BLOG BULLETS:

• The general rule is that motions and/or objections don’t need to be renewed once a judge has definitively ruled.
• Motions and/or objections do need to be renewed if the court hasn’t ruled definitively or if you want to rely on new facts or circumstances that come up after the ruling.
• There are also two specific types of motions which generally need to be renewed; both motions for severance and motions for judgment of acquittal generally need to be renewed at the close of the evidence even if there aren’t new facts or circumstances.

 

NOW THE BLOG:

As a trial attorney, I always worried about whether I’d made the record and preserved my objections.  As an appellate attorney – and hence Monday morning quarterback – I’ve always – or at least often – wished the record was made and the objection preserved a little – sometimes a lot – better.  As part of this, there’s the question of when and whether you need to renew an objection or a motion in order to preserve the record – or to track the title of this post, whether you need to repeat yourself.

The general rule is no.  Rule 103 of the Federal Rules of Evidence expressly states: “Once the court rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”  But there are some important exceptions to this rule, which may come close to swallowing it for a careful attorney.

The first exception is implied by the language of the rule itself – the court has to have ruled “definitively.”  As further explained in the advisory committee notes, “when the trial court appears to have reserved its ruling or to have indicated that the ruling is provisional, it makes sense to require the party to bring the issue to the court’s attention subsequently.”  Fed. R. Evid. 103 advisory committee’s note (2000 Amendment).  Given the ambiguity of “appears to,” “provisional,” and “definitively,” this suggests a best practice of almost always renewing objections.

The second exception is that motions and objections should be renewed if and when facts and circumstances come up during trial that differ from what was presented or assumed when the original motion or objection was made.  Courts have held a new basis for a motion or objection which becomes apparent only after the motion or objection is made can be considered only if the new basis for the motion or objection is brought to the court’s attention.  See United States v. Quintanilla, 25 F.3d 694, 698 (8th Cir. 1994), and cases cited therein; United States v. Parra, 2 F.3d 1058, 1065 (10th Cir. 1993), and cases cited therein.  The Ninth Circuit has suggested differently in at least one case, but that suggestion isn’t a definitive holding.  See United States v. Thomas, 211 F.3d 1186, 1191-92 (9th Cir. 2000) (noting as additional ground for reversing district court’s denial of motion to suppress evidence that detective’s claim was “inconsistent with his other testimony at the suppression hearing and trial” (emphasis added)).  So renew your motion or objection whenever something happens during trial that makes the argument either different or stronger.

The third exception is a subset of motions which case law expressly holds must be renewed during trial.  Those motions are severance motions and motions under Rule 29 of the Federal Rules of Criminal Procedure for judgment of acquittal based on insufficiency of the evidence.

As to severance motions, the Ninth Circuit has stated that “[a] defendant generally waives a severance motion by failing to renew it at the close of the evidence.”  United States v. Vasquez-Velasco, 15 F.3d 833, 845 (9th Cir. 1994).  The court has added some caveats, by stating that this requirement “is not an inflexible one”; that “waiver may be absent when the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality”; and that “[t]he guiding principle is whether the defendant diligently pursued the motion.”  Id. (quoting United States v. Felix-Gutierrez, 940 F.2d 1200, 1208 (9th Cir. 1991), and United States v. Kaplan, 554 F.2d 958, 965 (9th Cir. 1977)).  But why not just avoid the inquiry by automatically renewing the motion at the close of all the evidence?  The best practice is to renew it both then and at any point during the trial where something happens that shows why severance is important.  See Kaplan, 554 F.2d at 966 (defendant who did not renew motion when witness at issue indicated he would not testify waived challenge but defendants who “pursued diligently the motion to sever, renewing it during trial at the time [the witness] refused to testify, and when the existence of the FBI form [containing allegedly exculpatory statements] became known” preserved issue).  Plus, you never know for sure; actually seeing the problem might lead the judge to change his mind.  See, e.g., United States v. Odom, 888 F.2d 1014, 1017 (4th Cir. 1989) (describing renewal of motion prior to trial, after opening statement, and several times thereafter and eventual grant of motion by district court upon “[s]eeing the storm clouds gathering”).

As to motions under Rule 29 for judgment of acquittal based on insufficiency of the evidence, there’s also a rule that the motion needs to be renewed.  It’s not enough to just make the motion at the close of the government’s case.  It has to be renewed either at the close of all the evidence or in a timely written post-trial motion filed after the verdict under Rule 29(c).  See United States v. Gonzalez, 528 F.3d 1207, 1210-11 (9th Cir. 2008).  An exception may be made when renewing the motion would be “an empty ritual,” United States v. Esquivel-Ortega, 484 F.3d 1221, 1225 (9th Cir. 2007) (quoting United States v. Pennington, 20 F.3d 593, 597 n.2 (5th Cir. 1994), and United States v. Gonzalez, 700 F.2d 196, 204 n.6 (5th Cir. 1983)), and the court of appeals will still review for plain error – and may reverse – even if it concludes the motion should have been renewed, see, e.g., United States v. Flyer, 633 F.3d 911, 917-19 (9th Cir. 2011) (finding evidence insufficient even under plain error standard); United States v. Garcia-Guizar, 160 F.3d 511, 517 (9th Cir. 1998) (same).  See also United States v. Pelisamen, 641 F.3d 399, 409 n.6 (9th Cir. 2011) (characterizing difference between the ordinary and plain error standards of review for sufficiency of evidence as “largely academic” because of deference which must be given to jury verdict in any event); United States v. Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th Cir. 1995) (opining that, because of high bar set by even ordinary sufficiency of evidence standard, “it is difficult . . . to envision a case in which the result would be different because of the application of one rather than the other of the standards”).  Still, as with the renewal of severance motions, there’s absolutely no reason not to renew the motion either orally at the close of the evidence or in writing after the verdict.  It should be on a trial checklist that you take to every trial.

For appellate attorneys, this post lays out some case law and arguments to get around a record that may not have everything you want.  For trial attorneys, it’s a reminder of what you need to do to allow the appellate attorney to make the best argument on appeal.  As a pure appellate attorney who now handles appeals where I have to rely on others’ preservation of the record, I urge all trial attorneys to err strongly on the side of caution and renew motions whenever they come to mind.  The only downside to renewing motions is being yelled at by an impatient judge.  And that’s part of what we’re here for, isn’t it?