.  Far, far, far below perfection.

So why do first level appellate courts, who always have the power of plenary review, chose escape out the back door of lack of preservation rather than do their jobs of deciding whether the defendant was properly convicted?  The theoretical basis is one of fairness.  We like fairness, in general, as it sounds so like we’re doing the right thing.  But fairness to whom and why?  This is where the entire preservation escape hatch fails.

Preservation is intended to provide fairness to the judge below, to protect her from the stigma of reversal for an error that was never claimed or presented, and hence she had no opportunity to avoid.  But nowhere in the Constitution do we find anything about the rights of judges to fairness or protection.  And certainly, no notion of fairness to judges can be said to trump the rest of those express rights that are provided defendants.  How did preservation come to trump all else?

There is an ugly, cynical side to preservation that is hidden behind this fairness notion.  This is particularly true when you remember that the first level appellate courts maintain the power to review anything they want to review, making preservation an announcement that they have affirmatively chosen to ignore injustice and error.  It protects their decision as well, since the top level appellate court, the Court of Appeals, is a court of limited jurisdiction rather than plenary power, and a lack of preservation decision almost always precludes further review.

It is important to understand the depths to which lack of preservations goes in order to appreciate how insidious it is.  If an objectionable question is asked, but the defense attorney doesn’t object, it is unpreserved.  Maybe the client chose that moment to whisper in the attorneys ear and he missed the question.  Too bad.  Move on.  If a surprise ruling is made from the bench and the attorney, on his feet trying to deal with being sandbagged, misses an argument against it, it is unpreserved.  Too bad.  Move on. 

But if the ruling was wrong, or the question objectionable, why should the defendant be denied the opportunity to challenge it on appeal.  After all, isn’t that why we have appellate courts?  Why yes, that is the reason.  Or at least it used to be.  Now it’s a game of “gotcha” to see how perfectly the lawyer defended, an odd concept given that the courts have held that no one is entitled to a perfect defense.

And preservation, like most things legal, has become a slippery slope, with ever-increasing notions of what constitutes adequate preservation.  The prosecutorial attacks on preservation have increasingly raised issues because of specific words used or left out.  The level of detail demanded increases decision by decision, always to the detriment of the defense.  First, an objection was required.  Then an objection with its basis.  Then an objection with its basis in highly specific terms.  Often with citation to a particular rule of evidence.  And so on.  And, of course, most judges won’t let lawyers make talking objections anyway, precluding fulfillment of the preservation requirement.

The concept of preservation is the antithesis of justice.  It’s the elevation of judicial self-protection over justice, the Constitution and fundamental fairness.  Note that fairness is due the guy they are trying to put in prison, not the judges who are paid to do their job properly.  At a time when we learn with regularity of innocent people spending decades in prison for crimes they didn’t commit, appellate reliance on lack of preservation to ignore error is inexcusable. 

No matter how much easier it may be for courts to punt, clear their overburdened dockets and cover the backs of their brethren, preservation is one of the most insidious enemies to the legitimacy of our court system.  If we cannot look to appellate courts to fulfill their responsibility of plenary review, then there is no place left to turn.