EvidenceProf Blog

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

Wednesday, October 11, 2017

Supreme Court of Hawai'i Finds Co-Defendants Don't Have to Join Objections to Preserve Issues

Two defendants -- Lawrence L. Bruce and Justin McKinley -- are jointly tried in connection with "their alleged involvement in and benefit from the activities of a prostitute, the complaining witness (CW). In response to the prosecutor's comment during rebuttal closing

that CW was “somebody's daughter, she's somebody's friend, she's a mother, she's a woman, she is a person,” McKinley objected on grounds that “this is a little bit far beyond arguing the evidence.” Bruce did not join McKinley's objection, nor did he raise one of his own. McKinley's objection was overruled.

Has Bruce reserved the issue for appellate review? This was the question of first impression that the Supreme Court of Hawai'i addressed in its recent opinion in State v. Bruce, 2017 WL 4480038 (Hawai'l 2017). 

While this was a question of first impression in Hawai'i, the court noted that

Courts in other jurisdictions have adopted one of two approaches to resolve this issue. Several courts have held that when an objection by one co-defendant inures to the benefit of both defendants, the other co-defendant's failure to object or join in the objection does not waive the issue on appeal....

By contrast, other courts require a defendant to expressly join a co-defendant's objection, or independently raise his or her own objection, to preserve an issue on appeal.

Ultimately, the Supreme Court of Hawai'i

adopt[ed] the former approach over the latter for two reasons. First, to require all defendants, especially in cases where numerous defendants are being tried together, to chime in and affirmatively join in a co-defendant's objection, or object individually to the same issue, would impose upon courts a duplicative litany of redundant procedures that would disrupt the flow of the proceedings. Second, justice would not necessarily be served if a criminal defendant were denied the opportunity to raise an issue on appeal due to a mere technical error when the objection raised at trial also affected the defendant's case. “[T]he purpose of requiring a specific objection is to inform the trial court of the error.”...When a co-defendant raises an objection, this purpose is served, regardless of whether the other defendant joins the co-defendant's objection or objects independently. Therefore, we hold that an objection by a codefendant at trial sufficiently preserves the issue on appeal for another defendant tried in the same proceeding when the objection also applies to the non-objecting defendant's case, even if the non-objecting defendant does not join in the co-defendant's objection or object independently.

I agree with this conclusion. As the court noted, the purpose of requiring objections is so that the court is given notice of a potential issue and the opportunity to correct it. When one defendant raises an objection, this purpose is served, regardless of whether other defendants join in the objection. Therefore, I don't think that co-defendants should have to independently object or join in an objection.

-CM

http://lawprofessors.typepad.com/evidenceprof/2017/10/two-defendants-lawrence-l-bruce-and-justin-mckinley-are-jointly-tried-in-connection-with-their-alleged-involvement-in-a.html

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Comments

I can't believe other jurisdictions have ruled on the other side of this. This is clearly one of those technical loopholes which the prosecution is asking to have made into precedent for future use in conveniently advantageous pedantry.

Posted by: Paul | Oct 11, 2017 12:44:42 PM

Lol, Upon reflection, I like that for now. I think I'm going to call my hipster post-hardcore band "Conveniently Advantageous Pedantry"

Posted by: Paul | Oct 11, 2017 12:47:56 PM

On waiver, check out Kirkpatrick v Chappell 9th cir. 10/10 2017 DJDAR 9801

Posted by: Joan | Oct 12, 2017 11:12:08 AM

From Kirkpatrick v Chapelle, I liked the following line:

"At oral argument, however, the State took “inconsistent positions” on whether the waiver needed to satisfy these requirements, and eventually, in a post-argument letter, firmly changed its position and stated that it did not. Assuming that the state did not waive its right to make this tardy and inconsistent argument, its solitary citation to Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), does not compel or even support its newfound position. "

Was that intended to be a tongue and cheek remark about the state waiving the argument? lol I hope so, I like when there's a bit of humor buried deep within erudite and serious legal language.

Posted by: Paul | Oct 14, 2017 2:54:39 AM

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