Proceed with Caution: Preserving Arguments in Criminal Appeals

In general, to preserve an objection or argument for appeal, you need to be specific. It won’t do to just blurt out, like Elle Woods in the film Legally Blonde, “I object!” Rather, in both civil and criminal cases, the federal rules require a party to state “the grounds” for an objection. See Fed. R. Crim. P. 51(b); Fed. R. Civ. P. 46.

That specificity requirement ensures that the district court will have a fair opportunity to decide the issue in the first instance. And that keeps appellate courts in their lane—reviewing decisions, not making them.

But with motions for judgment of acquittal in criminal cases, specificity doesn’t always pay. Such post-trial motions are brought under Federal Rule of Criminal Procedure 29. Rule 29 makes no mention of “the grounds” for the motion, and the courts of appeals have read no such specificity requirement into the rule. Far from it, the circuits have coalesced around an entirely counterintuitive rule: A general Rule 29 motion—one that, for example, simply says, “the evidence is insufficient”—preserves all possible sufficiency arguments, but a motion that raises specific arguments forfeits all arguments not specifically raised.

This rule forces criminal defense attorneys to pick their poison, as it were. Keep it general, and you preserve all possible arguments for appeal, but if you aren’t specific, the district court may not have what it needs to give your Rule 29 motion a fair shake.

Change may be coming. In a recent decision, United States v. Sorensen, No. 24-1557, 2025 WL 1099080, at *3 (7th Cir. Apr. 14, 2025), the Seventh Circuit discussed the “perverse incentives” the rule creates and cast doubt on its continued vitality. And a recent Fifth Circuit concurrence discoursed extensively on the rule’s “disturbing” implications, noting that defendants who fail properly and specifically to alert the district court to their objections hit the “appellate jackpot: By objecting to nothing in particular, the defendants preserve[ ] everything in general.” United States v. Kieffer, 991 F.3d 630, 637–41 (5th Cir. 2021) (Oldham, J., concurring).

At least three circuits have developed workarounds that help diminish the rule’s seemingly unjust effects: If you file both a general Rule 29 motion and one that raises specific arguments, the general motion trumps the specific, preserving all unraised arguments for appellate review. At least in the First, Seventh, and D.C. Circuits, you can have your cake and eat it too. See United States v. Facteau, 89 F.4th 1, 39 n.26 (1st Cir. 2023); Sorensen, 2025 WL 1099080, at *3; United States v. Hammoude, 51 F.3d 288, 291 (D.C. Cir. 1995).

But those workarounds remain the exception, not the rule. And, in any event, they do not help the dedicated (and logical) attorney who makes only specific arguments in the district court and is then penalized on appeal for not just blurting out, “I object!”

At least for the time being, therefore, criminal defense attorneys must proceed with caution. Unless you are in the First, Seventh, or D.C. Circuit—where you should file both general and specific Rule 29 motions—you have only two choices:

1. If you think your best chance of acquittal is in the district court, give the district court a fair opportunity to decide by making specific arguments in support of your Rule 29 motion.
2. If you think your best chance is in the court of appeals, keep your Rule 29 motion general.