Appellate court judges generally don’t consider new evidence, meaning their rulings are based only on the trial court “record.” (There are exceptions, though—one is when a defendant seeks a new trial because of evidence discovered after trial.) A record includes such materials as a transcript of the testimony and arguments, exhibits the trial judge admitted into evidence, and written motions.
When defense attorneys talk about making a “good record” for appeal, they typically refer to documenting attempts to get the judge to admit or exclude certain evidence, or to instruct the jury in a particular way. Thus, to make a good record is to put before the trial court judge all the information that a defendant wants an appellate court judge to have when deciding whether to reverse a guilty verdict or sentencing decision. (Making a good record during sentencing can involve getting the judge to explain the precise reasons for a sentence.)
In addition to offering all the testimony and documents supporting their claims, the actions that defense attorneys can take to produce a good trial court record include:
Making offers of proof. An offer of proof typically consists of a summary of the testimony that a witness will give if the judge allows the witness to testify. If the trial judge rules that the testimony is inadmissible, making an offer of proof provides an appellate court with a basis for determining whether that ruling was wrong.
Translating gestures into words. If a court reporter can’t transcribe testimony, an appellate court judge probably won’t be able to determine its meaning or admissibility. For example, assume that a witness testifies, “I was standing this close to her,” and holds up her hands to indicate the distance. The distance may be clear to everyone in the courtroom, but not to someone who’s simply reading a transcription of the proceedings. To make a good record, the attorney should translate the gesture into words—for example: “For the record, the witness is holding her hands about two feet apart.”
Making all legitimate objections and arguments. As a general rule, appellate court judges ignore arguments that are made for the first time on appeal. The idea is that if the trial judge didn’t have a chance to rule on the issue, the defendant has given up the right to argue the point. (The “plain error rule” is an exception to this requirement. If the trial judge makes an obvious mistake that affects a defendant’s substantial rights and the integrity of the trial process, an appellate court may reverse a conviction even though the defendant failed to object during trial.)
Consider the following examples, which illustrate ways to make a record.
The Sneaky Witness. A prosecution witness, alleged victim Suzie Fels, sneers at defendant Andrew Williams while he is testifying. Suzie mouths in a whisper to the jury, “Evil man—I hope he hangs.” The defense attorney should recite what happened for the record. The attorney may say something like, “Your Honor, let the record reflect that the witness is making faces at my client and whispering to the jury.” Unless the witness’s misconduct is a matter of record, an appellate court won’t consider it. The lawyer should ask the judge to order the witness to cease with the behavior and report what she said; the lawyer should also request that the judge order the jury not to consider the witness’s comments.
Waive it Goodbye. Dave Lenoman is on trial for burglary. Dave’s defense is an alibi. During the trial, he asks the judge to receive into evidence a hotel receipt showing that he was out of town on the evening of the burglary. The judge rules that the receipt is inadmissible hearsay, and refuses to admit it into evidence unless Dave offers evidence showing that the receipt is a business record (a type of potentially admissible hearsay). On appeal, Dave submits an affidavit from the hotel clerk demonstrating that the receipt was a business record. An appellate court won’t consider the clerk’s affidavit. Dave failed to offer the necessary evidence at trial, so he can’t present it for the first time on appeal.
A Missing Objection. Same case. During Dave’s trial, the prosecutor offers evidence that Dave had previously been convicted of drunk driving. Dave neglects to object to this evidence. Because Dave didn’t object during trial, an appellate court won’t consider his argument that the evidence was improperly admitted.