Insight Preserving Issues for Appeal: Leaving Breadcrumbs for the Way Home

This article was originally published in the August 2015 Edition of The Advocate – the official publication of the Idaho State Bar. Online access to the original version of this article can be found via the Idaho State Bar’s website or via HeinOnline (login required).

Co-Authored by Brian Dickson

Some of the most horrifying words an attorney can read are that an issue “will not be considered on appeal.” These words can appear in both civil and criminal appellate opinions, and can result from failing to comply with appellate rules or to adequately preserve an issue for appellate review. This article provides guidance on how attorneys can avoid those words and, instead, properly preserve appellate issues in both the civil and criminal contexts, primarily in Idaho state courts.¹

Rules applicable to both civil and criminal cases

Following the rules to bring an appeal. The simplest method for bringing an issue to the attention of an appellate court is also the most common: follow the path outlined in the rules. This starts with the pleadings. Idaho Rule of Civil Procedure 8 does not require much from parties in the way of pleading, but it does at least require, “a short and plain statement of the claim showing that the pleader is entitled to relief,” or a statement “in short and plain terms [of] the defenses to each claim asserted.”² As the Idaho Supreme Court stated, “we will only consider the causes of action alleged in the complaint, not causes of action that could have been alleged under the facts presented, but were not.”³ Thus, if you want a claim or defense considered on appeal, put it in the pleadings.

The next step to preserve an issue is to at least present it to the lower court.⁴ As the Idaho Supreme Court has said repeatedly, it “will not consider arguments raised for the first time on appeal.”⁵ Some issues, such as the correctness of an evidentiary objection, require not just mere presentation to the lower court but an actual adverse ruling before the appellate courts will address them.⁶

Trial counsel should also strive to make an adequate appellate record. The appellate courts can only review the cold record, and so if an objection or discussion of an issue occurs off the record, in chambers, or is otherwise not adequately recorded, the appellate court cannot properly review any potential errors in the ruling. For example, in Bach v. Miller, the Idaho Supreme Court refused to address issues because the appellant had failed to include those issues in the record.⁷ “On appeal, the party challenging the decision below has the burden of showing error in the record.”⁸ The best way to ensure this is to make sure the relevant documents get into the trial court’s file.⁹ If a document is not in the file, it is difficult (if not impossible) to get it in front of the appellate court later.¹⁰

Likewise, in W Cmty. Ins. Co. v. Kickers, Inc., the relevant documents were not included in the appellate record, and the Court noted specifically it would not consider the documents unless they were part of the record, or later added in by motion.¹¹ When the appellant tried to get the documents in front of the Supreme Court’s eyes by attaching the documents to the appellate brief,¹² the Supreme Court refused to consider the documents.¹³ Trial counsel should also make a record when the trial court refuses to admit evidence at trial. Failure to make a record of what that evidence would have been will negatively impact the client’s chances on appeal.¹⁴

After the issues have been presented to the lower court, the next step is to obtain an appealable order or judgment. Idaho Appellate Rule 11(a) sets forth the types of appealable orders. The primary method of appeal is to obtain a final judgment. “Only final judgments are appealable as a matter of right.”¹⁵ Other methods of obtaining an appeal include obtaining a Rule 54(b) certificate from the district court,¹⁶ or obtaining a permissive appeal under Idaho Appellate Rule 12.

Once a party has an appealable judgment, or is otherwise permitted to appeal, the party must file a notice of appeal or cross appeal.¹⁷ Although the notice of appeal must contain a preliminary statement of issues on appeal, “any such list of issues on appeal shall not prevent the appellant from asserting other issues on appeal.”¹⁸

Finally, a party should ensure the record contains everything upon which the party will rely. Idaho Appellate Rule 28 specifies what is automatically included in the record. Parties can, however, request the inclusion of additional documents, either in their notice of appeal¹⁹ or by filing a subsequent request or motion.²⁰ Appellate courts may not consider issues for which there are no supporting documents in the record. It is worth noting that the rules for creating a record in the 9th Circuit are significantly different from Idaho state rules, and those rules should be examined before practice in the 9th Circuit.²¹

Other methods to obtain appellate review

Although the best practice is to first raise an issue in the lower court, certain issues, such as mootness, standing, or subject matter jurisdiction, can be raised for the first time on appeal.²²

Additionally, a respondent may be able to raise its own issues without filing a cross appeal by requesting affirmance on different grounds or asking the appellate court to address issues not decided by the lower court.²³ When attempting to raise issues without filing a cross appeal, however, the respondent should take care to properly brief the issue, as outlined below. “Merely referring this Court to the party’s brief filed in the trial court does not comply with Rule 35(a)(6).”²⁴ That being said, not filing a cross appeal may result in an issue not being addressed.²⁵ A party should thus analyze whether a cross appeal is necessary to preserve an issue. Even if it seems excessive for a respondent to file a notice of appeal (or cross-appeal) on minor issues, discretion is the better part of valor; taking that step could ensure preservation of the issue and save you from those words you don’t want to hear.

Rules for briefing

To adequately preserve an issue, parties also must carefully follow the briefing rules addressing length, content, and arrangement of briefs, among other things, set forth in Idaho Appellate Rules 34 and 35. Failure to comply with the rules contained therein can be disastrous. For example, in a string of cases brought by the same pro se litigant, the Supreme Court repeatedly knocked out issues on appeal purely because of failure to comply with Rule 35.²⁶ However, it’s not just pro se litigants who suffer the effects of this rule; it can happen to represented parties just as easily.²⁷

All appellate opening briefs, of whatever nature:

• must contain certain headings and subsections;
• cannot exceed 50 pages; and
• must cite “to the authorities, statutes and parts of the transcript and record relied upon” or risk the Court choosing not to consider the argument.²⁸

Similarly, parties must raise issues on appeal at the proper time. “A reviewing court looks to the initial brief on appeal for the issues presented on appeal,”²⁹ and, “will not address an issue raised only in the reply brief.”³⁰ Thus, if you want the Supreme Court to consider an issue, put it in the opening brief and support your position with citations to the record and authority. Raising it in a reply brief or at oral argument will be too late.³¹

Preservation issues unique to the criminal appeal

The fundamental error standard. In the criminal context, preserving error in the lower court is critical because if an error is unpreserved, it may only be reviewed on appeal under the plain error standard in federal courts or the fundamental error standard in Idaho state courts. The federal plain error standard requires the appellant to show that there was “(1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings.”³²

Idaho’s fundamental error test is similar to the federal plain error test, but it is distinct because, as the Idaho Supreme Court has pointed out, Idaho’s criminal rules do not have an equivalent to Fed. R. Crim. Pro. 52(b), which is the basis for the plain error review.³³ This portion of the article is going to focus on Idaho’s fundamental error test under State v. Perry.³⁴

Under Perry, the appellant must show three things: (1) that one or more of his unwaived constitutional rights was violated; (2) that the error is clear or obvious from the face of the record; and (3) that the error affected the outcome of the proceedings.³⁵

The first prong of the Perry test has two elements. First, the error has to impact a constitutional right. This means that violations of statutes or other rules, such as the rules of evidence, will not be reviewed unless they are preserved, no matter how clear the violation might be.³⁶ Second, the constitutional right has to be unwaived. Thus, an invited error argument can derail a claim of fundamental error.³⁷ However, it may still be possible to raise the violation of a right that was “forfeited” (i.e., the right was not timely invoked) as fundamental error.³⁸

Under the second prong of the Perry test, the appellant must be able to show that the error is “clear and obvious” from the record. This means that the appellant cannot base his claim of error on evidence that is not in the appellate record.³⁹ There also cannot be an open question of whether the decision not to pursue the issue was a strategic decision by trial counsel, or an open question of law on the issue.⁴⁰

Although the first two prongs are challenging to establish, the third prong of the Perry test is, perhaps, the most difficult hurdle for an appellant to overcome. Ordinarily, for a preserved issue, when the defendant shows error, the State bears the burden of proving that the error is harmless beyond a reasonable doubt.⁴¹ For an unpreserved error raised under Perry, however, that burden shifts. The appellant must show there was a reasonable possibility that the error contributed to the verdict in the case.⁴²

The impact Perry can have

Two recent decisions from the Idaho Court of Appeals demonstrate the enormous impact this shift in the burden of proof can have: State v. Moffat⁴³ and State v. Moad.⁴⁴ In both cases, the defendant alleged a violation of his right to be free from double jeopardy because he had been convicted for two separate offenses arising from the same course of criminal conduct. In Moffat, the appellant had preserved the issue with a motion to dismiss, and the Court of Appeals ultimately found a double jeopardy violation. In Moad, however, the defendant raised his claim for the first time on appeal through fundamental error. The Court of Appeals held, “Even if we assume that this claim of error satisfies the first two prongs of the Perry test in that Moad alleges a violation of an unwaived constitutional right and that error is clear or obvious from the record, he has not met his burden to show that the error affected the outcome of the trial proceedings.” As such, the Court of Appeals affirmed both of his convictions.

Perry by the numbers

The two contrasting results in Moffat and Moad show that obtaining relief on a claim of fundamental error under the Perry test is extremely difficult. Since Perry was issued in 2010, there have been 130 cases in which 231 claims of fundamental error have been addressed under the Perry test.⁴⁵ The appellate courts have found error or assumed error existed in only 65 of those claims. There were also six claims where error was conceded. These statistics mean that appellants only surmounted the first prong of the Perry analysis in 30.7% of fundamental error claims.⁴⁶ Relief was only granted on 11 of the 65 claims where error was found, and relief was granted in only one of the six cases where error was conceded. This means that, in 84.5% of claims where error was found, the courts found that the appellant had not shown the error was clear from the record or had not shown that the error prejudiced him. The bottom line is this: only 4.8% of claims of unpreserved error have actually satisfied all three prongs of the Perry analysis.

Therefore, trial attorneys in the criminal arena should be aware that, by not preserving claims of error, their clients are unlikely to get relief for errors that occurred during the trial process. To protect their clients’ interests, trial attorneys should be looking for ways to preserve issues.

Methods to preserve issues

One of the best ways to preserve an issue for appeal is by engaging in pretrial motion practice. By filing motions in limine to address potential issues that may arise, attorneys can fully argue, and thus, preserve, an issue.

Unfortunately, not all issues can be effectively addressed in a pretrial motion. In some cases, the district court defers a ruling to see how the evidence develops at trial. Trial attorneys should be alert to such rulings because if the attorney does not renew her objection at trial, the appellate court may hold that there was no adverse ruling, and therefore, decide that the issue was not preserved.⁴⁷ In such cases, even though the issue was partially addressed by the trial court, the appellate court still will require the defendant-appellant to show fundamental error under Perry.⁴⁸

In other instances, the issue will not arise until trial. In those cases, the trial attorney needs to make a contemporaneous objection to the error. Such objections should be specific as to the basis for the claim; broad “continuing objections” are disfavored.⁴⁹

There may be times, such as when the issue is an allegation of misconduct in closing argument, when trial counsel might be loath to make a contemporaneous objection because of the effect the objection may have on the jury. Even in those scenarios, a contemporaneous objection is still the best course. If trial counsel decides not to make that contemporaneous objection, he/she should consider making the objection at the end of the closing arguments. While there appears to be an open question as to whether this is sufficiently contemporaneous to preserve the issue for appeal, such an objection at least makes the argument to the district court and gives the client an opportunity to raise the issue without having to satisfy Perry’s stringent standards.

Finally, trial counsel should not shy away from post-trial motion practice. Motions for mistrial or judgments not withstanding a verdict allow trial counsel to present issues to the district court. Such motions also allow trial counsel the opportunity to explain that there was no strategic reason for not objecting to a particular issue, but rather, for example, the objection was missed amid dealing with all the other aspects of trial. Such admissions ultimately benefit the client because, even if he/she has to raise the issue as fundamental error, that admission removes one potential roadblock under the Perry analysis. And, because trial counsel and appellate counsel both are trying to serve the best interests of the client, having this sort of discussion in the record allows for a better, more appropriate resolution of potential errors.

Arguing Perry on appeal

Even with best efforts, however, there still will be issues that have to be raised via fundamental error. In those cases, it will be appellate counsel’s responsibility to properly present the claim under the Perry analysis. Appellate attorneys should look for evidence that the error contributed to the verdict. Such evidence is crucial because the burden of proof that the error was prejudicial is a high hurdle; a cursory assertion that the error affected the outcome is unlikely to satisfy the requirements of Perry. Similarly, appellate attorneys representing respondents should be ready with arguments on all three prongs of the Perry test. Although most claims are not likely to get past the first prong of the test, because the standards on all three prongs favor respondents, it is worth making quality arguments on all three prongs.

Ultimately, the best course is to preserve the issue below because appellate courts prefer to resolve issues on their merits.⁵⁰ Perry makes it clear that, in the criminal law context, the district court should be given the first opportunity to resolve those issues, and when that does not happen, the appellate courts will not review the issue except in the most stringent circumstances.

Conclusion

In conclusion, preserving an issue on appeal starts long before the appeal begins and continues until the last brief is filed. In other words, preserve early and often! Although this may seem like a daunting task, we hope this article will serve as a useful roadmap when you begin your next case so you never have to read those dreaded words again.

Endnotes

1. Where appropriate, citations to federal authority are also provided.
2. Idaho R. Civ. P. 8(a)(1) and (b). See also Fed. R. Civ. P. 8.
3. Telford v. Smith Cnty., Texas, 155 Idaho 497, 501, 314 P.3d 179, 183 (2013).
4. A corollary to this principle is that the party must actually identify the issue to the lower court, and show where in the record support for the argument lies. “The trial court is not required to search the record looking for evidence that may create a genuine issue of material fact; the party opposing the summary judgment is required to bring that evidence to the court’s attention.” Esser Elec. v. Lost River Ballistics Technologies, Inc., 145 Idaho 912, 919, 188 P.3d 854, 861 (2008). See also Venable v. Internet Auto Rent & Sales, Inc., 156 Idaho 574, 582, 329 P.3d 356, 364 (2014), review denied (July 31, 2014); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030-31 (9th Cir. 2001).
5. See, e.g., McLean v. Cheyovich Family Trust, 153 Idaho 425, 430, 283 P.3d 742, 747 (2012). See also In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 2000) (“Absent exceptional circumstances, we generally will not consider arguments raised for the first time on appeal, although we have discretion to do so.”).
6. See, e.g., Slack v. Kelleher, 140 Idaho 916, 922, 104 P.3d 958, 964 (2004) (“Where no motion to strike was made and no ruling was requested or made by the trial court, such alleged error was not preserved for consideration on appeal. Objections to evidence cannot be raised for the first time on appeal.”). See also Saint Alphonsus Diversified Care, Inc. v. MRI Associates, LLP, 148 Idaho 479, 494, 224 P.3d 1068, 1083 (2009) (“If the trial court unqualifiedly rules on the admissibility of evidence prior to trial, no further objection is necessary in order to preserve the issue for appeal. If the trial court does not do so, however, then the party opposing the evidence must continue to object as the evidence is presented. By failing to object when the memorandum was offered into evidence during the trial, St. Alphonsus waived any objection.”). See also Maryland Cas. Co. v. Jones, 35 F.2d 791, 792 (9th Cir. 1929).
7. 144 Idaho 142, 145, 158 P.3d 305, 308 (2007).
8. Id.
9. See W. Cmty. Ins. Co. v. Kickers, Inc., 137 Idaho 305, 306, 48 P.3d 634,635 (2002).
10. Idaho App. R. 28 discusses the standard record, and does not indicate any provision for a party to request items not previously filed with the lower court. Instead, it specifically states, “Any party may request any written document filed or lodged with the district court or agency to be included in the clerk’s or agency’s record.” Idaho App. R. 28(c) (emphasis added).
11. 1137 Idaho at 306, 48 P.3d at 635.
12. Idaho App. R. 34(b) specifically allows for addenda or exhibits to be attached to an appellate brief. The addenda or exhibits may not, however, be used to expand the appellate record beyond what is allowed by the rules. Motions to expand the record are instead done under Idaho App. R. 19 and 30.
13. W. Cmty. Ins. Co., 137 Idaho at 305, 48 P.3d at 635.
14. See, e.g., Thomas v. State, 145 Idaho 765, 770, 185 P.3d 921, 926 (Ct. App. 2008).
15. Walker v. Shoshone Cnty., 112 Idaho 991, 993, 739 P.2d 290, 292 (1987).
16. Idaho App. R. 11(a)(2).
17. See Idaho App. R.17 and 18.
18. Idaho App. R.1 7(f).
19. Idaho App. R. 17(i).
20. Idaho App. R. 19, 30; Bach, 144 Idaho at 145, 158 P.3d at 308.
21. A fantastic resource for dealing with appeals in the 9th Circuit is The Appellate Lawyer Representatives Guide (available at http://cdn.ca9.uscourts.gov/datastore/general/2015/05/06/Final_2014_ALR_Practice_Guide_82514.pdf) (last checked Jun. 26, 2015).
22. McLean v. Cheyovich Family Trust, 153 Idaho 425, 431, 283 P.3d 742, 748 (2012); Dunlap v. State, 146 Idaho 197, 199, 192 P.3d 1021, 1023 (2008); Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 933 (9th Cir. 2008).
23. See, e.g., Campbell v. Kvamme, 155 Idaho 692, 697, 316 P.3d 104, 109 (2013); Stapleton v. Jack Cushman Drilling & Pump Co. Inc., 153 Idaho 735, 742, 291 P.3d 418, 425 (2012).
24. Cummings v. Stephens, 157 Idaho 348, 362, 336 P.3d 281, 295 (2014), reh’g denied (Nov. 5, 2014).
25. See, e.g., Frogley v. Meridian Joint Sch. Dist. No. 2, 155 Idaho 558, 564, 314 P.3d 613, 619 (2013).
26. See Liponis v. Bach, 149 Idaho 372, 374, 234 P.3d 696, 698 (2010); Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146,1152 (2010); Bach v. Miller, 148 Idaho 549, 553, 224 P.3d 1138, 1142 (2010).
27. See City of Meridian v. Petra Inc., 154 Idaho 425, 450, 299 P.3d 232, 257 (2013).
28. See Idaho App. R. 34(b), 35(a)-(b); Liponis, 149 Idaho at 374-75, 234 P.3d at 698-99.
29. Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 508, 95 P.3d 977, 990 (2004).
30. See, e.g., Telford v. Smith Cnty., Texas, 155 Idaho 497, 502, 314 P.3d 179, 184 (2013). See also Nunes v. Ashcroft, 375 F.3d 805, 810 (9th Cir. 2004).
31. Paloukos v. Intermountain Chevrolet Co., 99 Idaho 740, 744, 588 P.2d 939, 943 (1978).
32. United States v. Cotton, 535 U.S. 625, 631-32 (2002) (internal quotations omitted).
33. State v. Perry, 150 Idaho 209, 225-26, 245 P.3d 961, 977-78 (2010).
34. Id.
35. Id. at 225, 245 P.3d at 977.
36. State v. Parker, 157 Idaho 132, 149, 334 P.3d 806, 823 (2014).
37. See, e.g., State v. Norton, 151 Idaho 176, 187, 254 P.3d 77, 88 (Ct. App. 2011).
38. See United States v. Olano, 507 U.S. 725, 733 (1993).
39. Perry, 150 Idaho at 226, 245 P.3d at 978.
40. State v. Hadden, 152 Idaho 371, 375, 271 P.3d 1227, 1231 (Ct. App. 2012).
41. Chapman v. California, 386 U.S. 18, 24 (1967).
42. Perry, 150 Idaho at 226, 245 P.3d at 978.
43. 154 Idaho 529, 530-34, 300 P.3d 61, 62-66 (2013).
44. 156 Idaho 654,659, 330 P.3d 400, 405 (2014).
45. These statistics were compiled by the author and account for only those cases which actually cite to Perry and which actually address a claim under the fundamental error framework through May 4, 2015.
46. In assessing 21 other claims, the Court analyzed the second or third prong of the Perry test without providing analysis on the first prong.
47. See, e.g., State v. Manzanares, 152 Idaho 410, 419-21, 272 P.3d 382, 391-93 (2012).
48. See, e.g., State v. Everhart, No. 41180, 2015 WL 161901, at *5 (Ct. App. Jan. 14, 2015).
49. Hansen v. Roberts, 154 Idaho 469, 474, 299 P.3d 781, 786 (2013).
50. See, e.g., Golay v. Loomis, 118 Idaho 387, 397, 797 P.2d 95, 105 (1990).

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