In this criminal case, we consider the efficacy of “preemptive objections”—that is, objections made to an anticipated future action by opposing counsel—to preserve an issue for appeal. Defendant raised a preemptive objection prior to closing arguments, contending that the state should not be permitted to make “burden-shifting” arguments or mention related topics; he relatedly informed the trial court of relevant caselaw. The trial court engaged in a lengthy colloquy on defendants objection and largely agreed with the legal principles that he had articulated. The trial court then instructed both counsel on guidelines for closing argument; defendant neither objected to those guidelines nor indicated that he thought that the trial court had erred in its understanding of the law. The state delivered its closing argument without objection from defendant.
On appeal, defendant assigned error to a purportedly impermissible burden-shifting argument the prosecution made in closing. Defendants appellate arguments, on the one hand, argued that the trial court had erred in limiting the prosecutors closing in advance, and on the other hand, that the prosecutors closing was prohibited under the law presented to the trial court in the preemptive objection, and possibly under the trial courts ruling on the preemptive objection. A divided Court of Appeals treated defendants assignment as preserved, relying on defense counsels preemptive objection made before closing arguments, and reversed. State v. Skotland, 326 Or App 469, 470, 474-77, 533 P.3d 55 (2023). As we will explain, focusing on the practical purposes of preservation, we conclude that defendants assignment of error was not preserved. We therefore vacate the decision of the Court of Appeals and remand for that court to consider in the first instance whether the purported error that defendant identifies qualifies as plain error, and if not, to address defendants other assignment of error.
BACKGROUND
Defendant was charged with unlawful purchase of a firearm, false information in connection with the transfer of a firearm, and attempted felon in possession of a firearm. Defendant had attempted to buy a firearm; on the form required for purchase, he checked “no” to the question whether he had been convicted of a felony, but he had in fact been previously convicted of two felonies in the State of Washington.
At trial, defendant testified that he had “assumed or was hoping” that his prior felony convictions had been expunged, as he had consulted an attorney and filled out paperwork to that end. On cross-examination, defendant declined to identify the attorney, stated that he did not have the paperwork with him, and asserted that his papers at home had all been destroyed in a fire.
Prior to closing arguments, defendant made a preemptive objection to the states closing argument. As that objection was the sole basis for defendants later assertion that he had preserved the alleged error, we quote the exchange at length.
Defendant first offered his objection to any “burden shifting” argument that the state might make in closing argument, and the trial court agreed that defendant was correct:
“[DEFENSE COUNSEL]: So I do want to just make a preemptive kind of objection just to make sure were not getting into an issue that comes up during closing.
“Not that Im assuming the states going to do anything, but I see the potential that the state could be saying that[,] if the defense is going to rely [on the fact] that my client spoke to an attorney, we should be bringing in that attorney. We should bring in whatever documents for the expungement.
“*** Its the states burden. I dont have to present anything, and they cant stand up and say I should have brought stuff in[.]”
The trial court agreed with defense counsel:
“THE COURT: Oh, yeah. They cant burden shift. So I guess it would be how they make the argument, as long as its not burden-shifting, for example, like when someone doesnt testify. ‘He could have gotten on the stand and said’ you know, its like, no. No. We dont have to do anything.”
The court then added a qualification, and defendant expressly agreed that the qualification accurately stated the law:
“[THE COURT:] But he [the prosecutor] can comment on things your client did state, though.
“[DEFENSE COUNSEL]: Correct.
“THE COURT: [Defendant] did talk about—
“[DEFENSE COUNSEL]: Right.
“THE COURT: —because thats not burden-shifting because its just talking about the facts in evidence.”
(Emphases added.)
The trial court then gave defendant an opportunity to provide an example of an argument that he would find objectionable:
“[THE COURT:] Do you have more of a specific example of what that you would find objectionable of what—where [the prosecutor] might go to?
“[DEFENSE COUNSEL]: That—
“THE COURT: Because you cant unring the bell.”
Defendant did not offer any additional examples; instead, he simply restated his position:
“[DEFENSE COUNSEL]: So the idea that we should have brought in the attorney to testify as to what occurred, we should have brought it may be the expungement paperwork as evidence.
“THE COURT: Oh, right. Right. And he cant do that.
“[DEFENSE COUNSEL] He cant do that.”
The court then reiterated the prior distinction between burden-shifting and commenting on the evidence. If defendant thought at that point that the court had misunderstood his position, he did not say so:
“THE COURT: But [the prosecutor] could say things like, ‘Hey, the defendant was testifying, and he didnt say the attorneys name, and he didnt have to, but he could have if he wanted to, you know, because he was asked about that.’
“I told [defendant during trial that] you could—you can say the [attorneys] name if you want to. Im not requiring it because I cant, but you can if you want to. And he decided not to.”
The remainder of the trial courts comments were directed to the prosecutor, summarizing what was and was not permitted:
“[THE COURT]: You cant say that [defendant] should have brought in the attorney. He should have brought in expungement paperwork or whatever. Yeah. You can just talk about how—what happened on the stand—and he talked about. You said, did you have the stuff with him now—with you now, and he said no. Right?
“[PROSECUTOR]: Right, Judge.
“THE COURT: As opposed to—so its a real fine line there. Do you understand?
“[PROSECUTOR]: Yes, Judge. And I intended to say that we dont have that before us.
“THE COURT: Right, we dont. Exactly. And you can talk about that.
“[PROSECUTOR]: But Im not saying—I was not going to say that they should have or that they could have.
“THE COURT: Oh, yeah. Yeah. Yeah. Exactly. Like, ‘This guy, he could have brought this stuff in with him.’ Were just like, ‘No, no, no. Hes not required to,’ but, yeah.
“But you can talk about what he testified to and exactly—you know where that fine line is, but as long as its not burden-shifting, youll be totally fine.
“Anything else for the defense?
“[DEFENSE COUNSEL]: No.”
During closing argument, the prosecutor referred to defendants testimony about the expungement. Defense counsel did not object to those statements by counsel, although he did respond to it in his own closing. The jury convicted defendant on all three counts.
Defendant appealed. As relevant here, he contended on appeal that the trial court had erred in allowing the prosecutor to make comments in closing, discussing defendants testimony, that defendant characterized as impermissible “burden-shifting.”
1
Specifically, defendant highlighted the following statements:
“He claimed that he filled out a bunch of paperwork in the [S]tate of Washington. We dont have that paperwork here today. He claims that the paperwork was lost in a fire, or his dog ate it, or we dont know. But perhaps it doesnt exist.
“He also claims that an attorney, who he refused to name, told him that he could mark ‘no’ on the ATF form. And thats what he told officers when he was confronted.
“But, today, he said that attorney who he refuses to name told him that he needed to wait. So which is it? Was he told to wait, or *** was he told he was good to go ahead and write ‘no’?
“We dont know who that attorney is or if that attorney exists because he refuses to tell us.”
The state responded (among other things) that defendant had not preserved the error.
A majority of the Court of Appeals reversed defendants conviction. The majority concluded that defendants preemptive objection had been sufficient to preserve the issue identified on appeal and that defendant did not need to renew the objection when the prosecutors closing argument allegedly exceeded the scope of his proposed rule of law. Skotland, 326 Or App at 476-77, 533 P.3d 55. The majority then held that the prosecutors closing had in fact impermissibly shifted the burden of proof in a way that invited the jury to convict defendant for his failure to present evidence. Id. at 481, 533 P.3d 55.
Judge Kamins dissented, disagreeing with the majoritys analysis both as to preservation, and on the merits. Id. at 483, 533 P.3d 55 (Kamins, J., dissenting).
The state petitioned this court for review, which we allowed.
ANALYSIS
The parties did not raise preservation of error in their briefs to this court, instead focusing on the underlying merits of the Court of Appeals’ conclusion that the prosecutors closing argument had improperly shifted the burden of proof to defendant.
2
However, preservation is not an issue that the parties must raise for this court to consider it; an appellate court has an independent obligation to determine whether a claimed error was preserved. As we have explained in a number of cases,
“neither the states failure to raise preservation as an issue in the Court of Appeals, nor the states erroneous concession that the sanction issue had been preserved at trial, conferred authority on that court to consider defendants unpreserved claim of error.”
State v. Wyatt, 331 Or. 335, 346, 15 P.3d 22 (2000); see also Lawrence v. Oregon State Fair Council, 370 Or. 764, 770-72, 525 P.3d 464 (2023) (noting that, “[a]lthough defendant did not question preservation in the Court of Appeals, it does so here,” and proceeding to determine that the issue had been preserved); State v. Gerhardt, 360 Or. 629, 634, 385 P.3d 1049 (2016) (citing Wyatt for the proposition that “appellate courts always have [an] obligation to address preservation”).
At its heart, preservation is a doctrine rooted in practicality, not technicality. Preservation serves a number of policy purposes, but chief among them is fairness and efficiency—affording both opposing parties and trial courts a meaningful opportunity to engage an argument on its merits and avoid error at the outset. As we have previously stated:
“Preservation gives a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made, which in turn may obviate the need for an appeal.”
Peeples v. Lampert, 345 Or. 209, 219, 191 P.3d 637 (2008); see also Thompson v. Fhuere, 372 Or. 81, 102-03, 545 P.3d 1233 (2024) (to same effect).
To accomplish that goal, preservation requires a party to explain its objection clearly enough for the opposing party, and the trial court, to understand the issue and either avoid an error, or correct an error if one has occurred. See Wyatt, 331 Or. at 343, 15 P.3d 22 (explanation must be “specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted”). Ideally, this is accomplished through articulating an issue, stating a source of law, and advancing an argument. See State v. Hitz, 307 Or. 183, 188, 766 P.2d 373 (1988) (“We have previously drawn attention to the distinctions between raising an issue at trial, identifying a source for a claimed position, and making a particular argument. * * * The first ordinarily is essential, the second less so, the third least.” (Emphasis in original.)). But preservation is an inherently contextual inquiry, and it “is not something that can be explained by a neat verbal formula.” State v. Walker, 350 Or. 540, 548, 258 P.3d 1228 (2011). In some cases, a “short-hand reference” may be sufficient to preserve an issue, when “such short-hand references [are] used in a way and context that the other parties and the court would understand from that single reference the essential contours of the full argument.” State v. K. J. B., 362 Or. 777, 790, 416 P.3d 291 (2018) (internal quotation marks and citations omitted). In other instances, preservation may require a deeper explanation of the law with supporting argument.
Preemptive objections can be a useful mechanism to obtain rulings on the legality of anticipated evidence, argument, or other trial events for which an after-the-fact objection may prove ineffective at curing prejudice. In that way, a preemptive objection operates akin to a motion in limine, which we have indicated can, in some circumstances, be wise trial practice:
“The reasons for seeking pre-trial rulings are, among others, to obtain guidance on how to conduct voir dire and opening statements and, more importantly, to prevent the jury from hearing a trial scenario [that would lead to the admission of unduly prejudicial evidence] ***. If counsel must wait to make an objection and receive a ruling in front of the jury, the client could be prejudiced even though the ruling was in the clients favor. With famous legal rhetoric, Justice Cardozo addressed this problem in Shepard v. United States, 290 U.S. 96, 104, 54 S Ct 22, 78 L Ed 196 (1933), when he referred to the procedure of a judge telling a jury it may accept part of a statement but must reject other portions of it: ‘The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, not for psychoanalysts, that our rules of evidence are framed.’ ”
State v. Foster, 296 Or. 174, 183, 674 P.2d 587 (1983).
It also is possible that preemptive objections can, in the appropriate circumstance, preserve an issue for appeal. In State v. Olmstead, 310 Or. 455, 461, 800 P.2d 277 (1990), we said that, “[w]hen the trial court excludes an entire class of evidence by declaring, in advance, that it is inadmissible as a matter of law, the ruling renders a further offer futile.” Reasoning from Olmstead, consider the example of a party raising a preemptive objection about an anticipated line of closing argument, but the trial court denies that objection and suggests that such an argument would be permitted, because it disagrees with the moving party about the applicable legal requirements. If the disputed line of argument then actually occurs in closing argument, it could be appropriate for an appellate court to disregard the lack of any contemporaneous objection, given the nature of the trial courts response to the preemptive objection. In that instance, we do not foreclose the possibility that an appellate court, weighing the practical nature of preservation, might conclude that a contemporaneous objection would have been unnecessary to preserve the issue.
However, as we explain, the preemptive objection in this case did not serve the practical interests of preservation with respect to the arguments raised on appeal. When defendant first made his preemptive objection, the trial court thought that it was ruling in defendants favor. The court added that it understood the relevant legal principle relating to impermissible burden-shifting but would allow the prosecutor to make at least some form of comment on defendants testimony. Defendant did not dispute that qualification. In fact, he expressly agreed that the qualification was correct.
The trial court then invited defendant to give a specific example of a potential problematic argument. Defendant did not do so.
After that, the trial court gave the prosecutor detailed directions about what arguments could and could not be made. Defendant, again, did not tell the court that he disagreed. To the extent defendants arguments on appeal can be construed to argue that the trial court erred in limiting the scope of closing argument, an objection would have needed to occur at this point to render that argument preserved. But no such objection was made.
Finally, when the prosecutor actually addressed defendants testimony during the closing argument, defendant again did not object. At that time, the question was no longer abstract; the prosecutors actual statements were now available, and defendant—as shown by his appeal—thought that they were objectionable. To the extent defendants arguments on appeal can be construed to claim that the prosecutor had exceeded the scope of the trial courts earlier ruling, defendant could have, and should have, raised that issue and alerted the trial court. He did not.
Sometimes, the winds of preservation can be gauged by looking to the weathervane of trial court surprise: Would the trial court be taken aback to find itself reversed on this issue, for this reason? Here, the answer is yes.
That result can be seen from defendants intermediate appeal to the Court of Appeals. As explained earlier, that court reasoned that defendants preliminary objection “regarding burden shifting” had preserved an aspect of his later appellate argument that the trial courts “ruling at the outset” (in response to defendants preemptive objection) had not been “properly tailor[ed].” Skotland, 326 Or App at 475, 533 P.3d 55. Yet the record shows that the trial court thought that it had ruled in defendants favor—that is, that it had “tailored” the prosecutors upcoming closing argument in accord with defendants request. From the trial courts perspective, once the prosecutors closing argument then proceeded without objection from defendant, the Court of Appeals’ subsequent reversal would have come out of the blue; objectively, the trial court had been given no reason to think that its ruling had been controversial, contested, or exceeded.
In the absence of any objection from defendant to the trial courts ruling on his pre-closing argument preemptive objection, or any subsequent objection by defendant to the actual statements made in the prosecutors closing argument that those statements either exceeded the scope of the ruling, or exposed a flaw in that ruling, we cannot conclude that the issue here is preserved. Accordingly, the Court of Appeals should not have reached the merits of the burden-shifting issue that defendant raised on appeal. We therefore vacate the decision of the Court of Appeals.
That conclusion does not fully resolve this case, however. Defendant had alternatively argued on appeal that, even if unpreserved, the “burden-shifting” issue qualified for plain error review under ORAP 5.45(1). See, e.g., State v. Vanornum, 354 Or. 614, 629-31, 317 P.3d 889 (2013) (discussing requirements for plain error review). If the Court of Appeals were to conclude that defendant was correct about plain error review—a matter as to which we offer no opinion—then that court might reaffirm its decision on the merits. Beyond that, even if the Court of Appeals cannot reach the “burden shifting” assignments of error as plain error, the court would need to address defendants remaining assignment of error. We therefore remand to permit the Court of Appeals to address those issues in the first instance.
The decision of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for further proceedings.
FOOTNOTES
1
. Defendant made an additional assignment of error that the Court of Appeals did not reach. Skotland, 326 Or App at 470 n 1, 533 P.3d 55.
2
. The Court of Appeals’ disposition meant that neither party had an incentive to raise preservation in this court. The state sought to have the Court of Appeals’ opinion reversed on the merits, while defendant would have injured his own cause by arguing preservation.
JAMES, J.