The Law Office of Joseph Moreno

Federal and State Criminal Defense



Posted on October 18, 2018 at 3:25 PM
Many criminal defense trial lawyers do not handle appellate work. I believe that appellate work goes hand-in-hand with trial work for many reasons. Without any particular order to the importance of these factors I will say that when attorneys are in trial, they are speaking to multiple audiences. The jury needs to hear your case and understand why your client should be found Not Guilty. The judge needs to hear your arguments and understand why any objections made should be resolved in your favor. Just as importantly, every trial proceeding is recorded. The record needs to accurately reflect the precise nature of any objections you make, the legal underpinnings of your objections, and the authority on which you are relying for your objections. Trial attorneys need to be aware that the record is just as important as every other facet of the case. In order to properly make these objections, then, and to properly preserve error for appellate review, if it should become necessary, trial attorneys need to be able to function with an appellate mind frame as well as a trial mind frame. Some attorneys argue that they don't do appellate work because if they try a case and lose, then the defendant may need to make an appellate arguement that the trial attorney was ineffective. The problem with that is that ineffective assistance of counsel claims are rarely successful on direct appeal. The reason for that is that in order to show that their trial counsel was ineffective in his or her representation of a defendant, the appellant needs to show, on the record, that the short comings were in fact "failures and omissions" that fell below the prevailing professional norms and not merely a result of trial strategy. A majority of the time, the record will be devoid of such information. Issues of ineffective assistance of counsel are usually reserved for Post Conviction Writs of Habeas Corpus. Another means of alleging ineffective assistance of counsel is a Motion for New Trial where the defect in representation was immediately apparent to the defendant and raised with new counsel within the time frame for filing a Motion for New Trial. If a hearing is granted, then the attorney can be directly asked about his or her tactics and questions about failures or omissions can be addressed on the record. Again, an important factor to proving ineffective assistance of counsel is an actual record indicating that the failures were not simply part of the attorney's trial strategy. It seems that the benefits of being the trial attorney and the appellate attorney are that as trial counsel, I know what happened at trial; I know what the legal arguments are before I even receive and review the record; and I already know which objections are the ones I need to rely on to continue to fight the good fight.

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