Plain Error Flashcards
Shouldn’t we be reviewing most of these comments for plain error?:
No, your honor, and I think that conclusion follows both from practical considerations and from this Court’s precedent. Practically speaking, the district court overruled Mr. Luna’s objection, and it did so after hearing all of the challenged comments. So objecting earlier would not have provided a better opportunity for review or resulted in a different outcome. As for precedent, this Court reviewed de novo in Caruto even though the defense did not separately object to each challenged comment, because the court found that the defense did object and that the objection was not limited to just the individual comment.
But that’s the whole problem with you objecting so late. The judge didn’t necessarily know that he was supposed to be looking back to the other comments.
(Point to prosecutor’s use of “again.” Prosecutor himself is flagging that this is a theme, not an isolated comment.)
But the problem with defense counsel’s failure to object was that it deprived the prosecutor of the opportunity to correct his line of questioning. As soon as you objected, he immediately pivoted and stopped the objectionable line of questioning.
I hear your honor’s concern, but the objection here was sufficiently timely to do what objections are supposed to do: namely, to let the district court take corrective action. The court could have sustained the objection, stricken the improper remarks, and instructed the jury to disregard them. Instead, the court overruled the objection.
Was your objection specific enough to alert the court of the basis?:
Yes, your honor. Mr. Luna objected under the Fifth Amendment and the court apparently believed it understood, because it ruled on the objection without asking for further clarification. I’m also not sure what else the court could mistakenly have thought that defense counsel was referring to. No other aspect of the Fifth Amendment is plausibly implicated in the prosecutor’s comment.
