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To object or not to object: What is the consequence?
By Brian M. Hoffstadt

One of the cardinal tenets of trial procedure is the contemporaneous objection rule, which obligates lawyers (or self-represented litigants) to speak up - either by objecting or making an offer of proof - at the time an issue is being decided. Penal Code Section1259; Dimmick v. Dimmick, 58 Cal.2d 417 (1962); Federal Rule of Criminal Procedure 30(d), 52(a); Federal Rule of Civil Procedure 51(d), 61. The rule has teeth: In most instances, unpreserved rights are considered "forfeited" and are lost forever or, at best, reviewed with a jaundiced eye. The rule and its concomitant penalty are designed to avoid mistakes before they are made by giving lawyers an incentive to call the judge's attention to errors at a time when they are more easily corrected. In re Seaton, 34 Cal.4th 193 (2004).

The objective of this article and self-assessment test is to examine the duty and consequences of making or not making objections to trial court rulings. It will be seen that the contemporaneous objection rule is neither ubiquitous nor absolute. Indeed, it is important to understand which rights are exempt from the rule and when courts will overlook forfeiture of nonexempted rights. That is because exceptions to the rule - more than the rule itself - yield valuable insight into which rights the California and federal courts deem so critical that they will review them, absent an objection, and which rights competent counsel - whose job it is, as "captain of the ship" (In re Horton, 54 Cal.3d 82 (1991)), to make objections - actually protects.

The starting point for this analysis is the scope of the contemporaneous objection rule, which - except for objections to a court's subject matter jurisdiction that may be raised at any time (Sullivan v. Delta Airlines Inc., 15 Cal.4th 288 (1997); United States v. Cotton, 535 U.S. 625 (2002)) - is different in the California and federal courts, and it is also different in civil and criminal matters.

California entirely exempts two categories of objections from its contemporaneous objection rule. The first is jury instructions because, in the view of the California courts, it is the trial judge's independent duty to get the law right. Penal Code Section 1469; Green v. State of California, 42 Cal.4th 254 (2007). The extent of a judge's duty depends on the type of case: In civil cases, the trial judge's duty is to give the requested instructions properly. The judge has no duty to instruct on his or her own motion. Metcalf v. County of San Joaquin, 42 Cal.4th 1121 (2008).

But in criminal cases, the judge's duty is to instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case, even if not requested by either party. People v. Martinez, 47 Cal.4th 911 (2010). Even in criminal cases, however, there are limits. For example the judge does not have a duty to give "pinpoint" instructions without a request. People v. Anderson, 51 Cal.4th 989 (2011); compare People v. Gutierrez, 45 Cal.4th 789 (2009). And, under the doctrine of invited error, a defendant may not challenge any instructional error in an instruction if the defendant made a "conscious and deliberate tactical choice" to "request" the instruction as part of defendant's trial strategy. People v. Thornton, 41 Cal.4th 391 (2007).

The second category of nonforfeitable error in California includes errors that require a criminal defendant's affirmative assent on the record - namely, waiver of a jury trial and consent to a finding of manifest necessity allowing retrial despite double jeopardy. See People v. Saunders, 5 Cal.4th 580 (1993).

The federal courts, by contrast, have no carve-outs, and they subject objections of every kind to the contemporaneous objection rule. See United States v. Vonn, 535 U.S. 55 (2002).

The consequences of violating these rules also differ significantly between federal and state court.

In California, forfeited errors are not reviewed on appeal - either by the state courts or, as to any federal issues, by the U.S. Supreme Court. (The Supreme Court enforces California's contemporaneous objection rule on appeal because the rule's bar to review is an adequate and independent state ground supporting the state court's judgment on appeal. See Cone v. Bell, 556 US 449 (2009).

The consequences in federal court, however, are less severe on appeal. That is because these courts draw a distinction between rights that are waived (that is, affirmatively given up) and those that are forfeited (that is, not preserved) - and will review forfeited rights for "plain error." Federal Rule of Criminal Procedure 52(b); Federal Rule of Civil Procedure 51(d); United States v. Olano, 507 U.S. 725 (1993); compare People v. Simon, 25 Cal.4th 1082 (2001) (California courts refuse to review either waived or forfeited errors on appeal). "Plain error" review is very deferential: Under United States v. Olano, the litigant bears the burden of showing (i) that the error mattered, and (ii) that he or she is innocent or that "the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings."

As articulated, it is not an easy standard to meet. The high court has yet to hold that even errors considered "structural" - that is, the rights to appoint counsel, to represent one's self, and to retain counsel of choice, and the rights to an impartial judge, a public trial, a correct reasonable doubt instruction, and a properly selected grand jury - automatically meet the first of these two requirements (Puckett v. United States, 129 S. Ct. 1423 (2009)), and the lower federal courts are divided over whether structural errors automatically satisfy the second. Compare United States v. Jiminez Recio, 371 F.3d 1093 (9th Cir. 2004) with United States v. David, 83 F.3d 638 (4th Cir. 1996). And the plain error standard is to be applied even more "stringently" in civil cases. Tuli v. Brigham & Woman's Hosp., 656 F.3d 33 (1st Cir. 2011).

But demonstrating "plain error" is not impossible, as many courts - including the 9th U.S. Circuit Court of Appeals - regularly find such error and overturn sentences, probation violations, and occasionally convictions., United States v. Grant, 2011 U.S. App. Lexis 24065 (9th Cir. 2011); United States v. Sanchez, 659 F.3d 1252 (9th Cir. 2011).

The consequences of forfeiture last beyond appeal. In both California and federal courts, the sole avenue of review for civil litigants is the appeal - so forfeited errors not addressed on appeal are lost forever (unless the courts exercise their seldom-used residual authority to disregard the contemporaneous objection rule). See Air Mach. SRL v. Superior Court, 186 Cal.App.4th 414 (2010); Newport v. Fact Concerts, 453 U.S. 247 (1981).

Criminal defendants often have the right, after their appeal, to seek further relief through writs of habeas corpus in both state court (as to state defendants) and federal courts (as to both state and federal defendants). These courts possess a limited authority to excuse forfeited errors - namely, state courts on state habeas still review fundamental constitutional errors that "strike at the heart of the trial process," (In re Harris, 5 Cal.4th 813 (1993)), and federal courts that review state or federal convictions may still review errors if the defendant establishes "cause" for failing to properly object and resulting prejudice. Coleman v. Thompson, 501 U.S. 722 (1991); United States v. Frady, 456 U.S. 152 (1982) (plain error does not apply in federal habeas).

But these exceptions have been construed narrowly. Under In re Harris, in state habeas proceedings, only "structural" errors are likely to "strike at the heart of the trial process." And the primary means of overcoming a procedural default on federal habeas is to demonstrate that trial counsel was constitutionally ineffective - which, in turn, requires the defendant to establish that, but for counsel's nonstrategic failure to object, "there is a reasonable probability that . . . the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668 (1984). The federal courts are split over whether any of the "structural" errors will be automatically deemed to constitute ineffective assistance. Compare Bell v. Quintero, 256 F.3d 409 (6th Cir. 2001) reinstated (6th Cir. 2004) 368 F.3d 892 with Purvis v. Crosby, 451 F.3d 734 (11th Cir. 2006).

What this analysis indicates is that, through the application of the contemporaneous objection rule, the California and federal courts show greater concern with the accuracy of verdicts than with procedural regularity. That is because, with the exception of the small universe of "structural" errors in criminal cases, courts will intervene to review forfeited errors only if those errors likely affected the proceeding's outcome. (Malpractice liability similarly hinges on demonstration of an outcome-determinative impact. See Vixen v. Sweet, 30 Cal.4th 1232 (2003); Coscia v. McKenna & Cuneo, 25 Cal.4th 1194 (2001). This solicitude to the effect on outcome no doubt rests on the notion that "the law does not concern itself with trifles," but the unavoidable net effect is a doctrine that makes it much harder for criminal defendants facing overwhelming evidence of guilt, or civil litigants with weak cases, to have a proceeding honoring their rights if their lawyers do not timely object to violations of those rights.

Does this mean that competent counsel, by making proper objections, only preserve the rights that have no effect on the outcome of a case? Not at all.

To begin with, civil litigants have no second chance in California courts, only the watered-down "plain error" review in federal court, and no collateral review at all. Although the courts' greater willingness to overlook forfeitures in criminal cases springs from the greater stakes (the loss of liberty or life), the bottom line is that civil litigants with incompetent or inattentive lawyers have slim to no chance of obtaining relief - either on appeal or in a malpractice suit.

More importantly, in all cases, what may appear to be a nonoutcome-determinative objection in retrospect could have, if made in a timely fashion, substantially altered how the proceeding unfolded and thus changed the result. That is why it is crucial that litigants continue to have the ability to retain - and that indigent criminal defendants continue to be provided with - competent counsel.

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