Introduction

“Objection!” is one of the most important things to say in court. During hearings in front of the judge, many lawyers feel freer to object to potentially improper evidence or arguments. However, during jury trials, some lawyers may feel more conflicted about objecting. What if the jury gets irritated that the objections slow down the case? What if the jury thinks that the objecting party is hiding something? These fears are valid, but lawyers must make appropriate objections during the opposing side’s presentation of evidence and argument, because unpreserved errors, even if they are clearly prejudicial and improper, may not be enough to vindicate a client’s rights under the fundamental error standard.

What is Fundamental Error?

“If the issue of an opponent’s improper argument [or conduct] has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was so highly prejudicial and inflammatory that it denied the [objecting] party its right to a fair trial.”[i] On the other hand, if the complaining party failed to object during trial, the error must be fundamental before a verdict can be reversed.[ii] “Fundamental error is error that goes to the foundation of the case or goes to the merits of the cause of action.”[iii] “The failure to object is a strong indication that, at the time and under the circumstances, the [complaining party] did not regard the alleged fundamental error as harmful or prejudicial.”[iv] To show that error was fundamental, “the complaining party must establish that the argument [or conduct] was (1) improper, (2) harmful, (3) incurable, and (4) so damaging to the fairness of the trial that the public’s interest in our system of justice requires a new trial.”[v] This test is hard to meet, meaning that “a remedy will almost always be tied to contemporaneous objection.”[vi]

Criminal cases provide a glimpse into how difficult it is to reverse a verdict even when the improper conduct and arguments are egregious.[vii] In Augustine, the defendant was convicted of home invasion robbery with a firearm and armed false imprisonment.[viii] On appeal, Augustine argued that he was entitled to a new trial because the “cumulative effect of numerous improper arguments made by the prosecutor during closing argument constitute[d] fundamental error requiring reversal.”[ix] Indeed, the court noted that “[t]he transcript of the state’s closing argument reads like a primer for prosecutors entitled, ‘What Not to Say During Closing Argument.’”[x] The court listed all the improper arguments, including pleas for sympathy for the victims, arguing that the jurors should base their verdict on the “truth” rather than a “finding that the state established guilt beyond a reasonable doubt[,]” and arguing that the jury could conclude that Augustine wielded a firearm based on the victim’s subjective belief that he carried a firearm.[xi]

Likewise, the court noted that “the transcript of the defense counsel’s closing argument reads like a primer for defense attorneys entitled ‘What You Must Say During Closing Argument.’”[xii] What really mattered in this case was what went unsaid: objection.[xiii] The court found that “[a]ny one of the improper arguments here may have warranted reversal if preserved.”[xiv] In other words, the defense had failed to object to the egregiously improper comments by the prosecution.[xv] Despite the court’s clear disdain for the prosecutor’s improper conduct and the court’s high regard for the defense attorney’s arguments, the court was powerless to reverse the conviction and order a new trial because the lack of objections by the defense required application of the fundamental error test.[xvi] “Although the state’s case was based entirely on circumstantial evidence, [the court] cannot say that a conviction could not have been obtained absent the prosecutor’s improper comments.”[xvii]

Conclusion

Although it can be scary to object in front of a jury, the consequences of not objecting can be scarier. Lawyers walk a fine line of remaining likeable and credible to the jury while zealously preserving their clients’ rights to a fair trial. Although trials are regarded as final, they are just one part of the entire life of a case. When a jury returns an unfair verdict, knowing that error is properly preserved for appeal can provide a great deal of comfort, and a lot of leverage to reach a negotiated resolution.

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Sources

[i]     Carnival Corp. v. Jimenez, 112 So. 3d 513, 519 (Fla. 2d DCA 2013) (alterations in original, internal quotation marks omitted).

[ii]     Id.

[iii]    Millen v. Millen, 122 So. 3d 496, 498 (Fla. 3d DCA 2013).

[iv]    Ray v. State, 403 So. 2d 956, 960 (Fla. 1981).

[v]     Mercury Ins. Co. of Florida v. Moreta, 957 So. 2d 1242, 1250 (Fla. 2d DCA 2007) (citing Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000).

[vi]    Bocher v. Glass, 874 So. 2d 701, 704 (Fla. 1st DCA 2004).

[vii]   See, e.g., Augustine v. State, 143 So. 3d 940 (Fla. 4th DCA 2014).

[viii]   Id. at 940.

[ix]    Id. at 940-41.

[x]     Id. at 941 (emphasis in original).

[xi]    Id.

[xii]   Id. (emphasis in original).

[xiii]   See id.

[xiv]   Id.

[xv]   Id.

[xvi]   Id.

[xvii] Id.