Eleventh Circuit Decision Offers Lesson on Preserving Evidentiary Points for Appeal

Yesterday's decision in United States v. LeCroy, No. 04-15597 (11th Cir. Mar. 2, 2006) (Tjoflat, Anderson, & Marcus, JJ.), offers an object lesson in preserving the record for appeal.

The criminal defendant in LeCroy wanted to present mitigating evidence at the sentencing phase, in the form of testimony from a "teaching expert" who specialized in the psychology of men who suffered sexual abuse as children. The trial court said that if the defendant did call the witness, the court would consider permitting the government to offer responsive expert testimony of its own. (The government had a sealed report in reserve for that purpose, based on a government expert's review of the defendant's medical records. It is unclear why the report remained sealed after the guilt phase, or at whose behest it was sealed in the first place.)

Ultimately, the defendant did not present the "teaching expert." But he did call two physicians who treated him for psychological issues while he was incarcerated in the 1990's. When the doctors were asked to give their opinions on the defendant's diagnosis, the prosecution objected. The judge admonished defense counsel that if the doctors' opinions were elicited, he might permit the government to offer testimony from the sealed report to rebut it. Rather than incur that risk, defense counsel backed down.

On reading this account after the fact, most attorneys will be unsurprised at the appellate result. The Eleventh Circuit held that it was presented with no appealable issue:

[Defendant] simply did not create the conflict necessary for the issue to be appealable. The defendant could have called his witnesses, had them testify, and then objected at the proper time to government rebuttal testimony that he felt was "overkill." In such case, we would have had a concrete ruling by the district court as to the scope of the rebuttal. By not calling the witnesses, however, he would force this court to speculate twice: once with regard to the content of the defense experts' testimony, and a second time about what the district court would have permitted from the government expert in rebuttal. It would be improper for this court to engage in such speculation, and thus we decline to reach the merits of this issue.

But hindsight, of course, is twenty-twenty. During trial, it can be hard to keep your eye on the appellate ball -- especially in the recurring situation where a trial judge hints broadly at what consequences may follow from counsel's evidentiary decisions but makes no actual ruling on the point. To be sure, it may often make tactical sense to take the hint and waive the issue. But that decision should be made with the risk of waiver clearly in view. As one federal district judge of our acquaintance is wont to say, the court can't call balls and strikes unless somebody first throws a pitch. Likewise, the appellate courts can't overrule the umpire, if he never had occasion to make a call in the first place.