In State v. Jones, decided yesterday, the SC Supreme Court changed the error preservation rules for pretrial motions.
The court’s reasoning makes sense, and it’s great that the court is trying to get rid of nonsensical procedural rules that obstruct justice and unnecessarily burden court resources.
But did they simplify the error preservation rules or make them more complicated?
SC Supreme Court Changes Error Preservation Rules for Pretrial Motions
What was the rule before State v. Jones?
If you object to testimony or evidence, it must be 1) on the record and 2) contemporaneous.
If the defense makes a pretrial motion to suppress evidence or testimony and loses, the defense must still object on the record each time the prosecution moves to introduce the evidence or each time a witness speaks the objectionable testimony.
Even though you fully argued the motion on the record before the trial began, the court made a final decision to deny your motion, and nothing has changed during the trial, you must keep objecting each time the issue arises. If you do not, the issue is not preserved for appeal, and the appellate courts will refuse to consider it.
The result, pre-Jones?
1) As the SC Supreme Court says, it results in a game of “Gotcha,” where, even though there was no question that the defense objected, and an issue was fully briefed and decided before trial began, the defendant cannot raise the issue on appeal if their attorney forgets to raise a contemporaneous objection when the evidence is offered during trial, and
2) After spending a year or more on direct appeal, which will be denied because the defendant did not preserve their issue, the case will spend another year or more in PCR proceedings where the defendant must argue that their attorney was ineffective for failing to raise a contemporaneous objection.
In the end, the courts should reach the same result. It just takes more time – potentially years, takes up more court resources as multiple proceedings are convened for something that could have been decided on direct appeal, and it requires more personnel – PCR counsel, PCR judges, and an attorney general to defend the PCR action – that would have been unnecessary if the issue had just been decided on direct appeal.
What is the New Rule?
In State v. Jones, the SC Supreme Court held that, when a court rules after a hearing on a constitutional issue, that ruling is final. Unless something changes during trial, a contemporaneous objection is not necessary to preserve the issue for appeal:
…we believe a different approach is warranted where a court rules after a hearing on a constitutional issue. Under those circumstances, the ruling is final and, unless something changes during trial that may reasonably cause the trial judge to alter the pretrial ruling, no further objection is required to preserve the issue for appellate review.
The facts of State v. Jones are not uncommon – the defense moved to suppress evidence before the trial began, and the court denied the motion after a full hearing. Before trial and at the end of the trial, defense counsel informed the court that the defense continued to object to the admission of the evidence, but defense counsel did not contemporaneously object when the evidence was introduced as evidence or when a witness referred to the evidence.
Here, the pretrial evidentiary ruling was rendered following a full hearing on Jones’s motion to suppress. Both sides submitted briefs, presented testimony to the court, and argued their respective positions. Just before trial, although defense counsel noted his continuing disagreement with the prior denial of his motion to suppress, no new hearing was held, and, during trial, no new facts arose which would have justified another hearing on the matter. While there is no question the trial judge could have changed the prior ruling on the motion to suppress based upon new matter coming to light, requiring attorneys to continue to object when a ruling is clearly final would not serve the purpose of our rules of preservation; rather, it would merely foster a game of “gotcha,” where form is elevated over substance.
The result?
If you argue a pretrial motion to suppress based on a constitutional issue, you no longer need to contemporaneously object when the evidence is admitted during trial – the issue will be preserved for appeal.
Are the Error Preservation Rules Less Complicated Now?
Not really.
They are probably more complicated now because the court specified that only constitutional issues will be preserved for trial – which means that any other issue raised pretrial must be objected to contemporaneously to be preserved for appeal.
If some attorneys found it difficult to remember to contemporaneously object to the admission of evidence, how difficult will it be for those attorneys to decide whether they must contemporaneously object because the issue they raised pretrial was not a constitutional issue?
For example:
1) You make a pretrial motion to suppress a statement obtained in violation of the Fifth and Sixth Amendments. The court denies the motion, nothing changes during trial, and so you do not object contemporaneously. Your issue is preserved for appeal.
2) You make a pretrial motion to suppress evidence under Rule 402 because it is not relevant, Rule 403 because it is more prejudicial than probative, Rule 404 because it is inadmissible character evidence, Rule 410 because it was the subject of plea negotiations, Rule 602 because the witness did not have personal knowledge of the matter, Rule 701 because a lay witness is trying to give an expert opinion, or Rule 1002 because the state is attempting to introduce a duplicate of a document. The court denies the motion, and nothing changes during trial, but you still must object contemporaneously to preserve the issue for appeal.
3) You make a pretrial motion to exclude a hearsay statement under Rule 802 or a pretrial motion to exclude mention of the defendant’s prior convictions under Rule 404(b). Are you required to make a contemporaneous objection to preserve the issue for appeal because the motion is based on a rule of evidence, or are you excused from making a contemporaneous objection because your motion is also based on the Sixth Amendment right to confrontation or a violation of Due Process?
What’s the result?
Most attorneys are still going to make contemporaneous objections because, during the stress and chaos of trial, they won’t want to take any chance that their issue is not preserved. When the attorney does not make a contemporaneous objection, some defendants’ issues will be preserved because there was a constitutional basis for their motion while others will not be preserved because their motion was based on a court rule or some other grounds.
What is different about motions based on constitutional arguments, and why does the court’s reasoning not apply to all pretrial motions?
In the name of simplifying the error preservation rules, didn’t the court just make them more complicated?
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