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Preserving error in jury trials: rules to remember.

While preservation of error is important at all phases of the trial court proceeding, most unintentional waivers occur during the course of the trial itself.

An appellate court generally cannot remedy an erroneous ruling below unless the error challenged on appeal was properly preserved in the trial court. It is well established that a party seeking appellate relief or a new trial must have given the trial court an opportunity to correct the alleged error(1) The failure to do so changes, in effect, the appellate court's standard of review to the strictest standard applied--that of fundamental error. Thus, an appellate court will not review a trial court's ruling on any issue, substantive or procedural, unless the appellant can establish either that it preserved the issue in the trial court or that the issue constitutes fundamental error.(2) Since fundamental error is limited to a narrow set of circumstances, it is essential in all cases to ensure that any error occurring at the trial court level is properly preserved for appellate review.

There are different rules for preservation of error at every stage of a case. Basically, however, preservation requires that objections and arguments be made at the trial level, and that they be made with enough specificity to allow the appellate court to determine that the issue presented to it is the same one passed upon by the trial court. Absent a showing of fundamental error, the appellate court simply will not engage in review of a matter which the trial court was not given an opportunity to address.

While preservation of error is important at all phases of the trial court proceeding, most unintentional waivers occur during the course of the trial itself. The following will provide a helpful, but by no means exhaustive, list of those trial events which most frequently create questions of preservation of error on appeal.

Jury Selection Issues

* Peremptory Challenges. A party may not use peremptory challenges in a discriminatory fashion.(3) A party seeking to question the other side's use of a peremptory challenge must make a timely objection. The objection will be insufficient unless it demonstrates on the record both that the challenged persons are members of a distinct racial or gender group and that there is a strong likelihood they have been challenged solely because of their race or gender. Absent such a timely and proper objection, an opponent of a peremptory challenge may not inquire into the opposing side's motives for exercising the challenge.(4) Most cases hold that there must be a formal objection, and that simply requesting a Neil inquiry(5) or noting that the challenged juror is of a different race or gender than the objecting party is insufficient to preserve any error.(6)

* Challenges for Cause. A party can preserve an error in the denial of a challenge for cause only by 1) exhausting all his or her peremptory challenges; 2) thereafter seeking additional peremptory challenges; 3) having the request for additional challenges denied; and 4) identifying on the record which objectionable jurors he or she would excuse if granted additional challenges.(7)

* Swearing the Panel. Regardless of whether the question arises from a challenge for cause or a peremptory challenge, a voir dire issue is not preserved for appeal unless the trial lawyer again objects to the entire jury immediately before it is sworn.(8) Such objection can be made either by renewing the motion to disqualify or by accepting the jury subject to the earlier objection.

Evidentiary Issues

* Motions in Limine. A motion in limine is not sufficient to preserve an error in the admission of evidence. A contemporaneous objection must be made at the time the evidence is offered.(9) This is true regardless of whether the motion in limine was granted or denied.(10) Thus, even a party who has successfully moved in limine to exclude evidence will be powerless on appeal against a party who has violated the order in limine, unless there is a contemporaneous objection.

* Proffers of Evidence. A party objecting to the introduction of evidence cannot claim for the first time on appeal that a proffer was inadequate. The objecting party must challenge the proffer as insufficient and assert that an adequate ruling on the admissibility of the evidence cannot be made based on the proffer presented.(11)

* Specificity of Objections. In addition to being made at the proper time, an objection must be articulated with sufficient specificity to preserve the error for appellate review. An appellate court will not review an error on a ground different than that raised in the trial court.(12) Furthermore, counsel relying on a "continuing objection" should ensure that the continuing objection covers all possible aspects of the error in the relevant testimony or evidence.(13)

Closing Argument

A contemporaneous objection is required to preserve error in the argument of counsel.(14) Additionally, if the objection is sustained, a mistrial must be requested in order to preserve the issue of the improper comment by counsel.(15) The mistrial request also must be contemporaneous.(16)

Jury Instructions

Objections based on the failure to give a jury instruction must be preserved by requesting a desired instruction.(17) A party objecting to an allegedly improper instruction also must propose a proper instruction.(18) While oral requests are sometimes held sufficient to preserve an error in jury instructions, it is advisable to file written requested instructions to ensure preservation.(19) Additionally, the contemporaneous objection rule applies to jury instructions.(20) A specific contemporaneous objection must be made if the trial court gives an erroneous instruction, but is apparently not needed to preserve error in the failure to give a requested instruction.(21) An objection made after the jury has begun deliberations is too late.(22)

Sufficiency of the Evidence

The failure to make a motion for directed verdict has been held to waive sufficiency of the evidence issues on appeal.(23) There is authority under a previous version of the rules of procedure that would allow the issue to be presented on appeal as long as it was raised in a new trial motion,(24) but the safer course is to present the issue in both directed verdict and new trial motions.(25)

Directed Verdicts

A defense motion for directed verdict that is denied at the close of the plaintiff's case must be renewed at the close of all the evidence in order to preserve the denial of the motion for appellate review.(26)

Post-Trial Motions

A timely new trial motion has been held necessary to preserve issues such as sufficiency of the evidence,(27) adequacy or excessiveness of the verdict,(28) and errors in jury instructions.(29) Counsel are well-advised to ensure that post-trial motions are timely and complete.


From jury selection to post-trial motions, trial counsel must be aware of the specific procedures needed to preserve errors for appeal. Preservation of error often requires more than a mere record objection. By understanding the methods of preserving error in common trial situations before trial commences, counsel can be better prepared to ensure full and adequate appellate review for the client in the event an appeal becomes necessary.

(1) Wasden v. Seaboard Coast Line R.R. Co., 474 So. 2d 825 (Fla. 2d D.C.A. 1985), review denied, 484 So. 2d 9 (Fla. 1986).

(2) Fundamental error is limited to three classes of cases: where there is an alleged deprivation of constitutional rights; where the issue reaches into the very legality of the trial itself to the extent that a verdict could not have been obtained without the assistance of the error alleged; or where a serious question exists regarding the jurisdiction of the trial court. See Gibson v. State, 194 So. 2d 19, 20 (Fla. 2d D.C.A. 1967). Even certain constitutional violations are not severe enough to constitute fundamental error? Since fundamental error is limited to a narrow set of circumstances, it is essential in all cases to ensure that any error occurring at the trial court level is properly preserved for appellate review. See State v. Smith, 240 So. 2d 807 (Fla. 1970). See also Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970).

(3) See State v. Neil, 457 So. 2d 481 (Fla. 1984).

(4) See State v. Johans, 613 So. 2d 1319 (Fla. 1993); Windom v. State, 656 So. 2d 432 (Fla.), cert. denied, 516 U.S. 1012 (1995).

(5) State v. Nell, 457 So. 2d 481 (Fla. 1984), establishes a procedure for evaluating a party's objection to a peremptory challenge on the ground the challenge reflects racial or gender discrimination.

(6) See Rivera v. State, 670 So. 2d 1163 (Fla. 4th D.C.A. 1996) ("Your Honor, we would ask for a gender-neutral reason" held insufficient as an objection); Czaja v. State, 674 So. 2d 176 (Fla. 2d D.C.A. 1996) (failure to refer to race or discrimination invalidates objection); Pride v. State, 664 So. 2d 1114 (Fla. 3d D.C.A. 1995); Portu v. State, 651 So. 2d 791 (Fla. 3d D.C.A. 1995) (noting the juror's race on the record was held insufficient), review denied, 658 So. 2d 992 (Fla. 1995). But see Harrison v. Emanuel, 694 So. 2d 759 (Fla. 4th D.C.A. 1997) (trial court's comment that defense counsel had stricken "only black juror" was sufficient to preserve plaintiff's objection), review denied, 700 So. 2d 685 (Fla. 1997).

(7) See Hill v. State, 477 So. 2d 553 (Fla. 1985), cert. denied, 485 U.S. 993 (1988); Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990); Sebring Associates, Ltd. v. Aumann, 673 So. 2d 875 (Fla. 2d D.C.A. 1996).

(8) See Joiner v. State, 618 So. 2d 174,176 (Fla. 1993); Mitchell v. State, 620 So. 2d 1008, 1009 (Fla. 1993). Although Joiner and Mitchell involved Neil issues, this requirement applies to all jury selection issues. See Melara v. Cicione, 1998 WL 281319 (Fla. 3d D.C.A. June 3, 1998); Green v. State, 679 So. 2d 1294 (Fla. 4th D.C.A. 1996); Stripling v. State, 664 So. 2d 2, 3 (Fla. 3d D.C.A. 1995).

(9) See Esty v. State, 642 So. 2d 1074, 1078 (Fla. 1994), cert. denied, 514 U.S. 1027 (1995); Madsen, Sapp, Mena, Rodriguez & Co., P.A. v. Leaman, 686 So. 2d 780,782 (Fla. 4th D.C.A. 1997); Guthrie v. State, 637 So. 2d 35, 36 (Fla. 2d D.C.A. 1994).

(10) See Coffee v. State, 699 So. 2d 299, 300-301 (Fla. 2d D.C.A. 1997).

(11) See Orlando/Orange County Express way Auth. v. Latham, 643 So. 2d 10 (Fla. 5th D.C.A. 1994).

(12) See Metropolis Co. v. Croasdell, 199 So. 568 (Fla. 1941); Palm Beach Aviation, Inc. v. Kibildis, 423 So. 2d 1011 (Fla. 4th D.C.A. 1982). However, an appellate court can affirm a judgment or ruling if the trial court reached the correct result for an incorrect reason. See Holland v. Holland, 458 So. 2d 81, 85 (Fla. 5th D.C.A. 1984).

(13) See Reese v. Naylor, 222 So. 2d 487 (Fla. 1st D.C.A. 1969) (holding a continuing objection to a psychologist's competency to testify as to the plaintiff's mental condition was insufficient to preserve error in the psychologist's testimony regarding causation of that condition).

(14) See Taylor v. Public Health Trust of Dade County, 546 So. 2d 733 (Fla. 3d D.C.A. 1989), review denied, 557 So. 2d 867 (Fla. 1989); Bertoglio v. American Savings and Loan Ass'n, 491 So. 2d 1216 (Fla. 3d D.C.A. 1986).

(15) See Newton v. South Florida Baptist Hospital, 614 So. 2d 1195 (Fla. 2d D.C.A.), review denied, 621 So. 2d 1066 (Fla. 1993); Weise v. Repa Film International, Inc., 683 So. 2d 1128 (Fla. 4th D.C.A. 1996).

(16) See McElhaney v. Uebrich, 699 So. 2d 1033 (Fla. 4th D.C.A. 1997).

(17) See Fred Howland, Inc. v. Morris, 196 So. 472 (Fla. 1940).

(18) See Bissett v. Ply-Gem Industries, Inc., 533 F.2d 142 (5th Cir. 1976).

(19) See Jackson v. Harsco Corp., 364 So. 2d 808 (Fla. 3d D.C.A. 1978) (refusing to consider a requested instruction that was not filed in written form), cert. denied, 376 So. 2d 72 (Fla. 1979).

(20) See City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989); Squires v. State, 450 So. 2d 208 (Fla.), cert. denied, 469 U.S. 892 (1984); Castor v. State, 365 So. 2d 701 (Fla. 1978).

(21) See Luthi v. Owens-Corning Fiberglass Corp., 672 So. 2d 650 (Fla. 4th D.C.A. 1996).

(22) See Page v. Cory Corp., 347 So. 2d 817 (Fla. 3d D.C.A. 1977).

(23) See City of Miami v. Swift, 481 So. 2d 26 (Fla. 3d D.C.A. 1985), review denied, 491 So. 2d 278 (Fla. 1986); Shofner v. Giles, 579 So. 2d 861 (Fla. 4th D.C.A. 1991).

(24) See Ruth v. Sorenson, 104 So. 2d 10 (Fla. 1958).

(25) See Holstun v. Embry, 169 So. 400 (Fla. 1936); Winn & Lovett Grocery Co. v. Luke, 24 So. 2d 310 (Fla. 1946).

(26) See 6551 Collins Avenue Corp. v. Millen, 104 So. 2d 337 (Fla. 1958); Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So. 2d 1283 (Fla. 1st D.C.A.), review dismissed, 630 So. 2d 1100 (Fla. 1993).

(27) See Holstun v. Embry, 169 So. 400 (Fla. 1936); Winn & Lovett Grocery Co. v. Luke, 24 So. 2d 310 (Fla. 1946).

(28) See Cowart v. Kendall United Methodist Church, 476 So. 2d 289 (Fla. 3d D.C.A. 1985); Vega v. Cosmopolitan Mut. Ins. Co., 336 So. 2d 660 (Fla. 3d D.C.A. 1976).

(29) See Reliance Fertilizer Co. v. Davis, 169 So. 579 (Fla. 1936).

Tracy Raffles Gunn is an associate with the Tampa firm of Fowler, White, Gillen, Boggs, Villareal, and Banker, P.A. She received her J.D., summa cum laude, from Stetson University College of Law in 1993. Ms. Gunn primarily practices in the areas of appellate practice and insurance coverage litigation, and has published articles and presented seminars on numerous issues in her areas of expertise.

This article is submitted on behalf of the Appellate Practice and Advocacy Section, Roy D. Wasson, chair, and Jacqueline E. Shapiro, editor.
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Title Annotation:Florida
Author:Gunn, Tracy Raffles
Publication:Florida Bar Journal
Date:Oct 1, 1998
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