Constitutional Vanguard: Answering Some of Your Questions About Criminal Law
This one, published yesterday, is for the paid subscribers. In it, I answer three questions:
- Would the prosecution be able to appeal a shockingly light sentence (e.g. probation for a rape), and then use the judge’s rulings for the defense as evidence of bias?
- If the prosecution asks of a witness, a question to which the defense should object, but fails (for any reason e.g. “senior moment”), let us refer to this failure as a “non-call”, and a guilty verdict is reached, is the defense afforded the opportunity to include an object to that question, on appeal? On what would it turn?
- [I]t’s one thing for a judge to be hard on a prosecutor in proving guilt beyond reasonable doubt, but a judge can also drive the verdict with his rulings on evidence, protocols and conduct, and the prosecution can’t appeal because of double [jeopardy], no?
I hope the answers were illuminating. Post is here. Subscribe here.
There is “plain error” which is preserved for direct appeal if it is shown on the record, regardless of whether it was objected to at trial or raised in a post-trial motion. There is also “error per se” which will reverse a conviction and send the case back for a new trial without analysis of whether it made a difference in the case. The 5-4 have narrowed the scope of error per se in federal cases, but I don’t know if it will make a difference in state appellate courts.
In Illinois, the State is entitled to interlocutory appeals from adverse rulings in defense motions to suppress evidence, but those are different creatures than objections at trial. They involve the Exclusionary Rule for Constitutional violations, and are decided prior to trial.
Also, they should not be confused with motions in limine which involve rules of evidence but not the exclusionary rule. Generally, neither party may appeal those interlocutorily and only the defendant after judgment. I say “generally” because I’m aware of places and cases where the judge can certify the question to the appellate court.
The Rittenhouse trial provides a couple of good examples. The first prosecutorial error involved an attempted Constitution violation. Binger tried to impeach Rittenhouse’s testimony with his prior silence. It had not been the subject of either a motion to suppress nor a motion in limine. The judge thought the prosecutor should know better. “Fifty year old case”, he said.
The second, the “brazen” one, had been the subject of a motion in limine from what I had gathered. The judge had ruled that “propensity”, whether of the quick or the dead, would not be an issue at trial. Binger thought that the defense had opened the door (yeah, right, whatever) and the judge reminded him that his courtroom is not a Godfather internet meme and he could not count on forgiveness — he needed permission.
The first one would have been plain error and even error per se. But the defense was not going to sit on their hands and let their client rot in prison for three to five years while the appellate courts pondered the matter. The second one was run of the mill error, motion in limine notwithstanding. Waived on appeal if not raised in the trial court. And even if preserved the appellate court could decide that it made no difference in the outcome of the case.
And neither event, in and of itself, was prosecutorial misconduct that would subject the prosecutors to discipline under the Canons of Ethics and Rules of Professional Conduct. No lawyer is required to be perfect. (Think about it for a minute.) The court would have needed to find a specific intent on the part of the prosecution to provoke the defense into asking for a mistrial.nk (1d9030) — 11/22/2021 @ 6:18 am
Thanks, nk.Kevin M (ab1c11) — 11/22/2021 @ 10:14 pm