Objection !! ... Overruled !! .... Exception !!

Factual Questions
1

The only time I have heard a lawyer say “exception” to a judge overruling a lawyer’s objection is in the movie “the Verdict”. Paul Newman was the lawyer and Milo O’Shea was the judge and the dialogue was as follows:

Paul Newman: "Objection !! "
Judge: "Overruled !! "
Paul Newman "Exception !!! "
Judge “Noted and thank you.”

I think this happens at least twice in the movie (maybe more).

I gather that when a lawyer shouts “exception” after a judge has overruled the objection, the lawyer is expressing his disagreement with the judge’s ruling. If that’s the case, why don’t we hear lawyers shouting “exception” a LOT more often ? (either in real life or TV or movies). Also, after the lawyer shouts “exception”, I can understand the judge saying “noted” but why the heck does he have to thank the lawyer for taking exception to his ruling?

2

Back in the day - and perhaps even now, in some jurisdictions - I believe it was necessary to preserve your record for appeal in this way.

These days, in every jurisdiction I’m aware of, simply objecting preserves the record, as long as you object with enough specificity that the trial court can meaningfully rule.

This is a conjecture on my part, though, not a certainty; if anyone has more definitive information, please step up.

3

That shit is for appeals. It has to be particularly egregious to matter.

4

What does this second sentence mean?

5

Maybe “exception” means that there is an exception to the rule at issue.

6

Exactly what it says.

7

I’m betting Bricker knows what “egregious” means. I know what it means too, and the meaning in this instance is not at all clear. Does the judges overruling have to be egregious? The crime the defendant committed? The bailiff’s hairdo? We just want some clarification.

8

Bricker has it right; the reason you don’t hear it is it’s archaic in most jurisdictions, maybe all. In the old days it served the double purpose of warning the judge that the excepter thought the ruling was wrong and may bring it up on appeal, and preserved the error for appeal. The excepter wasn’t necessarily the same person as the objector (as with Paul Newman), he/she could also be the other party if the ruling was sustained and went against them.

9

RealityChuck: Please note I didn’t ask, “What does the sixth word in the second sentence mean?”

As Q.E.D. correctly suggests, I know what the word means. I don’t know what the sentence means - in particular I don’t know what the pronoun ‘it’, as used in the sentence, refers to.

I agree with county that the “shit” in question is for appeals – indeed, I said as much in my first post in this thread.

In case anyone reading this is lost…

In general, when the result of a trial is appealed, the message is that an error was made. You cannot simply appeal because you don’t like the result. The presumption is that the judge did his job, the jury, if present, did its job, and the verdict is a correct one. When you go to the appeals court, you must present a list of why you believe that not to be true - you must identify, specifically, errors that were made during the trial that caused the verdict to be less than trustworthy.

Some (few) errors are so fundamental that you need simply to identify them. They are referred to as “plain error.”

Most errors, however, require that before the appellate court may consider them, the trial court must have also considered them. In other words, if an error happens at trial, and you remain silent, you cannot complain about it on appeal. If the prosecution calls a witness that will offer improper testimony, you must object to the witness at trial. This give the trial court the chance to hear your objection, weigh the reasoning you have as to why the witness’ testimony is improper, and rule. If you do that at trial, the judge can keep the error from occurring in the first place. You can’t let the judge make a mistake, stay quiet, and then complain on appeal that a mistake was made.

Sometimes, of course, the judge won’t agree with you. You may present your careful, cogent, well-thought-out objection, and he may overrule it and permit the witness to testify anyway. But that’s OK - you have done what is necessary to allow you to go to an appeals court, point to the trial judge’s ruling, and say, “You see? I told him he was wrong, but he went ahead and did it anyway.”

This is called “making your record” or “preserving your record.”

An appellate court will generally not consider errors that were not the subject of objections at trial. The loss of such an issue is called a “procedural default.”

I believe, in days past, that in may have been necessary to note an exception to preserve your record – that there was a difference between merely objecting, and noting that you considered a particular ruling adverse enough to potentially appeal. In other words, a mere objection wasn’t enough to preserve your record – you had to object AND take an exception.

This is conjecture, not actual knowledge.

  • Rick
10

I should note, since I started this mini-essay on procedure, that the objection you make has to be specific enough to alert the judge to the error. A general cry of “Objection!” won’t permit you to waltz into the apellate court and say that the witness’ testimony violated attorney work-product privilege.

During a trial, some situations are so obvious that you need merely say, “OBjection!” without offering any grounds, because it’s blisteringly clear to the judge and opposing counsel what the reason for the objection is. But if there’s any doubt, and especially if the ruling goes against you, you need to make clear precisely WHY you’re objecting - what rule of evidence is being violated by the procedure or testimony being sought.

Sometimes, to make your record, you need to provide detail beyond simply the grounds - this is called an “offer of proof” or a “proffer.” Let’s say you wish to have an expert testify that gang members in the area use red and black handkerchiefs as identifying colors. The judge may refuse to permit the testimony as irrelevant.

When you get to the appeals court, you want to be able to say that the judge made an error, and the error caused your client to be convicted when he shouldn’t have been. But the appeals court has no way of knowing what the epxert would have said – because, after all, he never actually testified. They may rule it was “harmless error” - yes, a mistake was made, but it didn’t likely change the verdict.

To prevent that, you need to make a record of what the expert would have said. Outside the presence of the jury, you can say, “If called to the stand, Dr. Biliboombotz would testify that Flipz gang members wear red and black, that when he interviewed my client shortly after his arrest, my client was wearing gold and chartruese, and that gold and chartreuse are not gang colors.”

This permits the appellate court to decide if the testimony would have been relevant.

  • Rick
11

Can an individual appeal on the grounds that they had a crappy lawyer?

Say I am represented at trial by a court appointed attorney (so its not my fault for choosing him/her) and I am ultimately found guilty. Down the road some liberal do-gooders think I got the shaft and apply their efforts in setting me free and retain a good attorney to represent me on appeal. Can that attorney go to the appellate court and say that the first attorney was essentially an idiot as they can point to multiple, glaring examples of where an objection might be expected but for whatever reason that attorney didn’t? Also assume those objections can be shown to have likely had a significant impact on the outcome of the case.

12

Yep, in a criminal trial. It’s called “ineffective assistance of counsel”, where basically the lawyer made errors so serious that you were effectively denied your right to counsel under the sixth amendment and as a result didn’t recieve a fair trial.

13

Boy, did you ask a good question!

The situation you describe is one that’s the subject of intense controversy these days.

The short answer is that yes, you may appeal on the grounds of ineffective assistance of counsel. The U.S. Supreme Court, in a case called Strickland v. Washington, has defined what a person seeking relief on those grounds must show:

  1. That his attorney’s performance fell below a measurable, objective standard, and
  2. But for those errors, there is a substantial likelihood that the reuslt of the trial would have been different.

For the first prong, it’s not enough to merely point out a place where an objection could have been made. You have to show that the decision to withhold an objection was not a strategic move on the part of the attorney – that no reasonable, professional, comptetent attorney would have failed to object.

For the the second prong, you must show a substantial likelihood that the result would have been different. This is very difficult to do, because you cannot say, “Well, if the jury had never heard this, and they never heard that, and they never heard this third thing… then they would have done something different.” That’s conclusory - it’s guessing. You have to be able to point to some killer piece of evidence, some blockbuster… it’s much harder to point to fifteen little things, even though, in aggregate, it’s likely that they swayed the jury. But was it SUBSTANTIALLY likely? Hard to prove.

This rule gives us the very odd concurrence of events, in which the appellate lawyer says: “My client’s verdict should be overturned, because of Error A, Error B, Error C, and Error D, and also because he received ineffective assistance of counsel,” and the appellate court replies, “Well, we’re not going to consider A, B, C, and D - your client procedurally defaulted at trial. And yet we don’t find that the trial lawyer was ineffective, because your client can’t point to any specific error that caused a substantial likelihood of affecting the verdict.”

It is, in my view, a modern Catch-22.

  • Rick
14

One added thing…

A ‘crappy’ attorney may be too subjective (but I’d still like to know if an appeal can be made on that subjective basis). For the sake of argument (as a second possibility) assume the attorney can be shown to have not done his/her job in an objective sense. The media in Illinois have reported on some trials where the defense attorney actually fell asleep during trial. I’m not sure what, if anything, happened to those attornies but I think it is safe to say the attorney clearly was not doing his/her job at that point. Would that allow for an appeal?

15

There have been a few sleeping defense counsel cases, Whack-a-Mole. The most recent and infamous one was Burdine v. Johnson from right here in the great state of Texas. Burdine’s lawyer, Joe Cannon, fell asleep during parts of his 1983 capital murder trial. After exhausting his appeals in state court, Burdine filed a federal writ of habeas corpus challenging his conviction on that and other grounds, one of which was that the prosecutor made many homophobic slurs during trial including -get this- arguing in closing that since the accused was a homosexual, death was the only appropriate punishment; prison was “fun” for gay men. Shocking, eh?

Federal District Judge David Hittner (just downstairs from me) found the Burdine had satisfied his burden under Strickland and ordered a new trial. He basically held that a bright line rule applied; if you lawyer falls asleep during substantial portions of the trial, predjudice is presumed and you should automatically get a new trial. I agree. The Fifth Circuit Court of Appeals didn’t, initially. They reversed Judge Hittner 2-1 and upheld the conviction on the grounds that Burdine could not show that the outcome would have been different had his lawyer stayed awake. Judge Benevides (who I’m trying to get a job with, incidentally) issued a withering dissent.

Luckily, there was a rehearing by the whole Fifth Circuit en banc, and then another one, where they reversed the reversal. Burdine got his new trial. He struck a deal with prosecutors and plead guilty in return for staying off death row. He got three consecutive life sentences.

16

Your Honor, I OBJECT to Bricker’s ridiculous accusations! I’m out of order? I’m out of order? This whole COURT is out of order!

Sorry, I’ve just always wanted to say that.

17

Just to add my 2 cents, in addition to what Bricker has said, some attorneys have found a new use for this technique, sometimes calling “marking the record.” Transcripts are long, and can be it quite time-consuming to find each individual place where an attorney thinks there are errors sufficient to merit an appeal. Transcripts come in searchable computer formats now, and searching for “objection” may be too cumbersome, especially for an attorney who objects a lot. I have known attorneys who wish to mark what they consider to be “appeal-worthy” objections by interjecting a word such as “exception,” which can be searched for later. FWIW.

18

pravnik:

Wasn’t Burdine’s lawyer asleep only for the penalty phase? I seem to recall some hay being made by the state over that issue, although it’s been a year or more since I read the case…

19

How could a judge allow an attorney to fall asleep during the trial and/or sentencing phase of a capital murder trial? Shouldn’t such an attorney be held in contempt?

20

Bricker: had to pull the case out to answer that one. Several jurors said that they saw him sleeping several times during the punishment phases, other jurors and the court clerk said both phases, at least once for up to ten minutes. The 5th Circuit said (and Burdine’s lawyer conceded in oral argument) that it was impossible to determine exactly when Burdine slept. Since the 5th Circuit rejected Judge Hittner’s standard of a “presumption of predjudice” when defense counsel sleeps in a capital murder trial, they ruled that Burdine had not made a showing that Cannon had slept during a “critical stage” in the trial.

Earl of Sandwich: I’d say so, or at a bare minimum awakened (he said dryly). The judge and the prosecutor both said that they never saw Cannon sleeping. Cannon said that he was “resting his eyes” and “contemplating.”