Appellate Review of Unpreserved Questions in the Criminal Cases: An Attempt to Define the 'Interest of Justice'

Journal of Appellate Practice and Process, Vol. 11, No. 2, p. 285, Fall 2010

St. John's Legal Studies Research Paper No. 1892465

40 Pages Posted: 22 Jul 2011 Last revised: 22 Aug 2012

Date Written: July 20, 2011


As a general rule, an appellate court can consider a claim on appeal only if the appellant properly preserved it in the court below. A claim or issue is preserved if it was presented to the lower court at the proper time and with sufficient specificity so that the trial court had an opportunity to correct the alleged error at the time it was made. Preservation is thus accomplished by a simple, timely on-the-record objection along with a brief explanation of its basis. Ordinarily, a court will not grant relief on a claim that is presented for the first time on appeal.

Preservation serves important purposes. A timely and specific objection alerts the trial court and the adversary to the alleged error, giving both an opportunity to correct the problem or take ameliorative action, thus potentially obviating the need to raise the issue on appeal. It thus encourages truth-seeking, the efficient resolution of the case, and the conservation of appellate resources. Preservation also discourages gamesmanship by preventing a party from saving a trump card argument until appeal.

However, preservation is not without its costs, particularly to a criminal defendant. When an attorney unwittingly fails to preserve an argument, his or her client may serve a potentially lengthy sentence even though an otherwise viable claim for a new trial may appear on the record.

In recognition of this dilemma, some legislatures and courts have crafted a narrow exception to the preservation requirement. In limited circumstances, an appellate court may consider an unpreserved question even though no objection or other protest was made to the trial court. This article will consider the approaches taken by the federal courts and New York state in this area.

On their face, the approaches seem very different. The federal rule is detailed, specific, and structured. New York, on the other hand, simply directs its intermediate appellate courts to consider unpreserved questions if doing so is in the interest of justice. Despite these apparent differences, the rules are actually quite similar in practice.

In the federal system, the Court of Appeals or Supreme Court can notice an unpreserved issue if it constitutes a plain error. Decades of Supreme Court precedent have resulted in a four-part test to determine whether an error qualifies as plain. Ultimately, however, the plain error rule is unsatisfactory for two reasons. First, one aspect of the test boils down to whether the defendant can show prejudice by the failure to preserve the claim. In other words, the defendant must demonstrate a successful appellate claim in order to overcome the preservation hurdle. Thus, preservation is fairly meaningless. If the defendant has a winning argument on the merits, the court will dispense with preservation. If, on the other hand, the defendant‘s claim would fail anyway, the court will apply preservation to bar the claim. The result, either way, is that the court is looking beyond the failure to preserve and analyzing the merits of the claim, creating exactly the type of inefficiency that preservation is designed to avoid.

Second, the federal rule is problematic because it provides discretion to the appellate court to determine, notwithstanding the presence of a prejudicial error, whether a miscarriage of justice would result if the plain error rule was not applied. Yet, the courts have not provided a workable definition of miscarriage of justice, except most agree that the plain error rule should be used to free an innocent person.

New York has a similarly unworkable rule. In New York, only intermediate appellate courts typically, the Appellate Division of the Supreme Court can decide unpreserved questions. Statutory authority provides that they may do so only in the interest of justice. No further guidance or explanation about this ambiguous term is provided by statutes or case law. The result is a hodgepodge of cases that seem to suggest that an appellate court will exercise its interest-of-justice jurisdiction only if the defendant has a winning claim on the merits. Otherwise, it will find the issue to be unpreserved and will decline to exercise its interest-of-justice authority to review the claim. Thus, as with the federal plain error rule, New York‘s preservation doctrine is essentially a meaningless smokescreen.

In this article, I will propose a new way of looking at these preservation exceptions in criminal cases. I suggest a number of substantive factors to aid courts in deciding whether the interest of justice warrants appellate review. I also encourage courts to be more explicit in explaining why they are or are not granting exceptions to preservation on a case-by-case basis.

I will proceed as follows: In Part II, I will discuss the competing policies between preservation and defendants‘ due process rights. In Part III, I will compare and contrast the federal and New York exceptions to preservation, noting the flaws in each test. In Part IV, I will demonstrate why a factors test would better serve the goals of preservation while providing for needed exceptions. I will also outline a workable factors test for courts to apply.

Suggested Citation

Cunningham, Larry, Appellate Review of Unpreserved Questions in the Criminal Cases: An Attempt to Define the 'Interest of Justice' (July 20, 2011). Journal of Appellate Practice and Process, Vol. 11, No. 2, p. 285, Fall 2010, St. John's Legal Studies Research Paper No. 1892465, Available at SSRN:

Larry Cunningham (Contact Author)

Charleston School of Law ( email )

81 Mary Street
Charleston, SC 29403
United States
843-377-2145 (Phone)

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