Appellate Review of Unpreserved Questions in Criminal Cases: An Attempt to Define the Interest of Justice

I. INTRODUCTION As a general rule, an appellate court can consider a claim on appeal only if the appellant properly preserved it in the court below. A claim or issue is preserved if it was presented to the lower court at the proper time and with sufficient specificity so that the trial court had an opportunity to correct the alleged error at the time it was made. Preservation is thus accomplished by a simple, timely on-the-record "objection" along with a brief explanation of its basis. Ordinarily, a court will not grant relief on a claim that is presented for the first time on appeal. Preservation serves important purposes. A timely and specific objection alerts the trial court and the adversary to the alleged error, giving both an opportunity to correct the problem or take ameliorative action, thus potentially obviating the need to raise the issue on appeal. It thus encourages truth-seeking, the efficient resolution of the case, and the conservation of appellate resources. Preservation also discourages gamesmanship by preventing a party from saving a "trump card" argument until appeal. However, preservation is not without its costs, particularly to a criminal defendant. When an attorney unwittingly fails to preserve an argument, his or her client may serve a potentially lengthy sentence even though an otherwise viable claim for a new trial may appear on the record. In recognition of this dilemma, some legislatures and courts have crafted a narrow exception to the preservation requirement. In limited circumstances, an appellate court may consider an unpreserved question even though no objection or other protest was made to the trial court. This article will consider the approaches taken by the federal courts and New York state in this area. On their face, the approaches seem very different. The federal rule is detailed, specific, and structured. New York, on the other hand, simply directs its intermediate appellate courts to consider unpreserved questions if doing so is "in the interest of justice." Despite these apparent differences, the rules are actually quite similar in practice. In the federal system, the Court of Appeals or Supreme Court can notice an unpreserved issue if it constitutes a "plain error." Decades of Supreme Court precedent have resulted in a four-part test to determine whether an error qualifies as "plain." Ultimately, however, the plain error rule is unsatisfactory for two reasons. First, one aspect of the test boils down to whether the defendant can show prejudice by the failure to preserve the claim. In other words, the defendant must demonstrate a successful appellate claim in order to overcome the preservation hurdle. Thus, preservation is fairly meaningless. If the defendant has a winning argument on the merits, the court will dispense with preservation. If, on the other hand, the defendant's claim would fail anyway, the court will apply preservation to bar the claim. The result, either way, is that the court is looking beyond the failure to preserve and analyzing the merits of the claim, creating exactly the type of inefficiency that preservation is designed to avoid. Second, the federal rule is problematic because it provides discretion to the appellate court to determine, notwithstanding the presence of a prejudicial error, whether a "miscarriage of justice" would result if the plain error rule was not applied. Yet, the courts have not provided a workable definition of "miscarriage of justice," except most agree that the plain error rule should be used to free an innocent person. New York has a similarly unworkable rule. In New York, only intermediate appellate courts--typically, the Appellate Division of the Supreme Court--can decide unpreserved questions. Statutory authority provides that they may do so only in the "interest of justice." No further guidance or explanation about this ambiguous term is provided by statutes or case law. …