Ask for a directed verdict due to insufficient evidence, and also object to giving an instruction on that offense due to insufficient evidence. State that if the court insists on instructing on that offense over your objection, your tendered instruction is the version that should be given. Absolutely, continue to tender written instructions. You can print at the bottom of any tendered instruction on unwanted offenses that by tendering this instruction, defendant in no way waives his objections to instructing on that offense.

Our clients have a right to the record on appeal, but the Kentucky Supreme Court has interpreted that right very narrowly. Appellate courts will provide the client’s appellate lawyer a copy of the record, but only as a loan. And since DPA does not have funds to make additional copies to send clients, our clients can only get their own personal copy of their trial record by contacting the appropriate circuit court and paying for it. Video tapes are typically $15 apiece, and the cost per page of written materials varies. Fayette County requires individuals to use a copy machine in the clerk’s office and charges 25 cents per page.

Do not discuss your client’s case with the court "off the record." It is difficult to imagine a situation in which this practice would be advantageous to your client, and very easy to imagine many situations in which it would hurt your client’s appeal due to lack of preservation. Anything important enough to talk about with the court is important enough to be on the record.

If you are somehow forced into an "off the record" conversation with the court, be sure to recount the conversation "on the record" at your earliest opportunity. Check to be sure the video tape is running, or a court reporter is present, during proceedings in chambers.

Whenever you include newspaper articles in the record, please follow these basic rules to make sure your articles 1) will not be totally disregarded, and 2) will pack the maximum punch.

Prior to copying, cut all articles to fit 8 ½ by 11 paper, even if this means using extra pages. Include the story headline, and include some indication of what page the article was on. To indicate a front page story, cut out the name of the paper from the top of page one, and include that along with the date, setting out the article underneath. Include all of the article. Always include the date.

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