Pop quiz: why is fundamental error like pornography?
Florida Bar Journal › Vol. 76 Nbr. 10, November 2002
Linked as:
Summary
Appellate Practice and Advocacy
See the full content of this document
Extract
Pop quiz: why is fundamental error like pornography?
Answer: To paraphrase Justice Stewart's often quoted standard, because a court knows it when it sees it. (1)
The doctrine of "fundamental" or "plain" error, which permits appellate review of error without a proper preservation of the issue in the lower tribunal, has been defined consistently in Florida jurisprudence as "error which goes to the foundation of the case or goes to the merits of the cause of action." (2) Additionally, fundamental error has been deemed to "extinguish a party's right to a fair trial." (3) But just as the definition of "obscenity" as material appealing to the "prurient interest" of the average person and "utterly without redeeming social importance" has been-imperfect in its application, (4) the definition of "fundamental error" has been difficult to apply in specific cases, especially in civil actions, and has sometimes resulted in apparent disparate dispositions. (5) The paramount consideration in applying the doctrine of fundamental error should focus on the public's perception and confidence in the judicial process. As Judge Chris W. Altenbernd observed in Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996): Although fundamental error is extraordinarily difficult to define, the doctrine functions to preserve the public's confidence in the judicial system. Relief is granted for a fundamental error not because the party has preserved a right to relief from a harmful error, but because the public's confidence in our system of justice would be seriously weakened if the courts failed to give relief as a matter of grace for certain, very limited and serious mistakes. Id. at 584. How, then, is an appellate practitioner, staring at a record or transcript, supposed to know whether the unpreserved error glaring back ...See the full content of this document
Sponsored links
