Real Talk About Reversible Error (Part III)

Brandon Bullard
September 4, 2021

Elements of Reversible Error.

This week, we’re moving into the specifics of what an appellant must prove to net relief from an appellate court. Remember from earlier posts that the appellant has the burden to prove reversible error from the record, much like the prosecution has the burden of proving guilt at trial. Criminal offenses have elements, each of which the prosecution must prove beyond a reasonable doubt to net a conviction. Failure to prove any element of an offense forecloses a guilty verdict for that offense. Reversible error too has four, interdependent elements, each of which must be proven to net a favorable judgment on appeal. An appellant’s failure to prove any element forecloses relief.

What are the elements of reversible error? I define them this way: Reversible error is a

(1)    reviewable;

(2)    provable;

(3)    violation of a legal rule that;

(4)    cognizably harmed the appellant.

You won’t find that precise definition in a case or legal treatise. But years of reading appellate courts’ opinions has led me to boil the elements down to those four. In every opinion where the appellant lost it was because of a failure to show at least one of them.

Knowing that helps me to select the claims of error that I should raise for a client. If I can’t prove a necessary element of some claim, I usually will drop that issue in favor of stronger ones. For example, say the trial court clearly violated the law in a way that made no difference to the outcome of the case or even helped my client. I won’t raise that issue because the appellate court will say that it was harmless (and therefore not a reversible error). Every rule has exceptions, though. Sometimes, I may hold onto an unprovable claim of error because it supports other, stronger claims. Say that there was enough evidence at trial to permit a conviction, but it was a close call. I may still challenge that the evidence at trial was legally insufficient because it will allow me to show why other claims of error were harmful: if the evidence was thin, every other legal error was more likely to have made a difference. The point is that I select the claims of error that alone or in combination are most likely to help my clients get relief. Weak, unprovable claims don’t do that.

Dropping weak claims helps me to make my client’s overall case stronger. Appellate courts set page or word limits on briefs, so every word or line extra that I spend on a weak argument is one that I cannot devote to a stronger one. Also, winning an appeal depends on having the appellate court trust what you say about the law and your client’s case. Appellate judges can tell good arguments from bad ones. And they’re less likely to trust you if you don’t demonstrate that you can too.

Another benefit of identifying the elements of a reversible error is that it helps to guide whether I should raise ineffective-assistance-of-trial-counsel claims between the trial and the appeal. For me, this is a question only for appeals in Georgia courts. The longstanding judicial policy in Georgia is that defendants must raise any ineffective-assistance-of-counsel claims before appeal, if the opportunity to do so exists, or else forever waive them. Glover v. State, 266 Ga. 183, 184(2), 466 S. E. 2d 659, 660–61 (1996); Ponder v. State, 260 Ga. 840, 840–41(1), 400 S. E. 2d 922, 923–24 (1991). Georgia law gives a party carte blanche to introduce new evidence. See OCGA § 5‑6‑36(a). So in Georgia, a motion for a new trial before the appeal is a defendant’s one opportunity to present trial counsel’s testimony—which is all but necessary to sustain any claim that trial counsel rendered ineffective assistance. See Gibbs v. State, 303 Ga. 681, 683–84(2), 813 S. E. 2d 393, 396 (2018); but see Wilson v. State, 277 Ga. 195, 198, 586 S. E. 2d 669, 672 (2003) (explaining that trial counsel’s testimony may not be necessary if the “‘ineffectiveness’ relates to alleged errors made during the course of the trial as shown by the transcript … [because] the record speaks for itself”) (quoting Dawson v. State, 186 Ga. App. 718, 721(6), 368 S. E. 2d 367, 370 (1988)); see, e.g., Debelbot v. State, 839 S. E. 2d 513, 516–17 (Ga. 2020) (reversing appellants’ murder convictions because trial counsel failed to object to a prosecution argument that was “obviously wrong” and an egregious misstatement of the law”) (quoting Debelbot v. State, 305 Ga. 534, 543–44, 826 S. E. 2d 129, 137 (2019)). Thus, as a practical matter, if I intend to complain in a Georgia appeal that trial counsel’s errors injured my client, I must raise those claims in a motion for a new trial before the appeal. Contrast that with federal practice, which constrains a defendant’s ability to present evidence at a motion for new trial (Fed. R. Crim. Pro. 33) and defers ineffectiveness claims to post-appellate proceedings under § 2255 (see United States v. Franklin, 694 F. 3d 1, 8 (11th Cir. 2012) (explaining that ineffectiveness claims are unreviewable on appeal unless they were “first raised before in the district court and … if there [was an] opportunity to develop a record of evidence relevant to the merits of the claim”); United States v. Patterson, 595 F. 3d 1324, 1328–29 (11th Cir. 2010) (“The preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U. S. C. § 2255 motion ‘even if the record contains some indication of deficiencies in counsel’s performance’”) (quoting Massaro v. United States, 538 U.S. 500, 504 (2003))), and you will see why, in Georgia, “motions for new trial have metastasized into all but a retrial of the entire case” (Collier v. State, 307 Ga. 363, 380, 834 S. E. 2d 769, 783 (2019) (Peterson, J., concurring specially)).

Some lawyers raise ineffectiveness claims as a matter of course because they would rather raise every conceivable claim of error and see what sticks. But for reasons I’ll discuss in later posts, ineffectiveness claims rarely stick since they’re usually unprovable. As I discussed above, unprovable claims do not help clients. They only waste time and paper that could be devoted to better claims. And I prefer to raise those claims that are likely to get my clients relief. So if I discover that the elements of an ineffectiveness claim can’t be proven, I typically drop it in favor of something that gives the client a better chance of success.

By now, you see the importance of knowing the elements of reversible error. You can’t win unless you know what you have to prove. Over the next several posts, I’ll be taking the elements of reversible error one by one to show you what they are and how they are proven. As always, this discussion is not legal advice and is too general to apply to a specific case. Still, I hope that it helps to understand how an appellate lawyer evaluates the possible claims of error in a case.