Celebrating 10 years! 2007-2017

Prosecutor withdraws trial court

I had a criminal appellate question for a traffic stop. The ithacadude2306/09/17
Is it a new case? In my jurisdiction, you are supposed to ad downwardslope06/12/17
If the circumstances are right, you might be able to claim p jeffm06/09/17
You should be able to argue that the issue was waived. Gener flharfh06/09/17
This, but also what jeffm said. Dispense w/ it in both mann sjlawyer06/09/17
The appellate judges will likely not consider that fact and thirdtierlaw06/09/17
In my state the court of appeals will affirm on any theory o tacocheese06/12/17
I wish I practiced in your State. It'd make trials so much l thirdtierlaw06/12/17
ithacadude23 (Jun 9, 2017 - 2:02 pm)

I had a criminal appellate question for a traffic stop. The prosecutor admitted that the stop was not consensual in the trial court, but in appellate brief put in a footnote of "even though we previously conceded and admitted the encounter to be not consensual, in the view of Smith v. State it was likely consensual." Can they do that? Does the change in position have any legal impact?

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downwardslope (Jun 12, 2017 - 9:54 am)

Is it a new case? In my jurisdiction, you are supposed to add in supplemental authority to be considered at the appeals level that is relevant to the case. Not everyone does it, though.

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jeffm (Jun 9, 2017 - 2:20 pm)

If the circumstances are right, you might be able to claim prejudice. "We prepared the defense based on the admission of the prosecution. The prosecution should now be estopped on appeal to deny the search was not consensual."

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flharfh (Jun 9, 2017 - 2:28 pm)

You should be able to argue that the issue was waived. Generally you cannot argue something on appeal that you did not argue in the lower court.

Not directly on point but a discussion of the issue: http://federalevidence.com/blog/2013/august/seventh-circuit-evidentiary-waiver-and-forfeiture

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sjlawyer (Jun 9, 2017 - 3:14 pm)

This, but also what jeffm said. Dispense w/ it in both manners.

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thirdtierlaw (Jun 9, 2017 - 3:06 pm)

The appellate judges will likely not consider that fact and explicitly acknowledge that they are not addressing the issue. But it may end up appearing in dicta if they are discussing whether something was a reversible error or not.

But flharfln is likely correct that if an issue is expressly waived at trial then they can not raise it up on appeal. In my circuit, not raising the issue at all is a waiver. This was an express waiver so you should be okay.

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tacocheese (Jun 12, 2017 - 9:16 am)

In my state the court of appeals will affirm on any theory of law applicable to the case, even if neither party raised the ground for denial of the motion. However, the court will not apply this rule if doing so will cause manifest injustice to the party who lost at trial.

The test for whether a theory of law is applicable to the case is whether the losing party was fairly called upon to bring forth evidence related to the matter.

You have a good argument that because of the express waiver, client was never called upon to elicit evidence related to the waived issue.

Whether your remedy is an abatement for a supplemental hearing, remand for new hearing, or remand for trial (or aqcuittal)... I don't know. Ask for the latter, but be prepared for the judges to ask about the others if you have oral argument.

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thirdtierlaw (Jun 12, 2017 - 9:24 am)

I wish I practiced in your State. It'd make trials so much less stressful! It'd also allow me to seem less contrarian to a jury. I'm sure they get sick of my constant, "objections" especially objections I'm just making to preserve the record.

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