Executive Summary
There are several things that an attorney can do to ensure that an error is preserved for appeal. Making timely and specific objections and obtaining an explicit ruling from the judge on such objections can ensure that a matter is preserved. If evidence is excluded, the attorney should make offers of proof through questioning the witness outside of the jury’s presence or by providing a detailed attorney statement on the record. Filing and renewing motions in limine can also help with error preservation. An attorney can preserve errors with jury instructions by writing their own written instructions, proposing them to the court, and properly objecting to the improper instructions before the jury retires. While issues with sufficiency of evidence can be reviewed on appeal even if they are not raised at trial, it is a good idea to raise such issues as early as possible. It is also important to raise constitutional issues as early and as explicitly as possible. Attorneys can also use post-trial motions, such as a Trial Rule 59 Motion to Correct Errors or a Trial Rule 50 Motion for Judgment on the Evidence, strategically to ensure errors are preserved for appeal.
Why Error Preservation Matters in Indiana
Indiana appellate courts adhere strictly to waiver rules. If an issue is not timely raised, specifically objected to, or properly supported in the record, the Court of Appeals or Indiana Supreme Court will often decline to review it.
Even strong arguments can be forfeited without a clean record. While Indiana recognizes “fundamental error” in rare cases, courts apply that doctrine sparingly, meaning counsel should never rely on it.
Indiana Trial Counsel Checklist: Preserving Error for Appeal
1. Make Timely and Specific Objections
- Object immediately when an issue arises.
- Use clear, specific grounds (e.g., hearsay, relevance, unfair prejudice).
- Avoid vague objections such as “improper” or “irrelevant” without explanation.
Tip: If the legal basis changes, renew or refine your objection to match the argument you want to preserve.
2. Obtain a Ruling on the Record
- Always ensure the judge explicitly rules on your objection.
- If the court does not rule, politely request clarification.
Without a ruling, there is nothing for the appellate court to review.
3. Make Offers of Proof (Proffers)
If evidence is excluded:
- Make an offer of proof showing what the evidence would have been.
- This can be done through:
- Questioning the witness outside the jury’s presence
- A detailed attorney statement on the record
Why it matters: Without a proffer, appellate courts cannot assess whether the exclusion was harmful.
4. File and Renew Motions in Limine Properly
- A motion in limine does not preserve error by itself.
- You must:
- Object when the evidence is introduced at trial
- Renew the objection in real time
Failing to object at trial = waiver, even if you won pretrial.
5. Preserve Jury Instruction Issues
To preserve instructional errors:
- Tender your own written instructions
- Object to improper instructions before the jury retires
- State specific grounds for objection
Be sure the record reflects both:
- The instruction you proposed
- The instruction that was given/refused
6. Challenge Sufficiency of Evidence (When Required)
Civil Cases:
- Issues are generally preserved through normal trial process
Criminal Cases:
- Consider:
- Motion for directed verdict (judgment on the evidence)
- Specific argument identifying gaps in evidence
Note: Certain sufficiency arguments may still be reviewed on appeal even if not raised, but best practice is to raise them clearly.
7. Preserve Constitutional Claims Explicitly
- Raise constitutional issues as early as possible
- Identify:
- The specific constitutional provision
- The precise legal theory
General references are insufficient. Indiana courts require specificity.
8. Object to Prosecutorial Misconduct or Improper Argument
- Object during closing argument or improper questioning
- Request:
- Admonishment to the jury
- Mistrial if necessary
Failing to object contemporaneously likely waives the issue.
9. Use Post-Trial Motions Strategically
Post-trial motions can strengthen preservation:
- Motion to Correct Error (Ind. Trial Rule 59)
- Required in some situations
- Helpful to clarify and expand issues
- Motion for Judgment on the Evidence (TR 50)
While not always mandatory, post-trial motions can refine issues for appeal.
10. Ensure a Complete and Accurate Record
- Confirm:
- All exhibits are admitted or properly marked
- Transcripts reflect objections and rulings
- Sidebars and off-record discussions are memorialized if necessary
If it’s not in the record, it does not exist on appeal.
Common Pitfalls That Lead to Waiver
- Failing to object until after the evidence is admitted
- Making general objections without legal grounds
- Assuming a motion in limine preserves the issue
- Not making an offer of proof
- Raising a new argument on appeal that was not raised at trial
Practical Tips for Indiana Trial Lawyers
- Think appellate from day one: Build your record strategically
- Use checklists in trial binders for objections and preservation
- Assign a team member to track preservation issues in complex trials
- Err on the side of over-preserving—it’s better than waiver
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If you need legal guidance tailored to your circumstances, the attorneys of Dixon & Moseley, P.C. can help you navigate every stage of the appeal process. This blog post is written by Dixon & Moseley, P.C. advocates. This blog is not intended as specific legal advice or a solicitation for services. It is an advertisement