Friday, February 05, 2021


 We are a legal blog, so sometimes we have to talk about legal stuff. Robed readers can take the day off and click here. 

 Commonly referred to as the contemporaneous objection rule, the rationale for its application is two-fold: 1) to require an objection at the time the error is committed to give the trial court the opportunity to correct it; and 2) to prevent a litigant from allowing an error to go unchallenged so it may be used as a tactical advantage later. 

F.B. v. State, 852 So.2d 226 (Fla.2003).

We are going to use a technical legal term here so bear with us. Bullshit

99.99% of un-objected to errors occur because the defense attorney is incompetent. They whine that they do not want to draw attention to the issue or have the jury become angry at them. So while prosecutors give closing arguments where they thunder that "a leopard doesn't change it's spots" or ridicule the defense attorneys as hired guns interested in protecting the guilty for a fee, defense lawyers sit quietly as a mouse and the error is not preserved. 

Rumpole's First Rule of Trials: OBJECT. AND OBJECT AGAIN. AND AGAIN AND AGAIN. Let us disabuse you of a notion. No defendant was ever convicted because a jury, during deliberations, all agreed that the defendant was not guilty but the defense attorney made such a pain of herself by objecting that they decided to find the defendant guilty. 

Here is the effect of not objecting to clearly improper arguments or inadmissible evidence, or sitting silently as your client's confession is introduced after litigating a motion to suppress for five days- the appellate court has to find fundamental error. 

Fundamental error has been defined that error that strikes at the heart of the verdict such that a guilty verdict cannot be obtained without the error. Let us define for you the real appellate standard for fundamental error: The Fundamental error standard cannot be reached unless the defense attorney wins Powerball AND Mega-millions in the same week...twice in the same month, but only when the month ends in R AND there are two full moons within the 30 days of the month (which is what a blue moon is). Only if all those things occur, can an appellate court find fundamental error. 

In other words, appellate courts enforce the contemporaneous objection rule to avoid the landslide of reversals if they decided the case on the error alone and not whether it was preserved. 

Is it really fair to uphold a 20, 20, 40 year or life sentence when the prosecutor engaged in misconduct, or the judge let in inadmissible evidence? Is it justice to affirm a conviction with horrific error only because of this ancient and outmoded belief that without the contemporaneous objection rule defense attorneys would sit quietly when they see error? As if judges listen to us when we complain. They don't. Our objections fall mostly on deaf and D---b ears. 

Look at the hundreds of Florida criminal cases affirmed where the appellate court writes that the error was substantial but not preserved and if only there had been an objection the defendant would have gotten a new trial. This is a pandemic that has been raging for decades with no end or vaccine in sight. 

Its been decades since appellate courts started enforcing the contemporaneous objection rule and yet idiot and untrained defense attorneys still  sit quietly while prosecutors call their clients "modern day Al Capones", etc. The reason for the rule has failed. It has not promoted defense attorneys to do their job and object. As they say in infomercials, There Must Be A Better Way!

You want to get defense attorneys to object? Suspend them for a month if the appellate court finds a substantial error was not objected to. Or fine them $1,000 per error that was not objected to.  That will bring our colleagues to their feet in a hurry. But to punish a defendant with a loss of their freedom for most of their life because they have a lawyer who was too stupid to object is to undermine the fundamental principles of a fair jury trial. It is resorting to the type of bureaucratic red-tape morass that bogged down Soviet Russia. It is technocratic adjudication with a loyalty to form over substance. It is the recognition that defendants who enter the system are on a conveyor belt of "justice" that ends with them in prison 99% of the time unless they fall off the conveyor belt by having a lawyer who objects at trial (or if they hire us). 

The contemporaneous objection rule is a shame. It is a disgrace and it is the dirty little secret of the American Legal System. 

But how do we really feel? 


Anonymous said...

I was in closing argument a few year ago in Federal court. The government had a weak case of conspiracy and possession of lots of meth. The client's name was "Angel."

The AUSA said that he was no angel and then went on to say...hey... remember when it was easy to know who the criminals were. They wore dark suits and had Italian names.

My last name is Catalano. (Bet you thought this was Paul Petruzzi) Yup... Michael Angelo Catalano. Yup... all 4 of my grandparents came from Italy. I objected and was overruled because I waited about 7 seconds to object. Really? I was speechless for the first 5 seconds. My objection was not timely is what the AUSA said.

In my closing, I told the jury about my family and how none of them were accused of any wrongdoing and how my dad and uncle fought in WW2 on our side. I told them that my uncle, Angelo, died on the beach in Normandy. I then asked the AUSA to simply apologize and just stood there looking at him. To his credit, he stood up and said he was sorry for that comment.

11-1 for not guilty. We took a plea to a federal misd. Not bad.

BTW, that prosecutor was black. Hmmmm. What was I supposed to say? Remember when........

Anonymous said...

Robert Duval gives a lesson: https://www.youtube.com/watch?v=movv92UJ36M

Brett Kavanaugh said...

I think we need a reasoned discussion without all the diatribe Rumpole. Dial it back a bit- lets have a beer and discuss this like gentlemen.

Anonymous said...

Hear hear. Now do PCA's.

Anonymous said...

Agreed. A defense attorney misses making objections so impermissible evidence/comment is allowed in and there is no remedy on appeal?! Sorry, that is simply wrong.

Anonymous said...

Hey Rump. What does “cause trouble” mean? And, who decides what is “not right, not fair”?

Rumpole said...

It is a quote from the late and great Congressman John Lewis. It is open to interpretation. For me it means fight the power. Do not accept a result merely because "that is the way we have always done things."
It meant in the past not sitting in the back of the bus; using whatever bathroom or water fountain you want; it meant that white teammates refused to eat at a place that did not serve their black teammates; Now it means not agreeing to federal sentencing guidelines because that is the law- or the subject of today's post- not agreeing that an appeal should be denied when the trial was not fair and the prosecutor committed misconduct. It means writing a blog and screaming at judges last march to close courts when going to court was jeopardizing people's health. It means, as Congressman John Lewis did multiple times when serving in Congress- getting arrested to protest a law and right a wrong.

Anonymous said...

Objection, non-responsive.

Anonymous said...

"No defendant was ever convicted because a jury, during deliberations, all agreed that the defendant was not guilty but the defense attorney made such a pain of herself by objecting that they decided to find the defendant guilty."

You know that's not how it happens. Most jurors don't say "yeah, we know the guy is totally innocent, but let's convict him anyway because his lawyer is such a prick." They think any lawyer who objects so frequently and demands so many sidebars that they can't hear doesn't want the truth to come out and is hiding behind interruptions and technicalities. They think a defendant who hires a bullying lawyer who yells at sympathetic victims is probably guilty.

Most defendants don't have the benefit of smoking gun exoneration evidence. If they're brought to trial, there's going to be some judgment call about the strength of evidence against them. And unfortunately, that judgment is sometimes corrupted by how much they do or don't like the defendant and his advocate. On rare occasions, this benefits a defendant. But most of the time, it doesn't.

Also, don't underestimate the willingness of people to harm others collaterally to get at somebody they don't like. Plenty of judges with grudges against particular lawyers have no qualms about screwing over the clients as a means of screwing over the lawyer.

Anonymous said...

Time to get rid of the exclusionary rule absent bad faith or criminal conduct.

Anonymous said...

CLE alert! The best example of a contemmporarry odjettion is in the movie Legally Blond in the video submitted to Harvard by L.

Anonymous said...


Anonymous said...

The Third DCA just weighed in on this, albeit in the context of a civil jury trial. https://www.3dca.flcourts.org/content/download/718032/opinion/191393_DC13_02102021_101834_i.pdf

Anonymous said...

I whole-heartedly agree with you, Rumpole, that lawyers should not hesitate to object, when they believe that there is a ground to do so. At one seminar at the Third DCA, I said exactly that, urging lawyers to stop worrying about pissing off the judge (in front of a courtroom full of them). I don't agree that doing away with the contemporaneous objection rule is the answer. Lawyers need to put on their big person outfits, and courteously but firmly voice objections. As well, they need to work on knowing what should be objected to, and learn how to make a non-speaking but correct objection. But even if it is only your gut that tells you an objection should be made, go with it; the legal reason may well occur to you, or the judge may sustain it without demanding a ground.
Comment at 4.32 pm is wrong. And if lawyers had more opportunities to serve on juries, they would get concrete proof (as I have) that jurors are not swayed negatively against a party by the mere fact of making objections. Just get better at it, so that your objections are sustained.