As an appellate attorney it is helpful to constantly remind the trial attorneys how to properly preserve arguments so the courts of appeal will consider them. The first tip should be known to all but gets even seasoned attorneys coming and going.
To preserve a point for review, a proper objection must be made at the first opportunity after the matter to which the objection has been made occurs. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990) is often cited for the contemporaneous objection rule and for good reason. In Asher, the State was asking the appellant’s wife if her bedroom had a fake wall with firearms located behind the wall. The first question asked was if the wife was in possession of stolen guns in a fake wall in her home. She answered “not to my knowledge.” The State then asked her whether she had knowledge of the fake wall with guns behind it. She answered “no.” After the second question and answer trial counsel properly objected to the questions and asked for a mistrial. The judge, and Arkansas Supreme Court, found that the proper time to object was BEFORE the first question was answered.
Objections need to come out immediately. Therefore, if you miss it the first time around you have just waived your right to appeal the objectionable question or statement. So for all of us appellate attorneys out there: be quick and be correct! (or we’ll mock you behind your back)