An appeal begins long before a notice of appeal is filed. Many appellate issues are won or lost by what happened in the trial court: whether counsel objected, whether the correct ground was stated, whether excluded evidence was preserved through an offer of proof, whether a motion was renewed when necessary, and whether the record shows exactly what the judge ruled.
Preservation affects the standard of review
Massachusetts appellate courts ordinarily review properly preserved errors under standards that give meaningful effect to the objection made below. Unpreserved errors are typically reviewed under the more demanding “substantial risk of a miscarriage of justice” standard in noncapital criminal cases.
That difference can be outcome-determinative. An appellate court can agree that something went wrong and still affirm because the claim was not preserved and the error did not meet the more stringent standard.
A timely, specific objection is usually the safest practice
The Massachusetts Guide to Evidence provides that a party challenging admitted evidence should make a timely objection or motion to strike and state the specific ground unless it is apparent from context. When evidence is excluded, counsel generally should make an offer of proof sufficient to show what the evidence would have been and why exclusion was harmful.
Motions in limine can preserve some issues—but not every issue in every posture
Massachusetts law recognizes that, in certain circumstances, a specific objection to the same evidence raised and denied in a motion in limine may preserve the issue even without another objection at trial. But preservation rules vary with the issue, and counsel should not assume a pretrial motion eliminates the need to object when the evidence is actually offered.
Suppression issues require attention to Rule 13
Massachusetts Rule of Criminal Procedure 13 requires pretrial motions to identify grounds with particularity, and grounds that reasonably could have been known but were not stated may be treated as waived. Suppression motions should therefore be drafted with the appellate record in mind: the factual basis, constitutional theory, requested relief, evidence presented at the hearing, and judge’s findings should be clear.
Make the ruling clear
An appellate court reviews a record, not counsel’s memory of what occurred. If the court’s ruling is ambiguous, counsel should respectfully seek clarification. If a limiting instruction is requested, the language and ruling should be on the record. If evidence is excluded, the substance should be preserved. If an objection concerns only one part of testimony or an exhibit, the record should identify that part precisely.
Think about the record during trial
Visual exhibits, videos, demonstrations, bench conferences, sidebar discussions, and material displayed to a jury may not automatically translate into a useful appellate record. Trial counsel should consider whether the recording, transcript, exhibit marking, or description will permit a later court to understand what the jury saw and why the issue mattered.
Preservation is not pessimism
Preparing a clean appellate record does not mean trial counsel expects to lose. It means counsel recognizes that contested rulings happen in serious trials and that a client should not forfeit meaningful review because the record is incomplete.
The strongest appellate issue is usually one that was identified early, litigated under the correct legal standard, supported by the necessary evidence, decided clearly, and preserved at the moment the ruling affected the trial.
Sources and authorities
- Massachusetts Guide to Evidence § 103 — preserving claims of error
- Mass. R. Crim. P. 13 — pretrial motions
- Mass. R. Crim. P. 22 — objections
About Kris Aleksov
Kris Aleksov is a Massachusetts trial and litigation attorney. He graduated from UMass Law in 2013, where he served first as an associate member and later as Executive Business Editor of the UMass Law Review. He was admitted to the Massachusetts Bar in November 2013 and is also admitted to the United States District Court for the District of Massachusetts and the United States Court of Appeals for the First Circuit.