An appeal can only be as strong as the trial record. A Missouri appellate court reviews what happened in the trial court, on paper, and the first question it asks about any claimed error is whether it was preserved. If it was not, even an issue that would have won is usually reviewed under a standard that almost never results in relief.
Most preservation failures are not exotic. They happen in ordinary moments at trial, and they tend to be the same few mistakes. This is written for defendants and families trying to understand an appeal, and for trial lawyers who want to protect the record while there is still time to do it.
Why it matters
What happens if an issue is not preserved for appeal in Missouri?
The appellate court can review it only for plain error under Rule 30.20, and only in its discretion.
Preserved
The court reviews the ruling under the ordinary standard for that type of issue. The question is whether the trial court erred and whether the error affected the outcome.
Not preserved
Relief requires an error that is evident, obvious, and clear, and that resulted in manifest injustice or a miscarriage of justice. That is a much harder showing, and most plain error claims fail. In practice, an unpreserved issue is a winning issue that can no longer be argued the strong way.
The first failure
Is “objection” enough to preserve an issue?
Usually not. The objection has to state its grounds, and those grounds, along with the ruling, have to be on the record.
State the reason
An objection that does not say why it is being made gives the trial judge nothing to rule on and the appellate court nothing to review. The reason given at trial is also generally the only reason that can be argued on appeal. A hearsay objection at trial does not preserve a Confrontation Clause argument on appeal.
Make sure it is recorded
Arguments at the bench and in chambers are often not transcribed unless someone asks. If an objection is argued off the record and overruled, the appellate court may see only the word “overruled.” Ask for the conference to be on the record, or make a record of it immediately afterward.
When evidence is excluded, the record also has to show what the evidence would have been. That is an offer of proof. Without one, the appellate court cannot tell whether excluding it mattered.
The second failure
What has to be in a motion for new trial in Missouri?
In a jury trial, every claimed error you want reviewed on appeal, with three narrow exceptions.
Rule 29.11(d) provides that in jury-tried cases, allegations of error to be preserved for appellate review must be included in a motion for new trial. The only exceptions are the court’s jurisdiction over the offense, whether the charging document states an offense, and the sufficiency of the evidence. Everything else, including evidentiary rulings, instructions, jury selection, and closing argument, has to be in the motion.
The motion is due within 15 days after the verdict under Rule 29.11(b), and the court can grant one extension of up to 10 more days if the request is made within the original 15. A motion filed late preserves nothing.
- Leaving an issue out of the motion is the most common way a properly objected-to error is lost.
- Being too general is the second. “The court erred in admitting evidence” does not tell the court which ruling or why.
- Missing the deadline is the third, and it cannot be fixed afterward.
The third failure
Does a pretrial motion to suppress preserve the issue for appeal?
Not by itself. A ruling on a motion to suppress is interlocutory, which means the trial court can revisit it, and Missouri appellate courts require the issue to be raised again at trial.
Raise it properly before trial
Some issues have to be raised by pretrial motion, and the motion has to identify the specific grounds. A suppression motion that challenges the stop does not preserve a challenge to the later search unless it raises both.
Object again when the evidence comes in
When the State offers the evidence at trial, the defense has to object on the same grounds, or ask for a continuing objection on the record. Then the issue goes in the motion for new trial.
Losing a suppression motion before trial is not the end of the issue. Failing to renew it at trial often is.
After the fact
What if my trial lawyer failed to preserve an issue?
The direct appeal can still argue it as plain error, but the stronger path may be post-conviction relief.
Failing to object or to include an issue in the motion for new trial can be the basis of an ineffective assistance of counsel claim in a Rule 29.15 motion. That claim requires showing both that the failure fell below the standard of reasonable counsel and that it affected the outcome. It is not automatic, and the deadlines are strict.
See ineffective assistance of counsel in Missouri for how those claims work.
For trial lawyers
How do you protect the record before trial starts?
- File specific pretrial motions that name each ground you intend to rely on.
- Plan your objections to the evidence you expect, so the grounds are ready when the evidence is offered.
- Insist on a record of every bench conference and every ruling.
- Make offers of proof whenever defense evidence is excluded.
- Calendar the motion for new trial from the day of the verdict, and draft it from your trial notes, not from memory.
We work with trial lawyers as appellate co-counsel, including help preserving the record during trial and drafting the motion for new trial. Your client stays your client. See for attorneys.
Answers
Preservation questions we hear
What does it mean to preserve an issue for appeal?
It means raising the issue in the trial court at the right time and in the right way, usually by a specific objection on the record and, after a jury trial, by including it in the motion for new trial, so the appellate court will review it under the ordinary standard.
Can an unpreserved issue still be raised on appeal in Missouri?
Only as plain error under Rule 30.20, which the appellate court reviews in its discretion. Relief requires an evident, obvious, and clear error that resulted in manifest injustice or a miscarriage of justice, which is rarely found.
What issues do not need to be in a motion for new trial?
Under Rule 29.11(d), only three: the court’s jurisdiction over the offense, whether the indictment or information states an offense, and the sufficiency of the evidence to sustain the conviction.
How long do you have to file a motion for new trial in Missouri?
Fifteen days after the verdict. The court may grant one extension of up to ten additional days if the request is made within the original fifteen days and good cause is shown.
Do I need a motion for new trial after a bench trial?
No. In a case tried without a jury, a motion for new trial is not required to preserve issues. If one is filed, though, the errors to be preserved should be included in it.
Is losing a motion to suppress enough to appeal the search?
No. The defense must also object when the evidence is offered at trial, on the same grounds, and include the issue in the motion for new trial.
In federal sentencing, the same rule applies to objections. See the federal presentence report.
For the issues an appeal can reach once they are preserved, see what can be raised on a criminal appeal in Missouri, or our direct appeals page.
Talk to us
The record is built at trial. Start there.
If a trial is coming, or a verdict has just come in and the motion for new trial clock is running, call now rather than after the deadline.
Attorney advertising. The choice of a lawyer is an important decision and should not be based solely upon advertisements. This article is general information about Missouri law, not legal advice, and it does not create an attorney-client relationship. Preservation requirements depend on the type of issue and the procedural history of the case.
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