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.