Sunday, February 14, 2010

Technically speaking, Part II

People often express dismay at their perception that defendants are always "getting off on technicalities."  Of course, what people call "technicalities" are often 4th, 5th, and 6th Amendment violations.  I take exception to the idea that Constitutional violations are "technicalities," but that's a different blog post

Nobody ever hears about the true, ridiculously technical technicalities that courts use to avoid granting defendants relief on appeal.  The criminal procedure rules in Kansas require that issues be raised at the trial court before they can be raised on appeal.  Fair enough because most issues require some development and consideration of facts, a task which trial courts can do but appellate courts can't as well.  So you can't argue a 4th Amendment issue or a hearsay complaint if there was no suppression hearing or objection at the time of trial.  The statute codifying the rule requires a timely objection below.

That statute has been interpreted to require a contemporaneous objection, which means it's not just enough to litigate the issue below, but you also have to object at just the right time.  For example, here's an excerpt from a transcript I once read:

                         PROSECUTOR: Your honor, I'd offer Exhibit B and ask it be admitted.
                         JUDGE: It's admitted.
                         DEFENSE ATTORNEY: Well, your honor, we'd object.

On appeal, the court concluded that this defendant could not complain about the admission of the exhibit because he had failed to object before it was admitted.  Talk about a technicality.  Because the judge beat the defense attorney to getting the court reporter's attention, the defendant gets no consideration of the appropriateness of the evidence on appeal.  Never mind the fact that it wasn't proper for the court to admit the evidence without waiting for the defense to object or not.

Or then there are the cases where the 4th Amendment issue is the only issue.  The defendant files a motion to suppress the evidence.  A hearing is held and the court rules against the defense, finding that the search was not unconstitutional.  There are no other real defenses to the charge, say it's a drug possession case, so the defense doesn't really want to go to trial, but you can't appeal the 4th Amendment decision if you plead guilty.  So, the defense proceeds to a bench trial on stipulated facts.  The stipulated facts are often written out.  Even though everyone knows that the defense is only proceeding this way because of the trial court's ruling on the suppression motion, if the defense attorney doesn't renew the motion to suppress at the trial AND include an objection to the evidence in the stipulation of facts, the appellate courts may well find that the issue isn't preserved for appeal.

The above examples seem to me like things that are worthy of being derisively labeled "technicalities."  Far more so than an interrogation continued after a suspect requested an attorney or a search conducted without a warrant.

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