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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, July 13, 2011

Passive Aggressive?: Court Of Appeals Of Utah Finds Invited Errors Doctrine Precludes Rule 609(d) Appeal

Like its federal counterpart, Utah Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. 

As the recent opinion of the Court of Appeals of Utah in State, ex rel. P.N., 2011 WL 2670451 (Utah.App. 2011), makes clear, however, the proscriptive language of Rule 609(d) does not matter if the invited error doctrine applies.

In P.N., P.N. appealed from his adjudication of two counts of aggravated robbery and two counts of aggravated assault with a weapon or force. At trial,

During cross-examination of P.N., the prosecutor inquired about P.N.'s criminal history, and P.N. admitted to having "a history," whereafter defense counsel objected to the admittance of evidence pertaining to P.N.'s previous felony. In this case, the juvenile court judge was also the judge in the prior adjudication. The court informed defense counsel of this. Defense counsel, upon learning of the situation, did not request a recusal under section 63(b) of the Utah Rules of Civil Procedure. Instead, counsel affirmatively waived his objections to the admission of the prior adjudication evidence when he stated he would "[l]et that go because I think Your Honor has a memory and can't expunge that."

After his adjudication, P.N. appealed, claiming that the trial judge erred under Utah Rule of Evidence 609(d) by allowing for the admission of evidence of his previous felony. The Court of Appeals of Utah disagreed, finding that

When defense counsel's actions amount to an active, as opposed to a passive waiver of an objection, we may decline to consider the claimed error even if the error equates to plain error....A court may infer from the record whether defense counsel affirmatively waived the objection....Defense counsel's statement, in the case at hand, clearly demonstrates a decision to relinquish the objection to the prior adjudication evidence. As such, we do not consider this issue.

I kind of see the point of the Court of Appeals of Utah, but I kind of don't. The invited error doctrine makes sense because a party cannot create an evidentiary error and then complain about that error on appeal. But here, defense counsel initially objected to the admission of evidence of P.N.'s prior felony. It was then only after the trial judge informed defense counsel of his history with P.N. that defense counsel withdrew the objection. 

Thus, defense counsel did not really invite the error. He did not introduce the evidence himself, and he initially objected to the admission of the evidence. I would regard defense counsel's behavior as more passive than active.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/07/609d-state-ex-rel-pn-p3d-2011-wl-2670451utah-app2011.html

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Comments

Colin,

You are seeing an "invited error" ruling where there was none. The court relied only on "active" waiver [= knowing and voluntary??], not invited error, so I think your critique missed the point.

Fred

Posted by: Fred Moss | Jul 19, 2011 8:47:54 AM

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