A week’s vacation in beautiful downtown Baghdad!
The general rule is that you can appeal any decision. The exception is that you cannot appeal an error that you invite, which is what I intended to say. I was unaware of the exception to the exception of plain error, however, my reserach on this indicates that this is correct, and there are other exceptions too.
However, if you ask a question that the other side has already asked, you objected and got overruled, you are not inviting error, to repeat the exact same question. For which I again cite Witkin (it’s what this library has handy) on California Criminal Evidence section 2015: (b) Cross-Examination or Rebuttal After Objection Overruled.Even though the appellant believes his overruled objection is good, it is hardly safe to stake everything on the possibility of reversal on appeal. Usually, he will meet the challenge of the inadmissible evidence, by cross-examination and, if necessary, by rebuttal evidence on the issue. And no waiver results from this necessary defensive action. (See Jameson v. Tully (1918) 178 C. 380, 384, 173 P. 577
If the judge allows, over Bennett’s objection, the plaintiff to use the multi-part definition, it is impossible for Bennett to address the subject matter and defend the case without using the exact same multi part definition. Fortunately for my position, the law supports me.
http://slate.msn.com/id/2128755/
Michael Behe, a professor of biochemistry, in wrote Darwin’s Black Box in 1996 and is testifying as a scientific expert in the current intelligent design case. Now his testimony seems to me to be unscientific and in fact in bad faith, a lie. He’s playing a legal game. Is he perjuring himself in further of his faith in the Intelligent Designer.
Well, what the law supports is a most generous interpretation of your position, with all the inferences being resolved in your favor.
And rather than argue, I’m going to let you do that, because your ultimate position is still untenable.
So - Bennett objected once, saying, “I don’t think he understands…” The judge overruled that objection. Now, you’re saying that because the judge cut him off, he isn’t required to make any other grounds for objection known – that the judge interrupting him essentially gives him a free pass, on appeal, to claim ANY additional grounds for his objection.
This is wrong, and it is the reason for rules like Virginia’s 5A:18. These rules are not formulaic. They exist for precisely the reason I’ve been discussing: to prevent benefit from invited error. The purpose of Rule 5A:18 and its cousins in other jurisdictions is to present the nature of the objection to the trial court and permit the trial court to cure the error. Bennett did NOT object to a “compound and complex question.” The court did interrupt him, it’s true. But the court did not gag him, or order him to sit down, or order him to stop making objections. And here’s the ket point: if the objection to the question was that it was “compound and complex” Bennett NEVER GAVE THE TRIAL COURT THE OPPORTUNITY TO CURE THAT ERROR.
That’s precisely what the doctrine of invited error is meant to prevent. Bennett cannot let an error happen, hoping for an acquittal, and then complain about it when there is a conviction, as has happened here in our hypothetical.
If you disagree, please provide a cite where a court’s mere interruption of one objection is construed to be a “free pass” for the losing side to argue different grounds on appeal. I’m not talking about a case where the court says, “That’s it. I’ve ruled; I don’t want to hear any more.” (Even then, a savvy attorney would ask for permission to make his record). But a simple interruption by the trial judge during one objection does not mean that, on appeal, ANY GROUNDS for an objection are fair game. There is no cite anywhere to the contrary.
Because it just ain’t so.
Um, Bricker? A moment, please?
Ann Landers might have said “Nobody can yank your chain without your permission”. Ol’ Bob here isn’t trying to advance a position; he’s just having fun with you. You don’t need to feed him.
What ElvisL1ives said. I don’t think anyone but you, Bricker, is taking Bob seriously at this point.
My effort is not devoted to convincing Bob, who is clearly too thick to reason with… but to clear up the issue for the Silent Reader. I know I can’t teach the intricate workings of trial and appellate procedure in a couple of message posts. Hell, there are plenty of lawyers that don’t understand. But there are two specific issues that the reader should walk away from this thread understanding: that probable cause is a very low and easily reached standard; and that when you don’t object to an error with specificity at trial, you can’t complain about that error on appeal.
The first one is easy. The second one is not, and it’s worth pounding away a bit to teach. Of course, I’m up against a tide of Law and Order, etc., that routinely ignores stuff like that; so, too, does almost every newspaper article that endeavors to report appellate rulings. I know Bob either doesn’t get it or is being deliberately obtuse – my hope is the Gentle Reader picks up something he didn’t know, and is edified.
I appreciate that desire, Bricker, I really do. But I have to guess that any silent readers silently walked away from this exchange a long time ago. Those still hanging on aren’t reading along to have their understanding of legal processes enhanced.
Yeah, but you can still play “I got the last post in on the subject!”
That’s true.
I am. Thanks, Rick.
I truly admit that I’m yanking Bricker’s chain on the “I’m a lawyer” stuff, although what I am saying about it is also true, it’s the same kind of weaseling Clinton did. I wouldn’t have said a thing if his disclosures in the two threads had been reversed. He obviously can put together a cogent argument. One I don’t agree with, but it’s about the best argument I think the prosecution side could come up with. I do think the irony is kinda funny. Every time I think about how Clinton told to the public what I consider a social lie, not the full truth, and I think about Bricker’s “I’m a lawyer” I chuckle the same way I do when I think of the phrase: “you don’t talk gibberish to Bob Loblaw.” I just can’t help it, the unwitting hypocrisy of human beings is just way too cool.
But Bricker is just wrong about objections, which is why I bothered to research the matter. A judge is entitled to cut off the lawyer at Objection… and say, overruled, and the lawyer doesn’t get to keep on arguing or state the grounds. It means the judge understands the grounds and it is overruled. Moreover, even if Bennett hadn’t objected, and had later used the definition himself, or even introduced it, Clinton could appeal on the ground of plain error and ineffective assistance of counsel for failing to object to a plainly objectionable definition.
It’s one thing to use that kind of definition in an interrogatory request or document demand, but it’s really another when there is a time pressure on a witness to answer in real time.
But another abuse in the Jones case is that it was a case supposedly about sexual harassment and assault. There was never any question that the Lewinsky situation was consensual, and consensual relations in a different workplace years apart are irrelevant entirely to a non-consensual case. The judge should not have allowed the line of questioning about Lewinsky absent some showing that it was non-consensual. This doesn’t mean it should be struck from the record, but rather I’m digressing a bit to whine about how Judge Wright let her animus towards her former law professor and her political ambitions for promotion play into the right wing conspiracy that the Jones case was part of. As long as a trysting couple in a workplace keep the matter to themselves, as Bill and Monica did, it doesn’t create a hostile work environment, and certainly couldn’t have created one in the past back when Jones worked for the state of Arkansas.
interesting admition.
Um. THere’s no doubt to me that Bill kept it quiet (although I suspect that his SS detail had more than a smattering of suspicion, there’s also no doubt that Monica most emphatically didn’t ‘keep it to herself’.
A consensual affair can be carried on in the workplace in such a way as to make it sexual harassment to others, and there is always potential for disaster during the break up, but the affair with ML was not in my completely unhumble opinion, sexual harassment of ML, or the employees of the government of Arkansas years earlier, a temporal impossibility. What PJ needed to do was find someone before or during her own episode, or at least in the same workplace i.e. environment. Bill isn’t a travelling environment himself. How about Jennifer Flowers or Liz Gracen? Both of them were contemporaneous. I don’t recall what Flower’s job was, if it was gov connected, but Gracen came into “contact” with His Horniness as a result of being Miss Arkansas and Miss America and wouldn’t have other than for the job.
As for the admission re: Bricker, I’m being sincere in the criticism, but of course I’m playing it up to add some fun. I consider it in the big scheme of life to be a faux pas on the order of the commercial where the guy is confused about not getting “french benefits”, it’s amusing, makes my point and I can tease too. And back when I flung “cocksucker” at Marley23, I was being teasing, I wasn’t picking on him because I thought he was gay – which may from posts in the Sulu is gay thread be the case. Aren’t we the equivilent of a bunch of dumb jocks sitting around watching a football game around a BBQ Pit giving each other a bunch of crap?
Um- Bob look back at the post of mine that you quoted.
you stated
and I even bolded out “as Bill and Monica did” (w/reference to “as long as they keep the matter to themselves”), and noted that while Bill did in fact "keep it to himself, Monica most emphatically did not “keep it to herself”.
now. Look at your response to me.
what the fuck does any of that have to do with my point? can folks keep something to themsevles? sure. Did BIll? yeppers. Did Monica? um. no.
But, in those cases, there is a familiarity and mutual respect among the parties, a friendship that allows for silly namecalling.
However, I have absolutely no respect for you. Neither, it appears, does Bricker. In that case, you’re not a friendly joker, your a complete asshole.
Fuck you too shit for brains.
Sorry I wasn’t clear, I meant around the workplace. She most certainly did tell Linda Tripp, who did not complain of a sexual harassment hostile work environment while she was at the Clinton White Hosue, but did manage to get her fingers in just about every other pie.
Not if he wants to preserve the objection for appeal. I’ve given you a specific cite to the contrary: Rule 5A:18. Now you find a case where a lawyer was merely interrupted by a judge, having offered one grounds for objection, nver came back with any additional objection at trial, and was permitted to argue different grounds on appeal. FIND ME A CITE. You can’t. Because the entire point of objections is permitting the trial court to cure an error. The court cannot cure an error it’s unaware of. A party may not fail to identify an error and then complain about it on appeal.
Yes. That is true. And as you recall, I am the one that brought up the plain error exception.
So - let’s analyze those claims as an appellate court would, from both a plain error standpoint, and an ineffective assistance of counsel claim.
As you are undoubtedly aware, prevailing on an ineffective assistance of counsel claim is a high burden. This is often a collateral attack on a conviction rather than a direct appeal, but for our purposes that’s irrelevant. The petitioner must satisfy two prongs: one, that counsel’s performance fell below a reasonable, objective standard of performance, and was not merely the result of a strategic decision, but was a genuine failure of competence; and, second, that the defendent was actually prejudiced as a result of that particular failing.
And a plain error analysis asks only whether the error was of sufficient stature to undermine faith in the final accuracy of the judgement and cause a lack of faith in the administration of justice.
Do you agree that the above accurately lays out the requisite tests for ineffective assistance and plain error, respectively?
Yes, I’m aware that effective assistance is only used successfully rarely. But a failure to object here would be ineffective per se.
But on to your requests for authority. I cannot find a case where the judge interrupts an objection. My cites are again going to be to Witkin on either Evidence or Criminal Law, which applies to California and is slightly different than Federal, but I have no access to Federal treatises.
(d) [§2022] Objection to Line of Questions.
3 Witkin, Cal. Evidence (3th ed., 1986) Introduction of Evidence at Trial, §2022, p.1984.]
Where a good objection is made to a particular question and is overruled by the court, it need not be renewed if the same question is asked again. (Balcom v. Growers Warehouse Co. (1921) 55 C.A. 474, 482, 204 P. 39; Ev.C. 353, Comment; cf. Douglas v. Alabama (1965) 380 U.S. 415, 85 S.Ct. 1074, 1078, 13 L.Ed.2d 934 [repetitious futile objections to confession not required to safeguard review in United States Supreme Court]; 1 C.E.B., Civ. Proc. During Trial §11.21; C.E.B., Trial Objections 2d, §4.10.)
The practical problem is more difficult, however, where the objection is applicable to a further line of questions directed to the same or a different witness. It is time-wasting and a source of irritation for counsel to repeat mechanically the stated grounds in detail or even in abbreviated form (“the same objection”). It would seem reasonable to assume that the ruling would be the same and that further objection would therefore be futile. Thus, in Green v. Southern Pac. Co. (1898) 122 C. 563, 565, 55 P. 577, objection to the testimony of one witness was overruled, and later another witness testified to substantially the same matter, without objection. The court said: “Where a party has once formally taken exception to a certain line or character of evidence, he is not required to renew the objection at each recurrence thereafter of the objectionable matter arising at each examination of other witnesses; and his silence will not debar him from having the exception reviewed.”
California criminal law, in my understanding, allows for evidence to be admitted as broadly as under the US constitution.
Witkin on Cal Evidence section 2025 If a proper objection to the question is made and overruled it is unnecessary to move to strike the answer. (Short v. Frink (1907) 151 C. 83, 87, 90 P. 200