Subjective/objective

Question 1

Is the inquiry subjective or objective?:

Answer 1

Objective, your honor, as this Court made explicit in United States v. Sigal, 572 F.2d 1320, 1322–23 (9th Cir. 1979). But either way, your honor, the subjective/objective question won’t affect the outcome here. And that’s because the test from Hovey is disjunctive. Even on the government’s reading, Mr. Luna could prevail by meeting the subjective or the objective prong. And here, he is relying only on the objective prong.

Question 2

But that’s not what we seem to be saying in the governing legal standard, when we use the words “manifestly intended”

Answer 2

Yes, your honor, the subjective-sounding vocabulary that has sprung up in this area of law is unfortunate. But Sigal and Passaro make unmistakably clear that the inquiry here is objective. But either way, your honor, the subjective/objective question won’t affect the outcome here. And that’s because the test from Hovey is disjunctive. Even on the government’s reading, Mr. Luna could prevail by meeting the subjective or the objective prong. And here, he is relying only on the objective prong

Question 3

But this “manifestly intended” language doesn’t apply to direct Griffin errors. It’s a special standard for implied Griffin errors.:

Answer 3

A few points on that, your honor. First, this Court has found implied Griffin error at least four times - in Preston, Hovey, Beardslee, and Sehnal - without relying on any findings about the prosecutor’s subjective intent, and the government hasn’t proposed any principled reason why direct Griffin errors and other improper remarks would require an objective inquiry, but indirect Griffin errors would have a subjective component.

But either way, your honor, the subjective/objective question won’t affect the outcome here. And that’s because the test from Hovey is disjunctive. Even on the government’s reading, Mr. Luna could prevail by meeting the subjective or the objective prong. And here, he is relying only on the objective prong

Question 4

But you’re not claiming that the prosecutor meant to violate Griffin right? Alt: Do we have to find that the prosecutor meant to violate Griffin in order to credit your argument?:

Answer 4

No, your honor, nor must we. Under United States v. Sigal, 572 F.2d 1320, 1322–23 (9th Cir. 1979), this court takes a statement challenged under Griffin “at its objective face value, as [the Court] must assume the jury took it.” But either way, your honor, the subjective/objective question won’t affect the outcome here. And that’s because the test from Hovey is disjunctive. Even on the government’s reading, Mr. Luna could prevail by meeting the subjective or the objective prong. And here, he is relying only on the objective prong.