DOCSLIB.ORG

Plain Error - Harmless Error

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Plain Error - Harmless Error WAIVER - PLAIN ERROR - HARMLESS ERROR .................................. 1 §54-1 Forfeiture ..................................................................................................... 1 §54-1(a) Generally ........................................................................................... 1 §54-1(b) Application of the Forfeiture Rule .............................................. 5 §54-1(b)(1) No Trial Objection; Delayed Trial Objection; Withdrawn Objection ........................................................................... 5 §54-1(b)(1)(a) Issue Forfeited ............................................................ 5 §54-1(b)(1)(b) Issue Not Forfeited .................................................... 8 §54-1(b)(2) Issue Raised in a Pretrial Motion in Limine ................ 12 §54-1(b)(3) Issue Not Raised in a Post-Trial Motion; Post-Trial Motion Untimely ................................................................................. 13 §54-1(b)(3)(a) Issue Forfeited .......................................................... 13 §54-1(b)(3)(b) Issue Not Forfeited .................................................. 16 §54-1(b)(4) Issue Not Raised in the Trial Court; Issue Raised for the First Time on Direct Appeal; Issue Not Subject to Forfeiture ............................................................................................. 19 §54-1(b)(4)(a) Issue Forfeited .......................................................... 19 §54-1(b)(4)(b) Issue Not Forfeited .................................................. 24 §54-1(b)(5) Objection on a Specific Ground; Objection on an Inconsistent or Different Ground ................................................... 28 §54-1(b)(5)(a) Generally .................................................................... 28 §54-1(b)(5)(b) Issue Forfeited .......................................................... 29 §54-1(b)(5)(c) Issue Not Forfeited .................................................. 30 §54-1(b)(6) General Objection ............................................................... 32 §54-1(b)(6)(a) Generally .................................................................... 32 §54-1(b)(6)(b) Issue Forfeited .......................................................... 32 §54-1(b)(6)(c) Issue Not Forfeited .................................................. 33 i §54-1(b)(7) Agreed to or Invited Error; Stipulated Evidence ........ 34 §54-1(b)(7)(a) Generally .................................................................... 34 §54-1(b)(7)(b) Issue Forfeited .......................................................... 36 §54-1(b)(7)(c) Issue Not Forfeited .................................................. 40 §54-1(b)(8) Basis for Objection is Trial Judge’s Conduct ............... 42 §54-1(b)(9) Forfeiture During Appeal – Issue Not Raised in Original Appellate Brief, Reply, PRH, PLA .................................. 45 §54-1(b)(9)(a) Issue Forfeited .......................................................... 45 §54-1(b)(9)(b) Issue Not Forfeited .................................................. 47 §54-1(b)(10) Forfeiture in Collateral Proceedings ............................. 50 §54-1(b)(10)(a) Issue Forfeited .......................................................... 50 §54-1(b)(10)(b) Issue Not Forfeited .................................................. 51 §54-1(b)(11) Forfeiture by the State ...................................................... 53 §54-1(b)(11)(a) Issue Forfeited .......................................................... 53 §54-1(b)(11)(b) Issue Not Forfeited .................................................. 57 §54-1(b)(12) Other Considerations ........................................................ 59 §54-1(b)(12)(a) Issue Forfeited .......................................................... 59 §54-1(b)(12)(b) Issue Not Forfeited .................................................. 60 §54-1(c) Forfeiture Not Applicable – Voidness and Constitutional Claims ......................................................................................................... 61 §54-2 Plain Error ................................................................................................. 64 §54-2(a) Generally ......................................................................................... 64 §54-2(b) Clear and Obvious Error ............................................................. 66 §54-2(c) Closely Balanced Prong ............................................................... 68 §54-2(d) Substantial Rights Prong ............................................................ 72 ii §54-2(e) Application of Plain Error Rule ................................................. 81 §54-2(e)(1) Jury Selection Error .......................................................... 81 §54-2(e)(1)(a) Plain Error ................................................................ 81 §54-2(e)(1)(b) No Plain Error .......................................................... 84 §54-2(e)(2) Prosecutorial Misconduct ................................................. 85 §54-2(e)(2)(a) Plain Error ................................................................ 85 §54-2(e)(2)(b) No Plain Error .......................................................... 89 §54-2(e)(3) Evidentiary Issues .............................................................. 91 §54-2(e)(3)(a) Plain Error ................................................................ 91 §54-2(e)(3)(b) No Plain Error .......................................................... 97 §54-2(e)(4) Trial Judge’s Remarks ....................................................... 99 §54-2(e)(4)(a) Plain Error ................................................................ 99 §54-2(e)(4)(b) No Plain Error .......................................................... 99 §54-2(e)(5) Jury Instruction Error .................................................... 100 §54-2(e)(5)(a) Plain Error .............................................................. 100 §54-2(e)(5)(b) No Plain Error ........................................................ 107 §54-2(e)(6) Sentencing Errors ............................................................ 110 §54-2(e)(6)(a) Plain Error .............................................................. 110 §54-2(e)(6)(b) No Plain Error ........................................................ 114 §54-2(e)(7) Other .................................................................................... 116 §54-2(e)(7)(a) Plain Error .............................................................. 116 §54-2(e)(7)(b) No Plain Error ........................................................ 120 §54-3 Harmless Error and Structural Error ............................................... 121 §54-3(a) Generally ....................................................................................... 121 iii §54-3(b) Structural Error .......................................................................... 124 §54-3(c) Non-Structural Constitutional Error – Harmless Beyond a Reasonable Doubt Standard ............................................................. 126 §54-3(d) Factors in Harmless Error Analysis ........................................ 130 §54-3(d)(1) Whether the Evidence Is Overwhelming or Closely Balanced ............................................................................................. 130 §54-3(d)(1)(a) Harmless Error ....................................................... 130 §54-3(d)(1)(b) Not Harmless Error ............................................... 134 §54-3(d)(2) Whether the Error Could Have Affected The Witness’s Credibility in a Case in Which Credibility is Crucial to the Verdict 139 §54-3(d)(2)(a) Harmless Error ....................................................... 139 §54-3(d)(2)(b) Not Harmless Error ............................................... 139 §54-3(d)(3) Whether the Error Is of a Substantial or Insubstantial Nature 140 §54-3(d)(3)(a) Harmless Error ....................................................... 140 §54-3(d)(3)(b) Not Harmless Error ............................................... 141 §54-3(d)(4) Whether the Properly-Admitted Evidence Is Similar to or Cumulative of the Erroneously-Admitted or Erroneously- Excluded Evidence ........................................................................... 141 §54-3(d)(4)(a) Harmless Error ....................................................... 141 §54-3(d)(4)(b) Not Harmless Error ............................................... 143 §54-3(d)(5) Whether Corrective Action Occurred .......................... 144 §54-3(d)(5)(a) Harmless Error ....................................................... 144 §54-3(d)(5)(b) Not Harmless Error ............................................... 144 §54-3(d)(6) Whether the Error was Repeated or Was Merely a Single, Isolated Incident ................................................................. 146 §54-3(d)(6)(a) Harmless Error ....................................................... 146 iv §54-3(d)(6)(b) Not Harmless Error ............................................... 146 §54-3(d)(7) Whether the Error Was Emphasized or Highlighted 146 §54-3(d)(7)(a) Harmless Error ....................................................... 146 §54-3(d)(7)(b) Not Harmless Error ............................................... 146 §54-3(d)(8) Whether the Cumulative Errors Were Prejudicial ... 147 §54-3(d)(8)(a) Harmless Error ....................................................... 147 §54-3(d)(8)(b) Not Harmless
Load more

Recommended publications
  • Lorain V. Rubenstein, 2019-Ohio-3417.]
    [Cite as Lorain v. Rubenstein, 2019-Ohio-3417.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN ) CITY OF LORAIN, OHIO C.A. No. 18CA011323 Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE ANITA RUBENSTEIN LORAIN MUNICIPAL COURT COUNTY OF LORAIN, OHIO Appellant CASE No. 2016CRB01260 DECISION AND JOURNAL ENTRY Dated: August 26, 2019 CARR, Judge. {¶1} Appellant, Anita Rubenstein, appeals the judgment of the Lorain Municipal Court. This Court reverses and remands. I. {¶2} This matter arises out of an incident that occurred at Lorain County Health and Dentistry on April 19, 2016. A customer service representative at the health center called 911 that day and reported that a disgruntled patient had slammed the glass window at the reception desk, causing the glass to shatter. The customer service representative identified Rubenstein as the individual who had shattered the glass. {¶3} Rubenstein was charged with one count of criminal damaging or endangering in violation of R.C. 2909.06(A)(1), a misdemeanor of the second degree. A warrant on the complaint was executed more than a year later. Rubenstein entered a plea of not guilty to the charge. After receiving appointed counsel, Rubenstein successfully moved for new appointed 2 counsel. When that attorney subsequently withdrew, a third attorney was appointed to represent Rubenstein. Rubenstein filed a written motion to change her plea to not guilty by reason of insanity but that motion was ultimately withdrawn. On February 28, 2018, Rubenstein filed a written jury demand. Rubenstein ultimately elected to represent herself at trial with appointed counsel serving as standby counsel.
    [Show full text]
  • Evidence—Conduct of Counsel Is Reversible Error
    Buffalo Law Review Volume 11 Number 1 Article 76 10-1-1961 Evidence—Conduct of Counsel Is Reversible Error Louis H. Siegel Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Evidence Commons Recommended Citation Louis H. Siegel, Evidence—Conduct of Counsel Is Reversible Error, 11 Buff. L. Rev. 206 (1961). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol11/iss1/76 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. BUFFALO LAW REVIEW credibility of his own witness by showing him to be unworthy of belief. How- ever, since counsel was taken by surprise, he should be permitted to interrogate as to prior inconsistent statements to refresh recollection, to draw out an explanation, and to show the witness his error. However, nowhere in this case does the Court make any mention of surprise and nowhere does the opinion indicate that the district attorney made any showing of surprise at the trial. The question was raised by counsel for defendant in his brief on appeal, but the Court, for some reason chose not to discuss it. Of course, a discussion of surprise was not absolutely necessary to the holding of the case as the Court held that the prior inconsistent statements were not used to refresh recollection, but it seems that some mention of surprise was in order since it has been held to be a necessary element of the doctrine.
    [Show full text]
  • A Primer on Prejudicial Error: the Applicable Tests and How to Satisfy Them
    A PRIMER ON PREJUDICIAL ERROR: THE APPLICABLE TESTS AND HOW TO SATISFY THEM By: Dallas Sacher (slightly edited and presented by Paul Couenhoven) INTRODUCTION As is recognized by any experienced appellate practitioner, the main obstacle in winning an appeal is not to demonstrate error, but to establish the error compels reversal. The purpose of this article is to assist appellate counsel in persuading an appellate court that either precedent or basic fairness require that reversal of a conviction or sentence. This article has a dual focus. First, an attempt has been made to set forth the applicable standards of prejudice. Second, the article also contains some thoughts as to how these standards may be satisfied. With respect to this second aspect of the article, I have also included a discussion suggesting how "routine" state law error may be successfully categorized as federal constitutional error. Given the reluctance of most California state courts to find reversible error, it is incumbent upon appellate counsel to raise and exhaust any federal issue which will allow for the filing of a federal petition for writ of habeas corpus. Finally, the reader who desires additional discussion may wish to review Charles Sevilla's excellent 1981 article entitled "A Pool of Prejudice: Prejudicial, Reversible And Harmless Errors on Appeal.” The article can be found in the 1982 edition of the State Public Defender's Criminal Appellate Practice Manual. Although the article is dated, it contains an 1 authoritative section on case specific factors which may be used to show prejudice in a particular appeal. I. ERRORS THAT ARE REVERSIBLE PER SE.
    [Show full text]
  • When, If Ever, Does Evidentiary Error Constitute Reversible Error
    Loyola of Los Angeles Law Review Volume 25 Number 3 Symposium: Does Evidence Law Article 17 Matter? 4-1-1992 When, If Ever, Does Evidentiary Error Constitute Reversible Error Margaret A. Berger Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation Margaret A. Berger, When, If Ever, Does Evidentiary Error Constitute Reversible Error, 25 Loy. L.A. L. Rev. 893 (1992). Available at: https://digitalcommons.lmu.edu/llr/vol25/iss3/17 This Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. WHEN, IF EVER, DOES EVIDENTIARY ERROR CONSTITUTE REVERSIBLE ERROR? MargaretA. Berger * I. INTRODUCTION When asked by the organizers of this Symposium to think about whether evidence rules matter, I elected to translate the topic into one considerably narrower: when, if ever, do evidence rules matter once the trial is over and the case is on appeal? Since I was also promised that I need not write a conventional law review article replete with state-of-the- art footnotes, I confess at the outset that my conclusions rest on a fairly narrow universe of 1990 appellate opinions, as well as some recent schol- arly commentary and personal experience. I hope that others will find some of these remarks of sufficient interest to pursue the topic further.
    [Show full text]
  • Comparative Negligence - Panacea Or Pandora's Box 1 J
    UIC Law Review Volume 1 Issue 2 Article 3 Winter 1968 Comparative Negligence - Panacea or Pandora's Box 1 J. Marshall J. of Prac. & Proc. 270 (1968) Kevin T. Martin Richard J. Phelan John H. Scheid Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Law Commons Recommended Citation Kevin T. Martin, Comparative Negligence - Panacea or Pandora's Box 1 J. Marshall J. of Prac. & Proc. 270 (1968) https://repository.law.uic.edu/lawreview/vol1/iss2/3 This Comments is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. COMMENTARY COMPARATIVE NEGLIGENCE - PANACEA OR PANDORA'S BOX? By RICHARD J. PHELAN* KEVIN MARTINt JOHN SCHEID$ In Maki v. Frelk' the Illinois Appellate Court held that a complaint alleging "that at times relevant hereto if there was any negligence on the part of the plaintiff or the plaintiff's decedent it was less than the negligence of the defendant, Calvin Frelk, when compared, ' 2 will withstand a motion to dismiss for failure to state a cause of action, even though the complaint admits that the plain- tiff may have been guilty of a lesser degree of negligence which proximately contributed to his injuries. Prior to this decision, the complaint would have been dismissed. Considering the his- tory of the case, this decision may be a prelude to the Illinois Supreme Court's adoption of a comparative negligence system in Illinois.3 The Maki case was initially appealed to the Illinois Supreme Court which found no constitutional issues on direct appeal but transferred the case to the appellate court to consider "the ques- tion of whether, as a mzatter of justice and public policy, the rule should be changed.' ' 4 The appellate court, in reaching its decision, reviewed the arguments made by the proponents and opponents of comparative negligence.
    [Show full text]
  • Criminal Law -- Examination of Record for Reversible Error Upon Court's Own Motion in Capital Cases Daniel L
    NORTH CAROLINA LAW REVIEW Volume 31 | Number 3 Article 6 4-1-1953 Appeal and Error -- Criminal Law -- Examination of Record for Reversible Error Upon Court's Own Motion in Capital Cases Daniel L. Bell Jr. Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Daniel L. Bell Jr., Appeal and Error -- Criminal Law -- Examination of Record for Reversible Error Upon Court's Own Motion in Capital Cases, 31 N.C. L. Rev. 300 (1953). Available at: http://scholarship.law.unc.edu/nclr/vol31/iss3/6 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. NORTH CAROLINA LAW REVIEW [Vol. 31 Appeal and Error-Criminal Law-Examination of Record for Reversible Error Upon Court's Own Motion in Capital Cases' The general function of an appellate court is to review the rulings of a lower court for the purpose of determining whether or not reversible error has been committed.1 Accordingly, the North Carolina Supreme Court will look into the charge of the trial judge for those errors as- signed 2 and discussed3 in the appellant's brief which were (1) reserved by timely objections during the trial,4 and (2) some which were not ob- jected to during the trial provided they come within certain classes, such as a misstatement of the law by the trial judge,5 or an expression of an opinion by the trial judge,6 or an inclusion in the judge's summa- tion of the evidence of a material fact not properly before the court * All capital cases appearing herein are designated by an asterisk (*).
    [Show full text]
  • Chapter 1: Pretrial Release
    Ch. 12: Right to Counsel 12.6 Waiver of Counsel A. Faretta Right to Self-Representation Generally. Implicit in the Sixth Amendment right to counsel is the right to reject counsel and represent oneself. See Faretta v. California, 422 U.S. 806 (1975) (criminal defendant has Sixth Amendment right to refuse counsel and conduct his or her own defense); State v. Thacker, 301 N.C. 348 (1980). But cf. Martinez v. Court of Appeal of California, 528 U.S. 152 (2000) (declining to recognize constitutional right of self-representation on direct appeal of criminal conviction but also recognizing that appellate courts may allow defendant to represent self). Any waiver of counsel must be voluntarily and understandingly made. “[T]he waiver of counsel, like the waiver of all constitutional rights, must be knowing and voluntary, and the record must show that the defendant was literate and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will.” Thacker, 301 N.C. at 354; see also 3 LAFAVE, CRIMINAL PROCEDURE § 11.5(d), at 752–59 (discussing circumstances in which court need not honor defendant’s request to proceed pro se). In some instances, a defendant may waive the right to self-representation by delay in asserting it. Compare State v. Wheeler, 202 N.C. App. 61 (2010) (not error for trial court to deny defendant’s motion to discharge counsel after defendant waived counsel, then requested appointed counsel for jury selection; court expressly told defendant he would not be permitted to discharge counsel again, and defendant tried to discharge counsel after trial began), with State v.
    [Show full text]
  • 1 in the COURT of APPEALS of the STATE of IDAHO Docket No
    IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 43260 STATE OF IDAHO, ) 2017 Opinion No. 38A ) Plaintiff-Respondent, ) Filed: September 6, 2017 ) v. ) Karel A. Lehrman, Clerk ) IDA PEREZ VASQUEZ, ) AMENDED OPINION THE ) COURT’S PRIOR OPINION Defendant-Appellant. ) DATED July 3, 2017, ) IS HEREBY AMENDED Appeal from the District Court of the Sixth Judicial District, State of Idaho, Power County. Hon. Stephen S. Dunn, District Judge. Judgment of conviction, vacated and case remanded. Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. ________________________________________________ HUSKEY, Judge Ida Perez Vasquez appeals from the judgment of conviction following a bench trial where she was found guilty of one count of intimidating a witness, in violation of Idaho Code § 18- 2604(3). Vasquez argues she was deprived of her state and federal constitutional right to a jury trial because although her trial counsel waived her right to a jury trial, Vasquez never personally waived such right, either orally or in writing. We vacate the judgment of conviction and remand the case for further proceedings consistent with this opinion. I. FACTUAL AND PROCEDURAL BACKGROUND In 2009, D.P. made allegations of sexual abuse against her paternal uncle, but later recanted those allegations. D.P.’s father, paternal uncle, and Vasquez are all siblings. In 2012, D.P. disclosed additional acts of sexual abuse by the same uncle. Because of the new allegations, police officers again investigated the 2009 allegations.
    [Show full text]
  • Sweports, Ltd V. Abrams
    2021 IL App (1st) 200139-U FOURTH DIVISION June 30, 2021 No. 1-20-0139 NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________ SWEPORTS, LTD., UMF CORPORATION, and ) Appeal from the GEORGE CLARKE, ) Circuit Court of ) Cook County Plaintiffs-Appellants, ) ) v. ) No. 18 L 5737 ) LEE ABRAMS, TINA WHITE, MICHAEL O’ROURKE, ) MICHAEL MOODY, O’ROURKE & MOODY, an Illinois ) Honorable law partnership, JOHN DORE, ANDREW CHENELLE, ) Thomas R. Mulroy, Jr., and NEAL WOLF, ) Judge Presiding. ) Defendants-Appellees. ) ______________________________________________________________________________ JUSTICE REYES delivered the judgment of the court. Presiding Justice Gordon and Justice Martin concurred in the judgment. ORDER ¶ 1 Held: Affirming the judgment of the circuit court of Cook County dismissing the plaintiffs’ claims for abuse of process, tortious interference with prospective economic advantage, prima facie tortious conduct, and conspiracy. ¶ 2 Plaintiffs Sweports Ltd. (Sweports), UMF Corporation (UMF), and George Clarke (Clarke) filed a complaint in the circuit court of Cook County against defendants Lee Abrams (Abrams), Tina White (White), Michael O’Rourke (O’Rourke), Michael Moody (Moody), 1-20-0139 O’Rourke & Moody, an Illinois law partnership (O&M), John Dore (Dore), Andrew Chenelle (Chenelle),1 and Neal Wolf (Wolf). The complaint alleged, in part, that the defendants engaged in vexatious litigation for the purpose of forcing the liquidation of Sweports, obtaining control of UMF, and coercing Clarke out of control of the companies. The plaintiffs asserted claims for abuse of process (count I), tortious interference with prospective economic advantage (count II), prima facie tortious conduct (count III), and conspiracy (count IV).
    [Show full text]
  • Requirements and the Supreme Court Changes Citation Formats
    Illinois Association of Defense Trial Counsel Springfield, Illinois | www.iadtc.org | 800-232-0169 IDC Quarterly | Volume 21, Number 3 (21.3.32) Appellate Practice Corner By: Brad A. Elward Heyl, Royster, Voelker & Allen, P.C., Peoria The First District Revisits Rule 304(a) Requirements and the Supreme Court Changes Citation Formats While decisions reporting on appellate issues seem to be rare, we have one for this issue. In Palmolive Tower Condominiums, LLC v. Simon, the appellate court dismissed a party’s appeal for want of a final and appealable order, specifically finding that the circuit court’s statement, “[t]his order is final and appealable,” was incomplete and, therefore, failed to confer appellate jurisdiction under Rule 304(a). Rule 304(a) says, in part: If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. … In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.
    [Show full text]
  • Wake Up! the Proper Error Analysis for the Case of a Sleeping Judge [State V
    Wake Up! The Proper Error Analysis for the Case of a Sleeping Judge [State v. Johnson, 391 P.3d 711 (Kan. App. 2017), cert. granted Sept. 29, 2017.] Morgan Hammes Summary: The Kansas Court of Appeals held when a judge falls asleep on the bench it constitutes a structural error because it permeates the entire trial. However, the U.S. Supreme Court has only formally recognized a handful of structural errors and judges falling asleep should not be added to this narrow list. Instead, the Kansas Court of Appeals should have applied the harmless-error doctrine and found the judge who fell asleep while presiding over a criminal trial properly mitigated the situation, and upheld the defendant’s conviction. I. INTRODUCTION Judges are held to the highest professional standard, both within the legal field and their own enumerated code of conduct.1 A judge presiding over a criminal trial adjudicates matters by issuing rulings and providing explanations for decisions.2 When a judge fails to preside over a trial by falling asleep, what happens to the case? The Kansas Court of Appeals in State v. Johnson3 held the case should be reversed automatically under the structural error doctrine.4 However, the court should not have expanded the structural error doctrine, and instead should have allowed the harmless-error analysis to govern and required the defendant to show some form of prejudice. 1. Brian Holland, The Code of Judicial Conduct and the Model Rules of Professional Conduct: A Comparison of Ethical Codes for Judges and Lawyers, 2 GEO. J. LEGAL ETHICS 725, 732 (1989).
    [Show full text]
  • Handbook on Briefs and Oral Arguments
    HANDBOOK ON BRIEFS AND ORAL ARGUMENTS by THE HON. ROBERT E. DAVISON and DAVID P. BERGSCHNEIDER ©2007 by the Office of the State Appellate Defender. All rights reserved. Updated 2020 by: Kerry Bryson & Shawn O’Toole, Deputy State Appellate Defenders State Appellate Defender Offices Administrative Office Third District Office 400 West Monroe - Suite 202 770 E. Etna Road Springfield, Illinois 62705 Ottawa, Illinois 61350 Phone: (217) 782-7203 Phone: (815) 434-5531 Fax: (217) 782-5385 Fax: (815) 434-2920 First District Office Fourth District Office 203 N. LaSalle, 24th Floor 400 West Monroe - Suite 303 Chicago, Illinois 60601 Springfield, Illinois 62705-5240 Phone: (312) 814-5472 Phone: (217) 782-3654 Fax: (312) 814-1447 Fax: (217) 524-2472 Second District Office Fifth District Office One Douglas Avenue, 2nd Floor 909 Water Tower Circle Elgin, Illinois 60120 Mount Vernon, Illinois 62864 Phone: (847) 695-8822 Phone: (618) 244-3466 Fax: (847) 695-8959 Fax: (618) 244-8471 Juvenile Defender Resource Center 400 West Monroe, Suite 202 Springfield, Illinois 62704 Phone: (217) 558-4606 Email: [email protected] i INTRODUCTION The first edition of this Handbook was written in the early 1970's by Kenneth L. Gillis, who went on to become a Circuit Court Judge in Cook County. The Handbook was later expanded by Robert E. Davison, former First Assistant Appellate Defender and Circuit Court Judge in Christian County. Although the Handbook has been updated on several occasions, the contributions of Judges Gillis and Davison remain an essential part. The lawyers who use this Handbook are encouraged to offer suggestions for improving future editions.
    [Show full text]