While written in a criminal appeal, Judge Oldham’s recent concurrence about specificity in error preservation is of broad general interest; he concludes:
“[A] general declaration of ‘insufficient evidence!’ is not a meaningful objection. It challenges no particular legal error. It identifies no particular factual deficiency. It does nothing to focus the district judge’s mind on anything. It’s the litigator’s equivalent of freeing the beagles in a field that might contain truffles. Cf. del Carpio Frescas, 932 F.3d at 331 (“Judges are not like pigs, hunting for truffles buried in the record.” (quotation omitted)). Rather, if the defendant wants to preserve an insufficient-evidence challenge for de novo review, he must make a proper motion under Federal Rule of Criminal Procedure 29 and ‘specify at trial the particular basis on which acquittal is sought so that the Government and district court are provided notice.’”
United States v. Kieffer, No. 19-30225-CR (March 19, 2021). Notes: (1) A big 600Camp thanks to Jeff Levinger for drawing my attention to this case, and (2) Judge Oldham correctly notes that beagles are superior to pigs for finding truffles, as pigs tend to eat the valuable truffles after locating them.
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