Suppose that, during the course of a criminal prosecution in the United States, the prosecution violates some sort of constitutional right (such as not bringing the witnesses/accusers to court so that the defendant can cross-examine them, or using fruit of the poisonous tree, etc.) - and the prosecution themselves apparently hasn’t taken notice of this fact - and the judge doesn’t seem to have noticed either.
Is it advantageous to the defense to deliberately keep quiet about this and “sit on it,” so that once the defendant is convicted, they can promptly appeal and have the whole thing overturned on the basis of a right being violated? (Because if they were to protest in court, while the trial was still going on, then the prosecution might just own up to their mistake but still get the defendant convicted on the basis of other stuff.)
Usually, you have to raise the issue at the trial court before you can appeal.
Of course, sometimes you wouldn’t know about it (A Brady violation for example)
I’m not sure I am following your hypothetical though. The one example you gave isn’t a constitutional violation. The prosecution doesn’t have to bring a witness to court if they can prove the case without that witness. And, either side can subpoena a witness.
Finally, depending on the violation, all you might get is another trial, rather than an acquittal. More information is needed to really figure this out.
You might want to wait until the prosecution has rested. I once won a statutory rape case because they forgot (or couldn’t) prove the age of the defendant. When the state rested, I moved for a directed verdict. The state requested permission to reopen their case, but it was denied and my motion granted.
If the state violates a constitutional right (i.e. search warrant was not applied for or is invalid) it is in the defense interest to challenge that immediately. That would get the resulting evidence thrown out immediately and avoid a re-trial. Better yet, challenge it ahead of time so the jury never sees the tainted evidence. (Otherwise, you may have to prove to an appeals court the invalid evidence was so prejudicial the jury could not follow instructions to ignore it).
I suppose the only real reason to “avoid mentioning” is if it appears the prosecution will omit a crucial part of the case, i.e. the proof of underage mentioned by Procrustus.
Alternatively, the defense lawyer could “fall on his sword” and provide the appeal court with a valid excuse for incompetent defense counsel - but as Procrustus also mentions, many times it results in a retrial - so then the trial replays with the missing evidence front and center.
The prosecution is not obliged to bring witnesses that bolster the defense’s case. Sometimes (I assume) they will skip calling unreliable witnesses so as to not weaken their case; if the defense thinks, for example, it’s a good idea to call the sweet old lady eyewitness who positively identifies their client as the murderer, but needs glasses - then that’s the defense lawyer’s call.
IANAL, but I’m sure the real lawyers here will assure you there are no magic circumstances where a guilty person can get off on a “minor technicality”.
My understanding is you MUST object/make an issue of it in the lower court if you expect to have a higher court consider it in an appeal. Unless it is something you could not have known at the time (e.g. the judge was being bribed by the other side). But, if you have an opportunity to object and don’t then it is on you. You’ve tacitly accepted things as they are and the appeals court won’t let you complain after the fact. You should have complained in the first case.
There is a good RadioLab podcast episode from the series More Perfect called Object Anyway. Basically all black jurors had been eliminated from the jury. The defendant, James Batson, told his attorney to object. At the time the attorney felt there was nothing worth objecting to and refused. Batson insisted and told him to object anyway, and the lawyer did.
That objection made it to the Supreme Court and lead to “Batson Challenges” when selecting juries (which became its own nightmare for other reasons). But, only because the objection was made did the rest happen. No objection, no Batson Challenge in the law.
Defendant. Because of Romeo and Juliet laws, they had to prove a 2 or 3 year age difference. They had the age of the victim, but couldn’t prove my client’s age (or forgot to, I don’t remember which. This was more than 20 years ago)
I totally believe you so this is really just asking…isn’t it trivial to prove someone’s age these days?
Get a driver’s license or birth certificate or passport or school records or medical records or insurance records or employment records…gotta be lots of ways to do it. (Maybe just ask him/her under oath?)
It may be easy - but if the prosecutor forgets to do it during the trial, he’s out of luck (I think).
A few weeks ago, I read a lawyer talk about a case in which the prosecutor forgot/failed to establish that the crime had taken place in the jurisdiction of the court.
Well, they couldn’t compel him to testify, so they couldn’t just ask him. Some of the other things would work, but you’d have to plan ahead and get the documents and get them authenticated. (and avoid hearsay issues). My recollection is that it was a prosecutor’s screw up, and not a way we intended to win the case.
“Mr. Kessler had been charged in connection with claims he made on a sworn criminal complaint filed with a local magistrate in January, but Judge Higgins ruled last month that the prosecution failed to prove the alleged perjury occurred within Albemarle County and agreed with the defense that the state didn’t adequately establish venue.”
(The court did allow reprosecution in this case) (and this is “venue” not “jurisdiction,” (IANAL))
A defendant can waive their constitutional rights (indeed, that’s what a suspect does when they agree to speak to police during an investigation - they waive their right to remain silent). For that reason, an objection to a violation of those rights must be timely raised or it would be considered waived, and not available for an appeal on the basis that it was not preserved.
The only exception to a failure to preserve an issue for appeal applies to “fundamental errors”, but that’s a very narrow consideration, and not usually invoked successfully. Instead, one of the first jobs an appellate lawyer has is to identify where “in the record” the objection was made, and establishing a jurisdictional basis for the appeal is a significant concern for the court.
The courts don’t want to create a situation where a person defends their case, but holds back on some potential arguments, so that they can push for a new trial if they don’t prevail by raising those arguments later (basically, OP, they’ve considered your strategy and said no).
Instead, the idea is that you must try to fix any errors in the trial court itself, and the point of an appeal is to correct any mistaken rulings issued by the trial judge. If you didn’t give the judge the chance to correct those mistakes, then you probably don’t get to raise them for the first time with the appellate court.
I believe something similar happened in the recent Kyle Rittenhouse case; the one thing that he clearly was guilty of was being out after the police curfew. But (possibly because of the focus on the much more serious murder charges), the prosecution seems to have not bothered to establish that there was an official curfew put in place by law enforcement during the trial.
Everyone knew there was a curfew, since it was put in place to deal with all the protesters and trouble. But, though it would have been trivial to establish that in court they didn’t. So, the judge tossed that charge out in the end.
IANAL. You have to prove each element of the crime beyond a reasonable doubt in order to get a conviction at trial. The age difference, being a (clearly) unproven element, resulted in the directed verdict.