CrimLaw

In response to the previous post about how to appeal a standard in the appellate courts I've recieved insight from an old friend:

I think the answer is that you simply raise the issue in the "standard of review" section of your brief. Presumably, your notice of appeal will be the standard, broad one that states that the defendant appeals the sentence (or conviction + sentence). I would think this is like other issues that are simply part and parcel of an appeal, and could never be preserved (and would never need to be) at trial level. For instance, if someone tried to improperly file an interlocutory appeal, you would argue that the appellate court had no jurisdiction--you hadn't argued that below, but you hadn't needed to, either. I think that you should probably also put it in the "issues raised" or "questions presented" section in order to flag it for the Court.

This was backed up by by George Wallace

If I understand your question correctly, you are wondering what needs to be done at the trial level to preserve your right to question (on constitutional grounds) a legislatively dictated standard of appellate review. Since the appellate court always has the primary power and obligation to determine what standard it should apply (and to determine its own jurisdiction in the first place), it seems to me that all that needs to be preserved in the trial court is the substantive question that you want to have reviewed. Then, on appeal, you can raise the issue of the applicable standard of review for the first time, saying to the court: “This statute tells us that the standard of review that you [the appellate court] are to apply is standard X. However, that statute is unconstitutional for these reasons . . . so you should instead review this question by applying standard Y.”

I’ll admit I’ve never run into exactly this problem, but the approach outlined above is consistent with the usual principles of appellate practice as I’m familiar with them.

They make sense to me. If anyone has a different viewpoint or has actually dealt with a similar issue feel free to drop a line.