SC Risperdal Case Still Wins Award for Unpreserved Claims

In February, the South Carolina Supreme Court issued State v. Ortho-McNeil-Janssen Pharmaceuticals, pointed out nine unpreserved claims, and footnoted even more. I commented on the opinion, noting that it had the most unpreserved claims that I had ever seen in a single case. The Supreme Court issued a substituted opinion last week. It continues to be a lesson in error preservation.

More specifically, you may not

  • argue one thing at trial and argue an alternative ground on appeal. So you cannot argue lack of relevance at trial and then add hearsay or Rule 403 on appealimages
  • raise new issues in a jnov motion issues that you did not earlier raise in a motion for a directed verdict
  • raise issues without challenging a specific trial-court ruling
  • raise issues that you did not object to at trial both specifically and contemporaneously
  • make short, conclusory arguments without supporting authority.

Earlier posts cover these error preservation rules in more detail, and may be found by searching on the categories in the side bar.

Especially significant to me is the inability to argue lack of relevance at trial and then add Rule 403 on appeal. I expect that this will come up soon in one of the appeals that I am defending. I am glad that State v. Ortho-McNeil-Janssen Pharmaceuticals is there to cite.

Has anyone seen an opinion that addresses more error preservation issues?

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