Tuesday, July 8, 2014

Procedural Bar

Unfortunately, I get hired many times as damage control after a case as gotten way off track for whatever reason.  Sometimes I get hired post-trial for appeal purposes and have been hired once in the middle of trial. When a case goes up on appeal, you have to be aware of the procedural bar if an issue is not raised in the trial court.  This is based on the idea that the trial court has to have a chance to address the issue first.  However, does that prevent you from addressing a new argument regarding an issue that was raised at the trial court?  The answer seems to be no.

“It is well settled Mississippi law that there is a procedural bar to considering issues not first raised at trial.  Scott v. State, 878 So.2d 933, 963 (Miss.2004) (citing Williams v. State, 684 So.2d 1179, 1203 (Miss.1996)). However, this procedural bar clearly applies only to an issue never raised below, which is not the same as a different argument pertaining to the same issue.” Brown v. Thompson, 927 So. 2d 733, 738 (Miss. 2006).  This can be a very fine line issue.  It is better to overkill on a motion for a new trial but this authority can be helpful if not.  

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