Georgia Appeals Law Guide / Appellate Law Treatise

Preservation of Error

A party usually cannot argue on appeal that a lower court’s decision was wrong unless the party made the same argument to the lower court. The appellant “preserves the error” by first making the argument to the lower court. For example, if a party argues on appeal that the trial court erred by admitting testimony at trial, the party has preserved the error if the party made the same argument at trial before the testimony was admitted.

The rule requiring preservation of error conserves resources by compelling parties to raise possible errors early, while the trial court may still be able to correct them. If there were no preservation of error requirement, parties would have an incentive in some cases to remain quiet about possible errors, wait to see the outcome of the case, and then raise the error only if the case were decided against them.

Evidentiary objections

The Georgia Supreme Court summarized the preservation of error rule with respect to evidentiary objections this way: “Standard practice in Georgia has long required a party to make and obtain a ruling on an objection to evidence in the trial court, before or as the evidence is admitted, in order to preserve the objection for appeal, and standard practice also allows parties to raise on appeal only the same objections that were properly preserved below.” Whitehead v. State, 287 Ga. 242 (695 SE2d 255, 259) (2010) (citation omitted).

Repetitive objections

An objection made and ruled on in a pre-trial proceeding need not be reasserted at trial to be preserved. In Whitehead, the Georgia Supreme Court overturned earlier cases requiring the defendant in a criminal case to repeat at trial an objection to similar transactions evidence already made pre-trial. Id.

Specific

To preserve error, an evidentiary objection must be sufficiently specific to enable the trial court to effectively rule on it. “When the specific ground of objection is not made at the time the evidence is offered, the failure to do so amounts to a waiver of that specific ground.” Johnson v. State, 287 Ga. App. 533, 534 (652 SE2d 179) (2007). In Johnson, for example, the defendant’s trial counsel said, during questioning of the defendant’s accomplice, “I guess I’m trying to wonder where [the prosecutor] is going. The witness says he doesn’t want to testify so is he trying to . . . impeach[] him or what is he doing[?] I don’t know.” Id. The Georgia Court of Appeals held this language was insufficiently specific to preserve the argument that the trial court should not have allowed the accomplice to be questioned after he stated that he did not want to testify. Id. See also Maxwell v. State, 267 Ga. App. 227 (599 SE2d 228, 230) (2004) (“To preserve a ground for error, the objecting party must state the specific ground upon which the objection is based; the objecting party must do more than merely state that he objects. The generalized objection made here was insufficient to notify the trial court of the legal ground so that its applicability could be measured and error avoided.”).

Timely

To preserve error, the party challenging the lower court’s decision must have presented the error at a time when the lower court could reasonably correct it. Evidentiary objections must be made before or at the time the evidence is admitted. See Johnson v. State, 292 Ga. 785, 787 (741 SE2d 627) (2013). “The purpose of requiring a timely objection is to avoid placing improper information before the jury. Removing from a jury’s consideration evidence it has heard is difficult at best and well nigh impossible after it has had time to sink in.” Id. (quoting Martin v. State, 281 Ga. 778, 780(2) (642 SE2d 837) (2007)).

Constitutional challenges to appellate procedure

Generally, constitutional challenges to statutes must be raised in the trial court to be asserted on appeal. However, constitutional challenges to appellate procedure statutes need not be brought until appeal, because they could not reasonably be raised in the trial court. See In re A.C., 285 Ga. 829 (686 SE2d 635, 638) (2009).

Plain error

There is an exception to the preservation of error requirement for “plain error.” Plain error, by definition, is error that can be asserted on appeal even if not preserved in the trial court.

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