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?