It's Party Presentation Time!

You may never have heard of the party presentation rule in appellate practice, but trust me, it's an important one. It states that, except in extraordinary circumstances, a court should decide an appeal based on the issues as framed by the parties. In other words, the court shouldn't independently hunt for issues it believes may be reviewable based on the district court record, unless, say, it's an issue that implicates the court's power to adjudicate, because doing so inevitably will be viewed as the court putting its finger on the scale on behalf of one litigant or another.

Violating the party presentation rule becomes even more egregious when the appellate court not only decides an appeal based on an issue not raised by the parties, but doesn't even ask the parties to weigh in before relying on it. This disregards the adversarial system and, in criminal cases, effectively denies defendants their Sixth Amendment right to counsel.

An example of this type of violation of the party presentation rule is being addressed in a cert petition recently filed in Goudelock v. United States. Goudelock arises from a Second Circuit decision, United States v. Davis, No. 22-1172, 2025 WL 443937 (2d Cir. Feb. 10, 2025). In that case, the court rejected a jury selection issue based on its finding that the defendant could not demonstrate prejudice. However, neither party addressed prejudice, and there is precedent that at least raises a colorable issue of whether such an error is subject to harmless error analysis.

The Supreme Court has previously expressed strong disagreement with avoidance of the party presentation rule, except in extraordinary cases. In United States v. Sineneng-Smith, 590 U.S. 371 (2020), the Court vacated a Ninth Circuit decision that reversed a conviction on First Amendment overbreadth grounds. The defendant had not raised overbreadth as grounds for reversal, though the Ninth Circuit had permitted the parties to address the issue in supplemental briefs. The Supreme Court explained, "No extraordinary circumstances justified the panel's takeover of the appeal ... As earlier observed, ... a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit's radical transformation of this case goes well beyond the pale."

The Supreme Court has ordered the government to respond to the defendant's cert petition in Goudelock, indicating some level of interest in the case. The Federal Defenders and the New York Criminal Bar Association filed an amicus brief in support of the cert petition, which the undersigned has signed. We'll keep you posted.

Richard Levitt