Friday, February 04, 2005

Failure to Object

People v. Courson, 2005 WL 249988 (Tex. Ct. Apps. Feb. 3, 2005), holds that the defendant failed to preserve a confrontation issue by making an objection at trial. I wonder whether the court was too stringent in this case. It appears that the trial was held before Crawford was decided. As the court says, the confrontation right "is neither new nor novel." True, but the statement at issue was one made by the defendant's wife to the police after a domestic dispute. (The case did not involve that dispute; this was a shaken-baby case.) Assuming that the statement clearly fell within the excited utterance exception as Texas courts have applied that exception, a defendant not anticipating Crawford would have had little reason to make an objection; this is one context in which the chance of exclusion was minuscule before Crawford but is substantial now.


Andrew C. Fine said...

California courts have consistently excused trial counsels' failure to object to Crawford-type error in pre-Crawford trials. E.g., People v. Thoma, 2005 WL 170639 (Cal. App., 2 Dist., decided January 26, 2005); People v. Kilday, 20 Cal. Rptr. 3d 161 (Cal. App., 1 Dist. 2004). Other useful cases in this area (excusing counsel's failure to anticipate landmark rulings changing pre-existing law) are Reed v. Ross, 468 US 1 (1984) (excusing failure to raise claim on appeal in habeas case) and People v. Patterson, 39 NY2d 288, 294-296 (1976).

Anonymous said...

Two comments:

1. What are you doing posting commentary on the blog at 4:38 in the morning? Trying to make the rest of us feel guilty because we sleep occasionally?!

2. I've been telling my students for years that whenever a prosecutor offers an out-of-court statement, defense counsel should respond:

"ObjectionhearsayobjectionCOnfrontationClause" -- as if it was one word. So I have little sympathy for an attorney who, in a trial prior to Crawford, "didn't know" he or she should make a Confrontation Clause objection.

Cliff Fishman
Catholic University

Richard D. Friedman said...

Thanks to Andrew for those citations. Clifford has certainly been teaching his students prudent practice, though I can imagine some judges as having regarded the objection as frivolous before Crawford. I think counsel probably shouldn't be held to the standard of Fishman-tuaght lawyers.

As for the tmie of my posting, if it is any comfort, at 5:30 pm I was asleep on the couch in my office.

Andrew C. Fine said...

In a bizarre decision from Iowa, the court held that counsel's failure to object, pre-Crawford, on confrontation grounds when a responding police officer testified regarding statements made to him by the non-testifying victim in a domestic violence case, did not constitute ineffective assistance of counsel. State v. Jasperson, 2005 WL 291525 (Iowa App., decided 2/9/05 (unpublished)). The court recognized that an objection pre-Crawford would have been futile. However, the court simply affirmed the conviction, without explaining why it did not address the issue on plain-error or interest-of-justice grounds.