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I Object! A Blog on Preservation of Error

December 2014


December 17, 2014 11:16 AM | Posted by Christine Davis Graves and Zachary D. Ludens | Permalink

Preservation of Error TipsA recent decision from the Indiana Supreme Court reminds us why it is so important to know the particular rules of your jurisdiction when preserving error during jury selection.

In Oswalt v. State, 19 N.E.3d 241 (Ind. 2014), during voir dire, Oswalt asserted a cause challenge to one juror which was denied.  At that point, the defendant only had one preemptory challenge left and he chose to use it on a different juror who had not been challenged for cause.

On appeal, Oswalt challenged the trial court’s denial of his cause challenge. The state responded that Oswalt had waived his right to challenge that ruling because he had not used his final peremptory challenge to challenge the same juror who he had attempted to strike for cause.

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December 10, 2014 11:38 AM | Posted by Cristina Alonso | Permalink

You have been asked to prepare a set of jury instructions and a verdict form for trial.  What do you do? Where do you start?  In my last op-ed, I discussed how to prepare for the charge conference.  Now it’s time to talk about how to persuade the court to give your requested instructions, the charge conference itself and how to ensure your issues are preserved for review, both as to your requested instructions and your objections to the other side’s proposed instructions.

III. During the Charge Conference
You have your requested instructions and arguments ready, but what should you expect at a charge conference? Some judges may not schedule charge conferences and you may have to specifically ask for such a conference. If the judge refuses to hold a charge conference, object on the record. Also, always ensure that a court reporter is present whenever the instructions or verdict form are discussed. If discussions occur outside the court reporter’s presence, be sure to state for the record what was argued and ruled on when the court reporter is present.

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December 8, 2014 8:30 AM | Posted by Matthew J. Conigliaro | Permalink

Preservation of Error Tips

The Fifth Circuit’s decision in Blessey v. Marine Services, Inc., --- F.3d ---, 2014 WL 5837059 (5th Cir. Nov. 10, 2014), highlights two different ways that adverse pretrial rulings can wind up unreviewable.

Preservation Issue: Summary Judgment
Prior to trial, the appellant sought summary judgment on a purely legal issue. The trial court denied the motion, and the case proceeded to a trial by jury. The appellant lost and challenged the summary judgment ruling on appeal. The Fifth Circuit held that while other circuits will review “purely legal issues” decided on summary judgment prior to trial, the Fifth Circuit follows the view that, once a jury trial is held, the appellate court lacks jurisdiction to consider the summary judgment ruling.

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