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August 18, 2015

Preserving Justice: A Discussion of Rhode Island’s “Raise or Waive” Doctrine

By Nicholas Nybo

This article was originally published in the Roger Williams University Law Review Vol. 20:365. The current issue is available here.

Please see the printable PDF for footnotes.

“Preserving issues for appellate review is a fundamental component of appellate practice.”(1) “It is well established that ‘the ‘raise-or-waive rule’ precludes a litigant from arguing an issue on appeal that has not been articulated at trial.’”(2) The rule’s benefits can hardly be denied: “Not only does the rule serve judicial economy by encouraging resolution of issues at the trial level, it also promotes fairer and more efficient trial proceedings by providing opposing counsel with an opportunity to respond appropriately to claims raised.”(3) Furthermore, the raise or waive rule is one of appellate resource conservation, allowing courts to limit the number of issues considered to those that have been properly developed in the trial record. Nonetheless, there are consequences that result from strict enforcement of the raise or waive doctrine.

Strict adherence to the appellate preservation doctrine prevents important issues from being decided, often punishing parties (novices to the justice system) for their trial attorney’s failure.(4) “[T]his philosophy makes the availability of rights to individual citizens dependent on the skills of a particular attorney and the time that she has to devote to preparing for trial in any case.”(5) The cost-benefit analysis underlying raise or waive was best discussed by Justice Hugo Black in 1941:

Ordinarily an appellate court does not give consideration to issues not raised below. For our procedural scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of fact. This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence. . . . There may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court . . . Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.(6)

That same year, Roscoe Pound, celebrated legal commentator and former dean of Harvard Law School, criticized an overly restrictive approach to rules of appellate preservation.(7) In Pound’s opinion, “appellate review in America focused on a search for error rather than a search for justice, which resulted in an overemphasis on the content of the record.”(8) In fact, the American legal system would be without a number of its most revered principles had the United States Supreme Court rigorously adhered to the rule. The Court’s decisions in Mapp v. Ohio (incorporating the Fourth Amendment),(9) Washington v. Davis (reevaluating the equal protection standard for racial discrimination),(10) and Erie Railroad v. Tompkins (a choice of law landmark)(11) all suffered from various preservation defects.(12)

Yet and still, the aforementioned benefits of raise or waive have encouraged courts in every state to adopt some version of the rule.(13) Moreover, the rule enjoys particular importance in the Ocean State. Between January 1, 2010 and January 1, 2014, the Rhode Island Supreme Court relied on the rule in refusing to decide the merits of an issue in fifty-three cases.(14) That number represents roughly ten percent of the total cases decided by the court during that time. However, such reliance is certainly justified. The state is one of only ten without an intermediate appellate court,(15) and its five appellate justices are tied with six other states for least in the country.(16) By way of local comparison, Connecticut has seventeen appellate justices, one of which is on senior status,(17) while Massachusetts has thirty-one.(18) Of course, each additional justice results in an exponential increase in judicial resources given that an appellate justice often enjoys at least two law clerks as well as other research services. Finally, of the ten states without an intermediate appellate court, Rhode Island has the fourth highest population per appellate justice.(19) In Rhode Island, there are 210,058 residents per appellate justice.(20) In a country where judicial resources are in short supply, Rhode Island is paradigmatic.

In light of raise or waive’s competing interests, as well as the rule’s continued prevalence in Rhode Island, a discussion of the rule’s history and future is warranted. Part I of this Article will revisit the historical development of both the rule and its narrow exception in the state. Part II will discuss State v. Moten,(21) a 2013 Rhode Island Supreme Court decision representing (in this author’s humble opinion) an excessively restrictive approach to the doctrine. Finally, Part III will explore other possible approaches to appellate preservation. The Article does not advocate the abolition of the raise or waive doctrine. To allow the talented appellate bar in Rhode Island to treat the trial record as a first year torts exam, freely combing the transcript and spotting issues for the court’s consideration, would wreak havoc on the administration of appellate justice.

The Article will, however, seek clarification of the rule (and, more specifically, its increasingly vague exception) to foster a more crisp understanding of when the court will and will not consider the merits of an unpreserved, substantive argument. Such clarification should allow appellants to voluntarily abandon certain unpreserved arguments at an early stage, thus sparing resources in researching and briefing the merits of that particular argument. Of course, if the appellant abandons an issue, the opposing party can ignore both the potential preservation defects as well as the merits of the substantive argument—thereby conserving its resources. And finally, if the argument is never raised, the appellate court need not take time to justify its decision whether to decide the merits. Ultimately, clarification should yield efficiency returns at all levels of appellate practice.


Rhode Island’s raise or waive rule experienced a fairly unremarkable debut.(22) The appeal in Denison v. Foster arose from an action for trespass and ejectment.(23) At trial, the court granted the defendant’s motion for dismissal after the plaintiffs presented their testimony.(24) The plaintiffs appealed arguing, among other errors, that their right to a full and fair trial had been violated because they were “forced to trial in a hasty and discourteous manner, [and] that they were not prepared for trial.”(25) Late Rhode Island Supreme Court Chief Justice Pardon E. Tillinghast responded that “[t]he statement of evidence submitted with the papers in the case not having been presented to or allowed by the justice presiding at the trial . . . forms no part of the record, and we cannot, therefore, consider the same.”(26) While the court stated that it would not consider the claim since it had not been presented to the trial court, it also recognized that the plaintiffs “fail[ed] to show any sufficient reason for not being ready for trial” but merely relied on “bald assertions” and “general statements.”(27) The court denied and dismissed the petition for new trial.(28)

In the subsequent 120 years, the rule has thusly evolved. Appellate issues must be “preserved at trial by a specific objection, sufficiently focused so as to call the trial justice’s attention to the basis for said objection.”(29) Accordingly, “a litigant cannot raise an objection or advance a new theory on appeal if it was not raised before the trial court.”(30) The court, nevertheless, “has declined to lock the door in an unequivocal manner and has recognized the existence of a narrow exception to the ‘axiomatic’ raise or waive rule.”(31) That exception applies when “basic constitutional rights are concerned,” but “the alleged error must be more than harmless, and the exception must implicate an issue of constitutional dimension derived from a novel rule of law that could not reasonably have been known to counsel at the time of trial.”(32)

This narrow exception derives from two cases decided in 1965, State v. Dufour and State v. Mendes.(33) These appeals arose from criminal trials that occurred before June 22, 1964, the day that the United States Supreme Court decided Escobedo v. Illinois.(34) In Escobedo—an extension of Gideon v. Wainwright(35) and a precursor to Miranda v. Arizona(36)—the Court held that the Sixth Amendment required the police to inform a criminal defendant of his right to counsel and his right to remain silent once the investigation had matured from a “general inquiry” to an investigation focused on the defendant.(37) In Dufour, the defendant was suspected of possessing pornographic films and agreed to go to the police station and discuss the investigation when confronted by police officers.(38) During that discussion, the defendant confessed that he was, in fact, the owner of the films.(39) At no point did the defendant ask for counsel nor did the officers advise the defendant of his right to counsel.(40) The Rhode Island Supreme Court recognized that the defendant had neither briefed nor argued at oral argument that the confession was invalid.(41) Nevertheless, the court concluded that the police had violated the defendant’s rights under Escobedo, and the confession was suppressed.(42) Justice Joslin, in concurrence, emphasized that “[w]hen we are satisfied that a defendant’s constitutional rights have been violated in this manner in a criminal case, we are not justified in sanctioning those violations because of the defendant’s failure to observe procedural technicalities.”(43)

Five months later, the court decided State v. Mendes, an appeal from a conviction for driving to endanger resulting in death.(44) After a night of drinking, the defendant struck the victim with his vehicle and killed her.(45) The defendant was taken into custody, where tests revealed his level of intoxication, and he was subsequently held overnight.(46) The next morning, the defendant was told that the victim had died, and during the subsequent interrogation, the defendant made numerous incriminating statements.(47) Like in Dufour, the officers failed to advise the defendant of his right to remain silent or his right to counsel.(48) At trial, the defendant’s statement was introduced into evidence, and the defendant’s counsel conceded in open court that he had no objection to the introduction of the statement.(49) In fact, the defense counsel used the statement to cross-examine the police officers.(50) The majority in Mendes, however, excused the defendant’s failure to raise the objection at trial, “[b]ecause defendant’s contentions have merit, we do not believe we should compel him to seek post-conviction relief . . . The defendant has been denied due process and the conviction cannot stand.”(51) The majority determined that the defendant’s statement violated the principles in Escobedo and remanded the case to the superior court for retrial.(52)

Justice Joslin dissented in Mendes because, among other reasons, he felt that the defense counsel had waived the issue on appeal given that counsel (unlike the defense counsel in Dufour) had intentionally refused to object to the introduction of the statement.(53) “As part of his trial tactics, deliberately adopted, [defense counsel] intentionally bypassed [the contemporaneous objection] requirement. By that conduct defendant forfeited his right to assert on review that the admission of the statement violated his federal constitutional rights.”(54) Justice Joslin further emphasized the importance of defense counsel’s intentional use of the statement:

I add, however, to what I have said that my opinion would be otherwise if the requirement of contemporaneous objection were a procedural technicality having no rational relationship to a well ordered trial. If such were the case, I would not insist, nor would I have any right to on compliance at the expense of ignoring a defendant’s constitutional rights. . . . When such a procedure is intentionally disregarded by competent trial counsel, in my judgment the constitutional right, which might have been brought into issue by compliance, is waived.(55)

The exception for novel constitutional issues has developed since 1965; however, appellants who have claimed the exception over the years have not enjoyed much success. In the past twenty-five years, the court has rejected litigants’ attempts to satisfy the exception in at least fifty-seven cases.(56) A most recent example was the court’s decision in State v. Moten.(57)


Rigorous adherence to the rules of appellate preservation is particularly justified for certain substantive issues. Evidentiary rulings, for example, often invoke principles (such as conditional relevance and undue prejudice) that are intrinsically intertwined with and must be evaluated in the context of the trial. In a vacuum—without the benefit of counsels’ arguments and the trial court’s ruling on those arguments—it would be difficult for appellate justices to review an evidentiary issue with only the benefit of the “cold record.”(58) From January 1, 2010 to January 1, 2014, of the fifty-three cases wherein the court denied review of an issue pursuant to raise or waive, about one third (sixteen cases) involved evidentiary issues.(59) Moreover, Rule 30 of the Superior Court Rules of Criminal Procedure specifically mandates the preservation of objections to jury instructions.(60) During the above stated time period, the court denied review of unpreserved arguments related to jury instructions in five cases.(61) Nevertheless, there remain thirty-two other cases where the court rejected a wide variety of issues including criminal joinder,(62) adequacy of tax sale notice,(63) and the removal of probate funds.(64) Certainly, the court properly invoked raise or waive in the great majority of these cases; however at least one warrants further discussion.

In May of 2013, the Rhode Island Supreme Court released its opinion in State v. Moten, affirming the appellant’s first-degree child abuse conviction.(65) The sole issue on appeal involved the testimony of Dr. Nancy Harper, a pediatrician who examined the child’s injuries.(66) During the doctor’s testimony, she was asked about statements made to her by a colleague (an ophthalmologist) who had examined the child’s eyes.(67) The defense counsel objected, and the trial justice sustained the objection.(68) The prosecutor then asked Dr. Harper whether the ophthalmologist’s statements were necessary for Dr. Harper’s complete assessment of the child, and the doctor answered in the affirmative.(69) The prosecutor asked again about the ophthalmologist’s statements, and the defense counsel again objected; however the trial justice overruled the objection.(70) Dr. Harper testified about the ophthalmologist’s statements regarding the extensive injuries suffered by the child.(71) The defendant was convicted of first- degree child abuse and given a twenty-year prison sentence.(72)

On appeal, the defendant’s only argument was that Dr. Harper’s testimony violated the Sixth Amendment’s Confrontation Clause.(73) While the trial counsel did repeatedly object to Dr. Harper’s testimony, counsel never specifically referenced the Confrontation Clause.(74) Justice Robinson, writing for the majority, began by emphasizing that the court’s raise or waive rule “is not some sort of artificial or arbitrary Kafkaesque hurdle. Instead, the rule serves as an important guarantor of fairness and efficiency in the judicial process.”(75) The majority proceeded to recognize that the trial counsel had made a general objection to Dr. Harper’s testimony, but had not articulated the specific basis for that objection.(76) The defendant maintained that it was clear that the trial counsel’s objection was based on the Confrontation Clause; however, the majority disagreed: “In our view . . . it is equally—if not more—plausible that the prosecutor and the trial justice understood defendant’s objection to be on hearsay grounds.”(77) In support of this conclusion, Justice Robinson cited an earlier objection levied by defense counsel to the introduction of similar out of court statements made by an emergency room technician.(78) In that instance, there was a sidebar during which the attorneys and trial justice discussed Rule 803(4) of the Rhode Island Rules of Evidence, which creates a hearsay exception for out of court statements made for the purposes of medical treatment.(79) The majority relied upon this and other circumstantial evidence of the trial counsel’s intent to propound a hearsay objection to Harper’s testimony and declined to further embark upon a “journey into the mind of defense counsel, the prosecutor, or the trial justice,” which the court characterized as “a fruitless effort that brings to the fore the very purpose of the ‘raise or waive’ rule.”(80) The court then moved on to discuss the narrow exception for novel constitutional issues.(81)

The majority began its discussion of the exception by warning that “the alleged error must be more than harmless, and the exception must implicate an issue of constitutional dimension derived from a novel rule of law that could not reasonably have been known to counsel at the time of trial.”(82) The defendant’s argument focused on the reformulated Confrontation Clause analysis first announced in Crawford v. Washington, decided on March 8, 2004.(83) In Crawford, the United States Supreme Court, abandoning the framework established in Ohio v. Roberts,(84) stated that the admission of an out of court, “testimonial” statement violates the Sixth Amendment’s Confrontation Clause unless the declarant is determined to be “unavailable” and the defendant had a prior opportunity to cross-examine the declarant.(85)

While the defendant did not specifically rely on Crawford, the majority stated that such reliance would have been frivolous given that the decision was published more than two and a half years before Dr. Harper’s testimony at trial.(86) The defendant instead relied upon two more recent United States Supreme Court decisions in Melendez-Diaz v. Massachusetts(87) and Bullcoming v. New Mexico,(88) which, the defendant argued, constituted “intervening decisions” establishing a novel constitutional rule.(89) The majority rejected the argument: “Both Bullcoming and Melendez-Diaz merely apply the rule announced in Crawford. Therefore, those cases cannot be considered to have established a ‘novel constitutional rule.’”(90) The defendant desperately attempted to avoid the dreaded result by arguing that Melendez- Diaz and Bullcoming had extended the rule in Crawford from mere witness statements to neutral, scientific evidence that had not previously been considered to violate the Confrontation Clause.(91) The testimonial statements in Crawford were made by the victim to the police, whereas the testimonial statements in Melendez-Diaz and Bullcoming consisted of lab results.(92) The defendant asserted that the ophthalmologist’s statements were neutral, scientific evidence covered by Melendez-Diaz and Bullcoming, both decided after the defendant’s trial.(93) Justice Robinson remained unconvinced:

The “narrow exception” to the “raise or waive” rule applies to novel constitutional rules. It is not available when the Supreme Court applies a familiar constitutional rule to a novel fact pattern. If that were the standard, then virtually every constitutional decision of the Supreme Court would provide defendants an opportunity to take advantage of the exception. There would be nothing “narrow” about such an outcome, nor would that outcome further the rule’s purpose of “fairness and efficiency in the judicial process.”(94)

With that, the majority affirmed the defendant’s conviction.(95)

“Hindsight is always twenty-twenty—especially when afforded the benefit of almost seven years of clarifying United States Supreme Court jurisprudence.”(96) Thus began the dissenting opinion in Moten authored by Justices Flaherty and Indeglia. The two justices began by concurring with the majority’s affirmance of the conviction—given that the ophthalmologist’s statements were not testimonial—yet expressed concern over the majority’s narrowing of the raise or waive exception.(97) The dissent emphasized the United States Supreme Court’s disclaimer in Crawford: “[W]e leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”(98) The dissent continued to stress the ongoing development in this area of criminal procedure:

It was not until approximately three-and-one-half years after Moten’s trial, which took place in 2006, that the United States Supreme Court moved beyond the realm of interrogation and considered whether forensic analyses— statements much more akin to the ophthalmologist’s out- of-court statements made to Dr. Harper—were testimonial in nature and, thus, subject to exclusion under the Confrontation Clause.(99)

Justices Flaherty and Indeglia disputed the majority’s assertion that Melendez-Diaz was a mere application of Crawford, recognizing that the scope of the Confrontation Clause remained unsettled and vigorously debated in the wake of Crawford.(100)

The dissent moved on to cite Justice Anthony Kennedy’s concerns that the Crawford approach exhibited “persistent ambiguities” which were “symptomatic of a rule not amenable to sensible applications.”(101) This ambiguity had been exacerbated by the fact that, prior to Moten’s trial, the Rhode Island Supreme Court had provided sparse clarification of Crawford.(102) Justices Flaherty and Indeglia concluded with the following:

Although it cannot reasonably be disputed that the exception to our “raise or waive” rule is indeed a narrow one, we maintain that the majority effectively reads this exception out of our jurisprudence. The line between a novel rule of law and the application of a rule of law in a new context can sometimes be blurry, if not indistinguishable. We acknowledge that this is a close call, but we cannot fault defense counsel for his failure to forecast Crawford’s application to the facts.(103)

The dissent then moved on to explain why the ophthalmologist’s statements in this case were not testimonial.(104)

While the majority in Moten was particularly stringent in its interpretation of the novel constitutional issue exception, such rigidity has not always been the standard. In State v. Dennis, the appellant levied a due process challenge against Rhode Island General Laws section 11-37.1-15(a)(2), which allows the superior courts to determine the extent of witness production and cross examination necessary before a person is classified as a sex offender.(105) The Rhode Island Supreme Court acknowledged that the appellant had failed to raise the procedural due process objection to the statute at the superior court level, but chose to review the claim anyway.(106) “Although we remain unconvinced that the right to procedural due process in the Superior Court amounts to a novel rule of constitutional law . . . we shall nonetheless address defendant’s claims.”(107) It remains entirely unclear why the court—composed of the same five justices that decided Moten—agreed to rule on the merits of the appellant’s procedural due process claim in Dennis. As the court recognized, the principles underlying procedural due process rights were far from novel—having been established by the United States Supreme Court in the 1970s.(108) More importantly, the court had ruled, nearly two years earlier, on the extent to which procedural due process applies to section 11-37.1-15(a)(2).(109) Accordingly, unlike in Moten, there was hardly an interstice in this area of Rhode Island’s constitutional jurisprudence.(110)

An examination of the majority opinion in Moten (especially when juxtaposed with Dennis) reveals the subjective, unpredictable nature of Rhode Island’s raise or waive rule and, more specifically, its exception. As the dissent in Moten recognized, the distinction between a truly novel rule and the mere application of an existing rule to new facts is tenuous at best.(111) Was the United States Supreme Court’s 2012 decision in United States v. Jones—concluding that GPS tracking constitutes a search—a novel rule or an application of existing Fourth Amendment jurisprudence to a new set of facts?(112) Was Roe v. Wade a novel constitutional rule(113) or simply a new application of the right to privacy that the Court had discovered eight years earlier in Griswold v. Connecticut?(114) In a legal system predicated on the incremental extension of existing jurisprudence, divining the precise moment of conception for a particular constitutional principle is a difficult proposition.

Additionally, even if a constitutional principle can be classified as truly novel, what is the statute of limitations on novelty? The majority in Moten determined that Crawford’s novelty had expired after two and a half years.(115) That determination seems eminently reasonable; however, at what point in those two and a half years did the novelty actually expire? After the first year? After the second year? Moving forward, how do appellate litigators determine whether too much time has passed between the novel case and the underlying trial? At some point, it probably becomes easier to simply require that the novel case actually intervene the trial and appeal as occurred in State v. Mendes and State v. Dufour.(116) Simply put, the novelty standard results in a situation where both advocates as well as the court must expend significant resources while attempting to determine whether the appeal presents a novel issue or merely a novel application. This, of course, occurs before any consideration of the underlying substantive question is addressed.(117) All of this is in service of a rule which purportedly advances the efficient administration of justice.

One final concern with the ambiguous exception is the conflict that can arise between the attorney’s duty to their client and the attorney’s duty of candor to the court. In reviewing trial transcripts for error, appellate counsel will inevitably be confronted with potential preservation issues—whether the trial counsel failed to object at all or merely failed to articulate the proper basis for the objection (as was the case in Moten(118)). Arguably, affirmatively raising the defect in the topside brief is not in the appellant’s best interest. However, Rule 3.3 of the Rhode Island Rules of Professional Conduct demands an attorney’s candor to the tribunal. More specifically Rule 3.3(a)(2) states that “[a] lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”(119) “The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.”(120)

In light of this conflict, many attorneys may endeavor to shoehorn an unpreserved argument into the novel constitutional rule exception, thereby justifying his or her choice not to affirmatively alert the court of the procedural defect. The more ambiguous the exception, the more preservation defects counsel can, in good faith, justify not raising. Certainly, the odds are low that such defects escape opposing counsel, the justices, and their law clerks; however, a good faith argument that the exception applied should spare the attorney from rebuke.(121) While it may be strategically beneficial for the attorney to raise the defect in the topside brief in an attempt to “take the sting out,” (122) waiting to address the defect in the reply brief (assuming the opposing side identifies it) can be equally tempting. Ultimately, this is an internal strategic debate that the law should aspire to eliminate.(123) Both the advocates who rely upon the rule as well as the judges who must administer it would benefit from additional, objective guideposts for determining whether an unpreserved issue should be considered.


Rhode Island’s raise or waive rule is neither a statutory mandate nor a constitutional imperative; it is a prudential limitation imposed on the court by the court. Unlike personal jurisdiction or a statute of limitations, the court could abandon the doctrine (or its exception) tomorrow. In that sense, raise or waive is analogous to stare decisis. Both are self-imposed restraints on the court’s clear authority to decide a legal issue.(124) Both are historically rooted in the predictability of the law and the efficient administration of justice.(125) However, with regards to stare decisis, the United States Supreme Court has candidly provided litigants and judges with particularized circumstances where the court may depart from the doctrine.(126) Yet, in the realm of raise or waive, litigants have been left to struggle with the meaning of a “novel constitutional rule.”

In 1982, the First Circuit decided United States v. Krynicki.(127) In Krynicki, the district court dismissed stolen gun charges under the Speedy Trial Act given that the indictment was returned more than thirty days after the defendant’s arrest.(128) The government appealed and argued that, because the indictment charged the defendant with counts additional to those for which she was originally arrested, the additional counts should not have been dismissed under the Speedy Trial Act.(129) The defendant rebutted that the government had not presented that argument to the district court on the motion to dismiss.(130) Given that there was no transcript of the district court hearing, the First Circuit assumed that the government had indeed failed to raise the argument at the district court level.(131)

The three judge panel, consisting of Judges Levin Campbell, Stephen Breyer, and Raymond Pettine (sitting by designation), began by reiterating that “[t]he ordinary rule is that appellate courts will not consider issues not raised below. . . . However, appellate courts do have discretion to examine issues raised for the first time on appeal.”(132) The court identified four principles for determining whether an unpreserved issue falls within this exception: (1) whether the unpreserved issue is purely legal and no further development of the factual record is necessary to its resolution; (2) whether the party’s argument is “highly persuasive”; (3) whether the issue is almost certain to arise in future cases, and therefore, declining to decide the matter will hinder judicial economy and the fair administration of criminal justice; and (4) whether declining to reach the issue would constitute “a miscarriage of justice.”(133) The court concluded that the government’s argument satisfied these principles and decided the issue on the merits, ultimately agreeing with the government and reversing the district court’s dismissal.(134) The First Circuit has subsequently used the principles of Krynicki on multiple occasions to justify ruling on unpreserved arguments.(135)

While the second and fourth principles set out in Krynicki are admittedly no more concrete than the Rhode Island Supreme Court’s current jurisprudence, the first and third principles are objective, sensible criteria which would give appellate advocates more guidance as to whether an unpreserved argument will be heard on the merits.

One of the primary concerns underlying the raise or waive rule is that an appellate court’s knowledge of the case is strictly limited to the trial record.(136) Continually remanding matters to the trial courts for further factual findings on unpreserved issues would be an enormously unwieldy procedure. Accordingly, Krynicki’s first criterion—requiring that the unpreserved issue be purely legal with no further factual development required—is a logical limitation on the exception to raise or waive.(137) Appellate consideration of such unpreserved, purely legal issues does not deprive the opposing party “of an opportunity to introduce relevant evidence.”(138)

Yet and still, whether appellate courts are equipped to determine if additional evidence is necessary to resolve an unpreserved, legal issue has been questioned.(139) To some, the suggestion that “an appellate court can look at the record and conclude that no additional, relevant evidence could have been introduced on a completely new legal issue had the parties known it would be decisive in the case simply flies in the face of what we know about the trial process.”(140) For example, one wonders whether Moten would have met this criterion. While the dissent felt confident in deciding that the ophthalmologist’s statements were not testimonial based on the existing record,(141) certainly additional evidence regarding the precise purpose for the statements as well as the reason why the ophthalmologist was unavailable would have been helpful. On the other hand, analysis under Krynicki’s first criterion would be very similar to determining whether an issue is a question of fact, a question of law, or a mixed question of fact and law—an analysis that the Rhode Island Supreme Court performs on a regular basis.(142) If the court concludes that the appellant’s unpreserved argument implicates unresolved questions of fact, then the preservation defect should not be excused and the merits should not be considered.

However, if the issue is a purely legal question requiring no additional facts, the matter should next be reviewed in light of Krynicki’s third criterion. This criterion—requiring an issue that is almost certain to arise again—permits the court to carefully select only those unpreserved arguments that will save parties confusion on the same issues in future cases.(143) “[D]eclining to reach [a] straight-forward legal issue will neither promote judicial economy, nor aid the administration of the criminal justice system.”(144) Recall that the dissent in Moten emphasized the fact that the Rhode Island Supreme Court (prior to Moten’s trial) had “provided little guidance on the application of Crawford.”(145) If the unpreserved issue is likely to arise in future cases, the court should exercise its discretion in favor of eliminating future confusion.

The criticism of this criterion is that if “[t]here is every likelihood that the issue will be raised properly in future cases . . . the court will be able to rule on the issue without making an exception to the general rule.”(146) This criticism, of course, ignores the harm done to the litigant in the pending appeal and assumes that the trial counsel in the next case will properly raise the argument without any further guidance from the appellate court.(147) The great benefit of this criterion is that it impliedly embodies the “novelty” standard without explicitly requiring it. Reaching an unpreserved legal issue that has already been addressed by the courts on previous occasions would neither promote judicial economy nor aid the administration of the justice system. Therefore, the court may continue to consider novelty, but not be bound by it.

Far from a cure-all, Krynicki provides a modest clarification for appellate advocates and judges alike. Certainly, other paradigms abound,(148) and therefore, Krynicki is not trumpeted as the solution, but rather a solution—a humble alternative—to the current “novel constitutional rule” regime.


Simply put, the fact that the Rhode Island Supreme Court justices in Moten spent twelve well-researched, well-written pages debating the precise contours of an exception (that has existed for nearly fifty years) to a rule (that has existed for twice that long) tends to negate any claim that the doctrine faithfully serves judicial economy. Hopefully, at this point of the Article, it is clear that its intended purpose is neither to intentionally increase nor decrease the overall amount of unpreserved issues considered by the court. A stark increase, given Rhode Island’s limited appellate resources, would seriously detriment the speedy administration of justice in the state, while a stark decrease would frankly be impossible given the few unpreserved arguments that the court currently agrees to consider. The purpose of the Article is to merely suggest a modest alternative to the current novel constitutional rule exception. The purpose is to allow attorneys to spend less time considering whether to devote precious pages in their appellate briefs (and minutes at oral argument) on an unpreserved issue if the court does not intend to excuse the defect. The actual raise or waive rule—requiring an objection be made at trial to preserve the argument for appeal—is fairly simple to understand and easy to apply; one hopes that, at some point, its exception will follow suit.

About the Author

Nicholas Nybo

Nicholas Nybo is a Rhode Island attorney practicing trial and appellate litigation. He is a graduate of Roger Williams University Law School. You can find him on LinkedIn.


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