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 VOLUME 14 - CHAPTER 295
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295.3 Cognizability Of Instructional Error On Appeal: Raising Issues That Have Not Been Preserved Below

    295.3.1 Cognizability Under The Appellate Record

    295.3.1.1 Cognizability Of Instructional Error On Appeal: Plain Error
    295.3.1.2 Futile Objections Need Not Be Raised
    295.3.1.3 Correct Instruction Required Sua Sponte
    295.3.1.4 Duty To Correct Requested Defense Theory Instruction Which Is Incorrect Or Incomplete
    295.3.1.5 Objection By Codefendant May Be Sufficient
    295.3.1.6 "Defensive Act" Made In Light Of Court Ruling Does Not Waive Issue

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PRACTICE NOTE: Many jurisdictions allow claims to be considered on appeal even if not preserved below when the error constitutes "plain error" or violated the defendant's substantial rights. (See e.g., People of Territory Of Guam v. Alvarez (9th Cir. 1985) 763 F3d 1036, 1037 ["Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court"]; See also Williamson v. U.S. (5th Cir. 1964) 332 F2d 123, 126-32; Provenzano v. Dugger (FL 1990) 561 So2d 541, 547 ["fundamental" error may be considered]; Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-6(c); Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:16 [Charging The Jury-Exceptions] (West, 1999) [failure to request an instruction request or object to an instruction below may be reviewed on appeal "in the interests of justice"].)

    For purposes of analysis in federal court, a "plain" error (FRCP 52(b)) is one which affected the defendant's substantial rights. (U.S. v. Olano (1993) 507 US 725, 731-36 [113 SCt 1770; 123 LEd2d 508].) The reviewing court should "correct a plain forfeited error affecting substantial rights if the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." (Id. at 736.)

    In other words, "before an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’" (U.S. v. Bracey (9th Cir. 1995) 67 F3d 1421, 1431; see also U.S. v. Clements (5th Cir. 1996) 73 F3d 1330, 1337; U.S. v. Crawford (5th Cir. 1995) 52 F3d 1303, 1310 [appellant who raises an issue for the first time on appeal has the burden to show that there is actually an error, that it is plain ("clear" or "obvious"), and that it affects substantial rights]; U.S. v. Morfin (9th Cir. 1998) 151 F3d 1149, 1151; State v. Olander (ND 1998) 575 NW2d 658, 663 [once accused establishes that a forfeited plain error does affect substantial rights, appellate court has discretion to correct error and should correct it if it seriously affects fairness, integrity or public reputation of judicial proceedings].)

    See also generally, NCJIC 3.2.2 [Judge Has Ultimate Responsibility And Duty To Instruct On Legal Principles Applicable To The Case].

    See also generally, NCJIC 4.3.4.2 [Circumstances Where Cautionary/Limiting Instructions May Be Required On Court's Own Motion].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: An issue is not waived by failure to object if the objection would have been futile. (See e.g., Estelle v. Smith (1981) 451 US 454, 468 fn 12 [101 SCt 1866; 68 LEd2d 359]; Rupe v. Wood (9th Cir. 1996) 93 F3d 1434, 1440 [failure to make offer of proof excused where it would be redundant, unnecessary, or futile]; People v. Hill (CA 1998) 17 C4th 800, 820 [72 CR2d 656]; People v. Chavez (CA 1980) 26 C3d 334, 350 fn 5 [161 CR 762]; People v. Williams (CA 1976) 16 C3d 663, 667 fn 4 [128 CR 888].)

    Where the court is aware of an objection and any restatement of the objection would be a "pointless formality" such objection is not necessary to preserve the point for appeal. (See Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-6(c)(1); see also U.S. v. Davis (5th Cir. 1978) 583 F2d 190, 194-95.)

    For example, where one codefendant has already obtained a ruling from the court regarding an instruction and the other codefendant is in the same position, no further objection or request is required since to do so would be fruitless. (See e.g., U.S. v. Bagby (9th Cir. 1971) 451 F2d 920, 926; see also U.S. v. Dinome (2nd Cir. 1996) 86 F3d 277, 281; see also Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 17:3.)

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: There may be certain fundamental instructions that the trial court is required to give sua sponte. (See NCJIC 3.2.5 [Sua Sponte Duty To Instruct On Defense Theory Supported By Substantial Evidence]; see also NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte]; see also NCJIC 4.3.2.2 [Circumstances Where Cautionary/Limiting Instructions May Be Required On Court's Own Motion]; see also NCJIC 107.2.7 [Exfelon In Possession Of Firearm: Due Process Requires Sua Sponte Instruction Regarding Stipulation Of Underlying Felony]; see also NCJIC 296.2.6.1 [Failure To Instruct Sua Sponte On Lesser Included Offense As Violation Of Federal Due Process].)  The failure of the court to fulfill its sua sponte duty to instruct should be reviewable on appeal even if no objection was made. (See e.g., McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 836; see also People v. Marquez (9th Cir. 1992) 963 F2d 1311, 1315 [failure to orally instruct jury on elements of the offense is per se reversible error; giving jury documents describing elements of aggravated assault and weapons possession was insufficient]; People v. Croy (CA 1985) 41 C3d 1, 6 [221 CR 592] [reversible error to instruct jury on the elements of attempted murder by referring the jury to definitions of murder which incorporated principles of murder not requiring a finding of malice or specific intent to kill]; State v. Miller (WV 1990) 400 SE2d 611, 612 [trial court must instruct jury on all essential elements of offenses charged, and failure of trial court to instruct jury on essential elements deprives accused of his fundamental right to fair trial, and constitutes reversible error]; People v. Stewart (CA 1976) 16 C3d 133 [127 CR 117].) Otherwise, the sua sponte duty would be meaningless since the reviewing court would have no means of providing recourse for the trial court's breach of duty.

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: If the instructions submitted appear to the court not to be in proper form, or fully or correctly state the issues, still, if the instructions submitted are sufficient to call the court's attention to the material issue raised and which has a basis of support in the evidence, it is the duty of the court to prepare and to give a proper instruction on the issue thus presented to the court. (Crossett v. State (OK 1952) 252 P2d 150, 164; see also Williams v. State (OK 1976) 554 P2d 842, 847 [definition of "proximate cause" is not commonly understood term].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: See Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-6(c)(1); see also U.S. v. White (5th Cir. 1979) 589 F2d 1283, 1290, fn 14 [objection by codefendant is sufficient to preserve error].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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 VOLUME 14 - CHAPTER 295

PRACTICE NOTE: Once the court has made a ruling with respect to a particular issue in response to an objection or request by defense counsel, counsel does not waive the issue by taking a "defensive act" in light of the court's ruling. (See e.g., People v. Turner (CA 1990) 50 C3d 668, 705 fn 18 [268 CR 706]; see also People v. Sam (CA 1969) 71 C2d 194, 207 [77 CR 804] ["An attempt to attack the merits of damaging testimony to which a party has unsuccessfully objected has long been recognized as a necessary and proper trial tactic, and it may not be deemed a waiver of a continuing objection"]; U.S. v. Marshall (5th Cir. 1985) 762 F2d 419, 425; Gowan v. Batson (MI 1974) 288 So2d 468, 470 [continuing objection not waived by cross-examining one of plaintiff's witnesses with respect to code].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].