Do I Have to Raise It Below? Preservation of Error and Why It Matters on Appeal

One question often decides whether an appeal gets off the ground: Did you raise the issue in the trial court? If not, the appellate court may never reach the merits. This installment of Asked and Answered: Appellate Tips explains Connecticut’s preservation rule—and how to protect your appellate rights.

What is Preservation of Error?

Connecticut’s rule appears in Practice Book § 60-5: an appellate court “shall not be bound to consider a claim unless it was distinctly raised at the trial or unless it arose subsequent to the trial.” In other words, give the trial court a fair chance to address the issue before asking the appellate court to review it.

The rule promotes fairness and efficiency: it gives the trial court time to correct an error and puts the other side on notice. As the Supreme Court explained, these requirements “alert the trial court to potential error while there is still time for the court to act.” State v. Cabral, 275 Conn. 514, 531 (2005).

What Does it Mean to “Raise” an Issue Below?

“Raise” means more than mentioning an issue somewhere in the record. Your objection or argument must give the court and opposing counsel a fair opportunity to understand and address it.

Effective preservation generally requires four things. Be timely—raise the issue when the court can act, not for the first time after trial. Be specific—identify the claimed error; “I object” may not be enough. Use the right vehicle, such as a motion in limine, evidentiary objection, brief, or requested jury instruction. Finally, obtain a ruling; if the court does not rule, ask it to do so.

What Happens if You Don’t Preserve the Issue?

If an issue was not preserved, the appellate court will likely decline to review it. In Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 164 (2014), the Supreme Court confirmed that an appellate court need not consider an unpreserved claim—a rule that can be dispositive in civil and criminal cases.

Are There Any Exceptions to the Preservation Rule?

Yes—but they are narrow. Think of them as safety nets, not a litigation strategy.

The Golding Doctrine (Unpreserved Constitutional Claims)

In State v. Golding, 213 Conn. 233, 239-40 (1989), the Supreme Court created a four-prong test for unpreserved constitutional claims. A defendant must show:

1. The record is adequate to review the claim;
2. The claim is of constitutional magnitude and alleges a violation of a fundamental right;
3. The violation exists and deprived the defendant of a fair trial; and
4. If harmless-error analysis applies, the state has not shown the error harmless beyond a reasonable doubt.

The Plain Error Doctrine

Practice Book § 60-5 also permits a court, “in the interests of justice [to] notice plain error not brought to the attention of the trial court.” Plain error is reserved for obvious errors that undermine the fairness, integrity, or public confidence in the proceedings. Courts invoke it sparingly. See, e.g., State v. Elson, 311 Conn. 726, 786 (2014).

Subject Matter Jurisdiction

Subject matter jurisdiction is different because it concerns the court’s authority to hear a case. It can be raised at any time, including for the first time on appeal. See, e.g., Ajadi v. Commissioner of Correction, 280 Conn. 514, 532–33 (2006). This exception does not apply to ordinary appellate issues.

New Arguments Versus New Claims

A new claim is a new legal issue; a new argument is a different reason supporting a claim already raised. In Markley v. State Elections Enforcement Commission, 339 Conn. 96, 104-05 n.9 (2021), the Supreme Court explained that preservation rules generally apply to claims, not arguments. An appellate court may consider a new argument if it is subsumed within or intertwined with the preserved claim. The line is narrow.

So What Can I Do? Practical Tips for Preserving Your Appellate Rights

Here are practical ways to protect the record:

• Object early and specifically. State the legal basis on the record.
• Make a clear record. Confirm the ruling and the basis for your objection; ask the court to clarify any ambiguity.
• Request written rulings when possible. They clarify what the court decided and why.
• Make an offer of proof when evidence is excluded. Preserve what the evidence would have shown.
• Brief important issues at trial. If you may appeal it, give the trial court the analysis now.
• Do not assume constitutional issues get a pass. Golding is narrow and demanding.
• Consult appellate counsel early. Real-time advice can help identify and preserve issues.

Takeaways

Bottom line: raise the issue clearly and on time, use the right vehicle, and secure a ruling. The exceptions are narrow, so build the record with an appeal in mind. Questions about Connecticut appellate practice? Our appellate team is here to help.