# Objection !! ... Overruled !! .... Exception !! **URL:** \ **Category:** Factual Questions\ **Created:** [July 10, 2003, 1:20am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368 "2003-07-10T01:20:05Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2003, 6:57pm UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/21 "2003-07-10T18:57:32Z")
**pravnik** : with all due respect for the trial court and the prosecutor, their testimony was self-serving - especially since (again as I dimly recall) there was testimony that the prosecutor DID notice Cannon sleeping, commented on it to someone else, and suggested he (Cannon) not be appointed to any more capital cases, a suggestion which was apparently followed. Was this testimony during a state habeas proceeding or a federal habeas? I seem to recall that the state habeas hearing found that Cannon slept, but that _Strickland_ didn’t afford relief - was there a separate federal factual hearing, do you know, or did the federal court just adopt the state habeas’ findings of fact? (I should probably just pull the case and read it, I know…) ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [July 10, 2003, 7:23pm UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/22 "2003-07-10T19:23:30Z")
An additional point – I think we’re approaching a point when the high (one might say laughably high) standard articulated by **Bricker** for showing your defense counsel was incompetent might be reconsidered. Several appellate judges (including Supreme Court Justices Stevens, O’Connor, and Ginsburg) have signaled that they are generally disappointed with the quality of representation provided for indigent defendants by states; I wouldn’t be surprised if this becomes a live issue in the next several years. –Cliffy ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2003, 7:43pm UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/23 "2003-07-10T19:43:42Z")
It needs to be a live issue. We hashed this out in the thread about the West Memphis Three - behind the hysterical and inaccuarte representations that started the thread were some very real problems with the quality of representation provided to the accused in those cases. I have long felt that this was an area of law badly in need of overhaul. (In fact, it’s one of my top three, the other two being _Batson_ and consensual encounters. The parade of self-serving justifications prosecutors come up with in the name of honoring the technical requirements of _Batson_ are enough to make you laugh, if it weren’t so sad. And the lax standards for judging a consensual encounter leave us in the odd position in which a person could be prosecuted for failure to obey a lawful order if he leaves, and if he stays, the state will piously claim he was free to leave at any time. Bah) - Rick ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [July 10, 2003, 7:46pm UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/24 "2003-07-10T19:46:15Z")
You remember right, **Bricker**. There was a state habeas evidentiary hearing in the trial court that resulted in a recommendation that the Texas Court of Criminal Appeals grant habeas relief, but the TCCA denied it, finding he did sleep but there was no relief under _Strickland_. The prosecutor testified that he didn’t see Cannon sleeping, but the court coordinator testified about a conversation with the prosecutor about Cannon’s incompetence. There was no separate federal evidentiary hearing; the State conceded the correctness of the state habeas court’s factual findings that Cannon slept, they just challenged that Burdine was predjudiced as a result. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [July 10, 2003, 8:03pm UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/25 "2003-07-10T20:03:36Z")
Could you give a slightly longer explanation of what you mean by Batson and consensual encounters? ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [July 10, 2003, 8:31pm UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/26 "2003-07-10T20:31:15Z")
> [@](#): > > \*Originally posted by Q.E.D. \* > I’m betting **Bricker** knows what “egregious” means. I know what it means too, Well, you probably don’t know the half of it. I can do even better. While in English the usual meaning is “outstandingly bad”, in reality, the original and native meaning is just “outstanding”. Webster’s give also: archaic : DISTINGUISHED which makes sense if you think the meaning is “outstanding”. In Spanish the same word (egregio) has evolved to mean “distinguished” in a very positive way and, so, it means “outstandingly good” which is the exact opposite of the English meaning. So don’t be surprised if, when reading a Spanish newpaper you come across the phrase “his egregious majesty the king. . .”. it is not what it sounds like in English. BTW, vey interesting thread. Thanks to Bricker et al. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2003, 8:32pm UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/27 "2003-07-10T20:32:18Z")
Hijack time! _Batson v. Kentucky_ is the SC case that forbids prosecutors (or, for that matter, defense lawyers) from using even a premptory challenge to excuse a juror based on the juror’s race. There is a widely held belief amongst members of the bar that blacks tend to be better jurors for the defense than whites, all things being equal, and it was not uncommon for prosecutors to use their premptory challenges to exclude them. Batson said you can’t do this, and it mandated a procedure whereby the defense lawyer could make a “Batson challenge” to a strike or set of strikes. If the trial judge found a prima facie case that the strikes were racially based, the burden would then shift to the prosecution to provide a “race-neutral” explanation for the strike, the credibility of which the trial court would then judge and either accept or reject. IN THEORY, this was supposed to prevent race-conscious strikes. In practice, it merely foreclosed effective appeals based on the racial composition of juries. The prosecution would get challenged after striking the only three black veniremen; the defense would point out that he’d struck the only three blacks; the prosecution would come up with all sorts of alternative reasons… too old, too young, too educated, not educated enough, too well dressed, too poorly dressed, not paying enough attention, giving me a weird vibe. Now, if a given prosecutor always struck younger people, I could live with it… but from trial to trial, the reasons always changed to target the ones being struck. They were, in my possibly biased view, thinly-veiled rationalizations for the exact kind of strikes that _Batson_ was supposed to stop. But the judge always dutifully said, “I find the prosecution’s reasons credible,” and that was that. I am willing to bet that in the first five years following _Batson_, you won’t find half a dozen cases in Virginia in which the judge upheld a Batson challenge at trial - and yet the racial composition of juries did not change significantly. _Batson_ was a great idea, very poorly implemented. Consensual encounters: these are a type of encounter between police and citizens that do not implicate the Fourth Amendment’s prohibitions against unreasonable search and seizure. The classic case is an officer walking up to a person on the street and beginning to question them. He may do this without probable cause or even reasonable suspicion: as long as the person is free to disregard the officer’s questions and go about his business, no violation of the Constitution has occurred. Obviously, every case in which the state doesn’t have probable cause or reasonable suspicion is one they wish to characterize as consensual. The problems arise when an initial seizure is transformed into a consensual encounter, and arise most often in the course of a traffic stop. When the officer observes a traffic infraction, and initiates a traffic stop, he is generally only empowered to issue a summons for the infraction. A tactic often employed, however, is for the officer to issue the ticket, tell the motorist he’s free to go, and then in the next breath ask him if he has any drugs or contranband in the car, and if he’d consent to a search. “You don’t have anything back there I should know about, do you?” and “Then you don’t mind if I have a look?” are typical phrases heard at this stage. If we review this in a courtroom, the Commonwealth will innocently claim that the driver was told he was free to go – that the encounter has now transformed itself from a legal seizure into an equally legal consensual encounter. This doesn’t pass the smell test, since I’m sure that (a) any reasonable citizen doesn’t feel free to leave after having been pulled over, and still having the patrol car behin him with lights flashing, and (b) if a driver DID try to leave without further conversation, the police would likely immediately pull him over again. The way in which initial valid stops magically become consensual encounters is an area of the law that needs improvement. The Commonwealth can take the same set of circumstances and point to suspicious behavior or even a violation of the law, or claim that the driver was free to leave all along – whatever suits their purpose. - Rick ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [July 10, 2003, 11:18pm UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/28 "2003-07-10T23:18:28Z")
Bricker > [@](#): > > 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. Will a judge ever rule against a simple cry of “objection”!" without asking for eloboration first? > [@](#): > > 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. What if the poor defense was a strategic decision on part of the _defendent_- hire a bad lawyer to provide a basis for appeal? Would that invalidate the claim? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 11, 2003, 12:56am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/29 "2003-07-11T00:56:03Z")
> [@](#): > > \*Originally posted by The Ryan \* > Will a judge ever rule against a simple cry of “objection”!" without asking for eloboration first? Sure, if the grounds for the objection are clear from the context. But if you believe the judge didn’t understand your grounds, then it’s up to you to make the grounds clear. If you have an objection to a line of testimony, it’s probably poor PR for you to object to every question; you can make clear your grounds initially and simply say that you have a continuing objection to the line of questions. > [@](#): > > What if the poor defense was a strategic decision on part of the _defendent_- hire a bad lawyer to provide a basis for appeal? Would that invalidate the claim? That’s an interesting question. It’s a very poor strategic decision, since you start with a presumption of innocence, and you lose that after a guilty verdict. You’re in worse straits all around after a conviction; your energies are much more profitably engaged trying to win at trial than anything else. But let’s say this wisdom is lost on a defendant, who deliberately hires a klutz, thinking he has a sure-fire reversal on appeal. Well, as I’ve just ranted about above, it’s by no means sure-fire. When the highest court in Texas finds no presumed prejudice innured to a defendant whose lawyer was asleep, it’s hard to imagine finding someone worse than that who still has his bar card. But let’s assume that this all happened. I’d opine that a strategic choice on the part of the accused is of no moment; the whole reason to have an attorney is so the attorney can help the accused navigate the morass of the justice system. The right to competent counsel is guaranteed by the Sixth Amendment; a licensed lawyer is presumed competent; if errors were made during the trial they should be judged by the Strickland test, and it’s irrelevant that the accused thought he was helping himself by hiring a klutz. Now, an accused that actively tries to sabatoge his attorney’s efforts during trial may be considered to waive his claim to ineffective representation, I think. But merely hiring a less-than-stellar attorney would not be a factor in later determining whether or not that attorney was ineffective. This is all supposition. I can find no case that addresses this point. - Rick ---
**Author:** ![county](https://avatars.discourse-cdn.com/v4/letter/c/ce7236/32.png) [@county](https://boards.straightdope.com/u/county)\ **Post date:** [July 11, 2003, 12:56am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/30 "2003-07-11T00:56:10Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*What does this second sentence mean? \*\* Sorry about the confusion - I mean’t that the matter in dispute has to be significant and that the ruling on the objection must be pretty far out of bounds. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 11, 2003, 1:01am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/31 "2003-07-11T01:01:44Z")
> [@](#): > > \*Originally posted by county \* > \*\*Sorry about the confusion - I mean’t that the matter in dispute has to be significant and that the ruling on the objection must be pretty far out of bounds. \*\* Do you have a citation in support of this claim? I had always thought it was a way to preserve the record for any issue you planned to appeal. What difference does it make to a reviewing court if you thought the matter was pretty far out of bounds? How do you contend it worked, exactly? ---
**Author:** ![JohnW77707](https://avatars.discourse-cdn.com/v4/letter/j/d2c977/32.png) [@JohnW77707](https://boards.straightdope.com/u/JohnW77707)\ **Post date:** [July 11, 2003, 1:45am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/32 "2003-07-11T01:45:51Z")
The trend in the law, at least in most jurisdicitions, is to allow appeals to be heard on the merits instead of seeing points of error end up “waived” because trial counsel didn’t jump through all of the hoops and say the magic words. I don’t know that “exception” was ever the rule in Texas but we have had, just in the last 10-20 years, a number of changes which basically allow common-sense objections or offers of proof without all of the trappings. There are a lot of factors at work. For one, in many states, trial lawyers and appellate lawyers are two different breeds of animals. There’s a conscious-or-unconscious bias on the part of the appellate lawyers to make it tricky to preserve error. On the other hand, a less-cynical explanation is that the judicial system wants some certainty. You don’t want to have a rule of preserving error that is so wide open that the appellate lawyer can come in after the fact and start basically creating objections that weren’t made in the first place. As stated earlier, the point of requiring an objection to be made in the first place is to give the trial judge a chance to get it right the first time. It is an incredible waste of time and money if you were to allow one side or the other to “lay behind the log” and watch the judge commit a reversible error without saying anything. They would just hope that the jury ruled in their favor anyway, and if they lose, they appeal and get a new trial. You get the picture. But in general, the disuse of the “exception” (which, as I postulate, is just the formal method of preserving error that was in place in some states) is just part of the trend of removing “appellate traps” from the trial courtroom. JohnW77707, Esq. Board-Certified, Personal Injury Trial Law AND Appellate Law Texas Board of Legal Specialization ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 11, 2003, 2:17am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/33 "2003-07-11T02:17:41Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*Some (few) errors are so fundamental that you need simply to identify them. They are referred to as “plain error.” > … > 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.”\*\* Man, that seems awfully complicated to me. I’ve been doing appellate work for ten years now, and I’ve never heard of those sorts of formal distinctions. Sure, the issue generally has to have come up at trial, but the focus I’m used to is whether an error was made, and if so how serious it was, rather than this type of procedural analysis. :eek: ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [July 11, 2003, 2:35am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/34 "2003-07-11T02:35:16Z")
I think it’s generally positive system – assuming competent counsel, which is not a safe assumption. By requiring counsel to make an objection, it gives the opportunity for the trial court to correct any problems then, instead of letting them fester until they taint a verdict which then requires a new trial. Judicial resources are scarce; moreover, when a case has to be retried evidence is likely to be lost, witnesses are more likely to be unreachable or dead, and it’s harder to get a just result. It seems reasonable to require that if you have a problem, you’re charged with getting it addressed at the earliest possible moment so it doesn’t ruin weeks or months worth of later proceedings. –Cliffy ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 11, 2003, 2:54am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/35 "2003-07-11T02:54:50Z")
Oh, I’m not disagreeing with the principle - that sounds much like what I’m familiar with. It’s what sounds like an unusual emphasis on the procedure, rather than the substance, that strikes me as odd. ---
**Author:** ![Xgemina](https://avatars.discourse-cdn.com/v4/letter/x/b5e925/32.png) [@Xgemina](https://boards.straightdope.com/u/Xgemina)\ **Post date:** [July 11, 2003, 2:59am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/36 "2003-07-11T02:59:11Z")
Regarding ineffective counsel as a strategy. Not really a strategy that was taken from the beginning, but I seem to remember a case a few years ago where the trial attorney, in order to assist his client’s appeal, said that he was ineffective counsel during the trial. If I remember correctly, the appeal was not successful but his client used this admission in civil court to sue the attorney for malpractice. Does anyone remember this? I can’t find a cite, but I seem to remember talking about it with my boss at the time. Maybe I’m just imagining it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 11, 2003, 3:02am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/37 "2003-07-11T03:02:24Z")
NP: Has your appellate work been in the civil or the criminal arena? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 11, 2003, 3:55am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/38 "2003-07-11T03:55:40Z")
Both. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [July 11, 2003, 4:08am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/39 "2003-07-11T04:08:55Z")
Ditto what Northern Piper says concerning an emphasis on substance rather than procedure up here, for both civil and criminal. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [July 11, 2003, 4:16am UTC](https://boards.straightdope.com/t/objection-overruled-exception/187368/40 "2003-07-11T04:16:20Z")
> [@](#): > > \*Originally posted by Bricker \* > **"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."** Gold and chartreuse? Deserves a conviction regardless of gang status. [Previous page](https://boards.straightdope.com/t/objection-overruled-exception/187368.md?page=1) [Next page](https://boards.straightdope.com/t/objection-overruled-exception/187368.md?page=3)