Yet again, Nicole Black at Sui Generis has unearthed a Court of Appeals decision of enormous consequence for the trial lawyer and appellate lawyer alike.  In People v. Person   (no jokes about the caption, this is serious stuff), the defense attorney sought to impeach the defendant’s accomplices by means of videotape interviews. 

After using transcripts of the interviews to show prior inconsistent statements, counsel sought to show the video to the jury.  The trial judge refused on the basis that the accomplices admitted on the stand that their statements were inconsistent.  Defendant convicted and appeals.

The Court of Appeals, in a curious decision that lacks any case citations whatsoever (thus raising the question of whether they just make this stuff up as they go along)*, held that the issue was unpreserved.

Before our Court, defendant asserts that preclusion of the videotaped statements was erroneous as a matter of law because Supreme Court failed to recognize that the jury could not reliably gage the credibility of the witnesses without viewing their demeanor and hearing their voices during the police interviews. 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.

A bit of a nuanced distinction?  Perhaps, but there is a far more sinister aspect to this decision then readily appears on the surface.  The practical implications of this decision for real trial lawyers is devastating.

As every trial lawyer knows, we are lucky to get out a sentence or two of our argument before being interrupted by the court or prosecutor,  and are then thrust into response mode as we are called frivolous and our point demeaned as meritless.  Rarely, if ever, will a trial judge give us the latitude to express a full argument, and indeed we are often not permitted to argue at all.

Bear in mind that when trying a case, we try it to win.  We don’t try it to appeal.  We know this.  So do appellate judges.  There is a tipping point where one can annoy the judge only so far before she is ready to rip out your throat and embarrass you before the jury.  And going into legal arguments while the jury is in the box always annoys the judge. 

Further, judges really hate when lawyers start putting arguments on the record that any half senscient judge already knows.  Judges find it insulting (and it is), and most assuredly don’t want to hear it and waste yet more time that could be better spent convicting defendants.   Does the Court of Appeals have so little respect for trial judges that it will hereinafter assume that an argument that would be obvious to a first year law student is not preserved at trial if left unspoken to the trial judge? 

Doubtful.  It’s far more likely that the Court of Appeals has come to recognize and appreciate the utility of preservation as means of disposing of unpleasant issues and hard cases.  Of course, in doing so, they elevate the desire to give trial judges the opportunity to rule in the first instance over the interest of due process and convicting the innocent.  This has been happening for a long time now (remember federal habeas timeliness?), and is a reflection of society’s frustration with perceived “technicalities” that let criminals off the hook.  Technicalities like the Constitution.  Hey, if it hasn’t helped stop the war on terrorism, why should it be any better in the war on crime?

So what is the trial lawyer to do?  The answer seems painfully apparent.  And I use the word “painful” intentionally.  Rather than attempt to blend the legal arguments and objections into the fabric of a trial, to avoid annoying the judge and jury with the delays that accompany lawyers doing their jobs, we will be constrained to argue every minute detail of our positions, including those nuances that are contrary to existing law but may potentially change over the course of the few years following an inchoate conviction.  And when our trial judge, who has been kind and considerate to us thus far during trial begins to show signs that her head is about to spin in a circle and explode, we explain:  We do not do this because we choose to make your life miserable.  We do this because the Court of Appeals demands it of us. 

* As noted by Eric Turkewitz in his comment to Nicole’s piece.