Concept of "Waiver" Popular These Days
U.S. v. Taylor, --- F.3d ----, 2008 WL 224055 (10th Cir. Jan. 29, 2008).
This case is a little more complex than it appears on the surface–it is a standard of review decision. It seems to signal that the concept of “waiver” is in high ascendancy.
The Defendant objected to the prosecutor’s improper remarks in opening statement, to “end the cycle of violence” on the rez by convicting Defendant of the battery with which he was charged. The judge sua sponte gave a “curative instruction” to the effect that what was said in opening was not evidence. The Defendant made no other objections, motions, or requests regarding the prosecutor’s remark. It was his only issue on appeal.
Gorsuch, writing for the panel (Briscoe writes a concurrence in the result) views this simply as an issue of waiver due to D’s failure to move for a mistrial or otherwise bring to the trial court’s attention his dissatisfaction with the instruction. He reviews the claimed error under the plain error standard and finds none (the remark did not get repeated again in trial). Much of Gorsuch’s opinion is a response to Briscoe.
Briscoe adopts the issue as framed by the defendant, and accuses Gorsuch of allowing the government to re-frame it. Defendant’s issue was whether the misconduct was improper and so prejudicial as to require reversal; the government framed it as the Defendant contending that the curative instruction was insufficient. Running with how the Defendant framed it (Defendant also argued that the remark was not "evidence" but rather served to confuse the jury that its role was to correct broad social problems), the standard of review should be de novo because the claim was preserved by the proper objection. Briscoe would find even under de novo that there was no prejudice to the Defendant.
A few anomalies in the area, acknowledged by both judges, are that a failure to grant a mistrial is reviewed under the more lenient abuse of discretion standard, whereas the overruling of an objection is reviewed under the more rigorous de novo standard. So what does a defense attorney do? Object to the misconduct but do not move for a mistrial, perhaps risking the plain error review of Gorsuch, or move for a mistrial and get the less than de novo review of abuse of discretion? (Actually, Gorsuch seems to imply that in a situation where there is an objection that is overruled, unlike in this case where the court’s instruction implicitly was a sustaining of the objection, a motion for mistrial would be fruitless and would not be required). Since Taylor is now the law, object and if no instruction is given and the court overrules your objection, do not ask for a mistrial and you should get a de novo review. If the court sustains your objection, then you need to take it a step further and get an instruction or ask for a mistrial and at least you get a review better than plain error.
This case is a little more complex than it appears on the surface–it is a standard of review decision. It seems to signal that the concept of “waiver” is in high ascendancy.
The Defendant objected to the prosecutor’s improper remarks in opening statement, to “end the cycle of violence” on the rez by convicting Defendant of the battery with which he was charged. The judge sua sponte gave a “curative instruction” to the effect that what was said in opening was not evidence. The Defendant made no other objections, motions, or requests regarding the prosecutor’s remark. It was his only issue on appeal.
Gorsuch, writing for the panel (Briscoe writes a concurrence in the result) views this simply as an issue of waiver due to D’s failure to move for a mistrial or otherwise bring to the trial court’s attention his dissatisfaction with the instruction. He reviews the claimed error under the plain error standard and finds none (the remark did not get repeated again in trial). Much of Gorsuch’s opinion is a response to Briscoe.
Briscoe adopts the issue as framed by the defendant, and accuses Gorsuch of allowing the government to re-frame it. Defendant’s issue was whether the misconduct was improper and so prejudicial as to require reversal; the government framed it as the Defendant contending that the curative instruction was insufficient. Running with how the Defendant framed it (Defendant also argued that the remark was not "evidence" but rather served to confuse the jury that its role was to correct broad social problems), the standard of review should be de novo because the claim was preserved by the proper objection. Briscoe would find even under de novo that there was no prejudice to the Defendant.
A few anomalies in the area, acknowledged by both judges, are that a failure to grant a mistrial is reviewed under the more lenient abuse of discretion standard, whereas the overruling of an objection is reviewed under the more rigorous de novo standard. So what does a defense attorney do? Object to the misconduct but do not move for a mistrial, perhaps risking the plain error review of Gorsuch, or move for a mistrial and get the less than de novo review of abuse of discretion? (Actually, Gorsuch seems to imply that in a situation where there is an objection that is overruled, unlike in this case where the court’s instruction implicitly was a sustaining of the objection, a motion for mistrial would be fruitless and would not be required). Since Taylor is now the law, object and if no instruction is given and the court overrules your objection, do not ask for a mistrial and you should get a de novo review. If the court sustains your objection, then you need to take it a step further and get an instruction or ask for a mistrial and at least you get a review better than plain error.
posted by Anonymous at 9:33 AM
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