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How to Preserve Error at Trial – An Appellate Lawyer’s Viewpoint — PART 2

How to Preserve Error at Trial – An Appellate Lawyer’s Viewpoint — PART 2Sometimes in life, you have to speak up. Yes, that’s what you pay an attorney for. But no, it doesn’t always work the way it should. And unfortunately, if your attorney doesn’t object when he/she should have–this will create all sorts of problems later.

The good news is, we have appellate attorneys like Patrick Megaro. He solves the problems created by all the things that go wrong during a criminal trial. And yes, lots can go wrong.

Enjoy Part 2 of Patrick Megaro’s warning to we defense attorneys, he’s going to remind us how to keep a criminal jury trial clean enough to reverse the conviction on appeal–should things come to that. I published Part 1 of his article a few weeks ago, it deals with pretrial motion issues and voir dire.

Look, I know that you attorneys out there think you know everything–but you don’t. Quit being so cocky. You can’t learn anything if you think you know everything.

Read this.

Patrick Michael Megaro is a criminal appellate and post-conviction relief attorney, who practices in New York, New Jersey, North Carolina, Florida, Texas, and Washington State, and numerous Federal courts. A native of New York, he started his legal career with The Legal Aid Society, Criminal Defense Division in New York City as an institutional public defender before going into private practice. As an attorney, he has tried over 50 cases to verdict in various State and Federal courts, and has handled thousands of appeals and post-conviction relief petitions. He is a partner in the Orlando-based firm Halscott Megaro, P.A. and Appeals Law Group.

Opening Arguments and Summation

To preserve for appellate review an issue relating to an alleged improper comment, a party must object to the comment when it is made and obtain a ruling on the objection. If a party objects to the comment, but fails to secure a ruling from the trial judge, the issue is waived unless the judge deliberately and patently refuses to rule on the objection.

If the trial judge sustains the objection, the objecting party must make a timely request for a curative instruction or a motion for mistrial to preserve the issue for appellate review. The motion for mistrial must be made before the jury retires to deliberate.

Motion for a Judgment of Acquittal

“The defense moves for a judgment of acquittal because the State has failed to make a prima facie case” is INSUFFICIENT to preserve a sufficiency issue for appeal.

Consider the following:

That said, when a motion for judgment of acquittal is well taken, I have never understood why an attorney’s failure to make a sufficient motion for judgment of acquittal is not ineffective assistance on the face of the record. Even a marginally prepared attorney should know the elements of the offense for which a client is on trial. That marginally prepared lawyer ought to be expected to listen to the evidence closely enough to know whether the State failed to prove an essential element of the offense. There rarely, if ever, is a tactical reason for a lawyer not to move for a judgment of acquittal when the client is entitled to be acquitted.

Stoddard v. State, 185 So.3d 696, 697 (Fla. 2d DCA 2016 )(Altenbrand, concurring)

A motion for a judgment of acquittal has to be made at the close of the State’s evidence, and AGAIN at the close of ALL evidence, even if the defense does not put on a case, in order to properly preserve the issue.

Of course, you should identify the specific elements which are lacking evidence, and be prepared with caselaw and to argue the trial record why the evidence was insufficient.

Jury Instructions

Jury instructions typically are discussed with the court prior to the court’s final instruction to the jury at a charge conference. This is the defendant’s opportunity to propose instructions, make objections to instructions, and request specific instructions to address issues that pertain to the trial.

However, the objection MUST BE MADE AGAIN after the court delivers the instruction to the jury and BEFORE the jury retires to deliberate. When the court reads the instructions to the jury, request a sidebar ON THE RECORD and repeat the objections made earlier. If you do not, the issue is waived for appeal.


In order to preserve a sentencing argument, the objection must be made BEFORE and AFTER sentence is imposed. We have learned the hard way that relying on a judge who says “your exception is noted” is insufficient to preserve a sentencing error. Whatever objections to make to the Pre-Sentence Report, the Sentencing Scoresheet, or anything else must also be made AGAIN after the court formally pronounces sentence or else it is waived.


We have all tried cases that we knew would be extremely difficult, if not impossible, to win. It is easy to look at a seemingly hopeless situation and forget to properly preserve issues for appeal. However, I can tell you that I have had more than my fair share of cases that were “dead losers” at trial but came back on appeal because the court or the prosecutor thought that because there was overwhelming evidence of guilt, they could be free to take shortcuts. In those cases, the preservation of error for appellate review was the trial attorney’s greatest accomplishment.

Without proper preservation, appellate lawyers have to argue fundamental error, which is almost impossible. Florida courts and Federal courts rarely, if ever, reverse on fundamental error. This is why proper preservation is extremely important.

For the close case, appellate courts are more likely to reverse if an issue was properly preserved.

For the cases that felt like trial was a “suicide run,” this is all the hope the client has.

For more practice tips visit Halscott Megaro at

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