State v. Golding: a Standardless Standard?

Publication year2021
Connecticut Bar Journal
Volume 65.




After a long and tortuous journey, it appeared in 1988 that the rule announced in State v. Evans,(fn1) permitting appellate review of claims unpreserved at trial only in "exceptional circumstances,"(fn2) finally had been overcome by its legacy. Perhaps prompted by proof that these "exceptional circumstances" were anything but exceptional,(fn3) the Connecticut Supreme Court suggested that review of unpreserved claims had "expanded" since Evans was decided and even questioned whether the ruling "continue[d] to serve the limited purpose for which it was intended."(fn4)

The Evans "exceptional circumstances" were intended by the Court to strike a' roper balance between the constitutional rights of criminal defendants on the one hand and, on the other hand, the strong jurisprudential interests implicated by a defendant's failure to claim a violation of those rights at his trial. As the Connecticut Supreme Court long ago recognized in State v. Tuller,(fn5) a defendant cannot "be permitted to lie by and speculate upon the chances of a verdict."(fn6)

Confronted with increasing lax applications of these principles in its contemporary decisions, the Court signalled a return to the roots of the general rule of unreviewability when it explained in a recent case that Evans review was "warranted only for egregious errors that undermine the fairness of a trial and cast doubt on the integrity of judicial proceedings,"(fn7) an obvious reference to the strict plain error rule. The call for revision of Evans culminated in State v. Golding,(fn8) where the Connecticut Supreme Court took the extraordinary step of ordering, sua sponte, rebriefing and reargument on "whether we should revise the standards set out in State v. Evans ... for appellate review of constitutional claims not distinctly raised at trial."(fn9) The Court declared that judicial application of Evans over the years revealed "disparate approaches" to the test, and announced a new, "less burdensome, more uniform," four-part formula for assessing unpreserved claims on appeal.(fn10)

The Golding standard does indeed amount to a vehicle for more uniform and neutral application of Evans, but in the year since it was announced, Golding appears to be headed down the same path blazed by Evans nearly twenty years ago: whenever the justices deciding a particular case perceive the "involvement" or "implication" of a "fundamental" right in an unpreserved claim, full review is often granted. What results is a "standard" of review which, rather than holding true to its terms, changes with each case and with the justice who applies it.(fn11) The question becomes not why review of an unpreserved claim should be granted, but why it should not be granted. If this trend continues, the salutary rule that claims should be raised at trial will have even less meaning than it has now.


Evans was not the genesis of the rule that unpreserved claims are generally unreviewable on appeal. The "ancient and sound" rule specified in Evans had been firmly applied prior to Evans, although it had been relaxed in capital cases.(fn12) For example, in State v. Tuller,(fn13) defense counsel had failed to bring to the trial court's attention information that one member of the jury was biased, having expressed his opinion of the defendant's guilt prior to trial. On appeal, defense counsel presented the unpreserved claim arguing that: (1) he did not know which juror was biased and therefore could not be expected to prove up his claim below; and (2) because be did not learn of the information until after the jury bad begun their deliberations and therefore did not know during the trial, be was not bound to bring the matter to the attention' of the trial court.

The Connecticut Supreme Court sternly rejected both claims. As to the first, the Court aptly noted that, had defense counsel disclosed the information he did have, "he would have been informed of the name of the juror on the instant if he had desired it."(fn14) Moreover, the Court found the defendant's second claim entirely too technical:"

We must look to the substance of the thing; and that is, that if he knows of an objection to the panel before the verdict is rendered, and in time to prevent the verdict, and obtain a rehearing before another jury, and does not avail himself of the opportunity, he must beholden to a waiver of the objection. Otherwise he would be permitted to lie by and speculate upon the chances of a verdict, and that cannot be tolerated.(fn15)

The "substance of the thing" remained the focus of the Court when it decided Evans over one hundred years later, but the substance of an unpreserved claim became not a reason to deny appellate review, as Tuller clearly illustrates, but rather a reason to grant review. The ancient, firm and salutary rule evident in TuUer - that all claims should be raised at trial,when any necessary remedial action may be taken by the trial judge - attained a malleability under Evans which ultimately became its downfall. By linking review of unpreserved claims to an allegation of error involving a "fundamental" right, the Court injected elements of subjectivity which, through their application, effectively reduced Evans to a vessel without rudder or anchor, largely driven by the notions of the particular court, or the particular jurist, applying it.(fn16)

Of course, the literal terms of Evans require much more than a claim of error "involving" or "implicating" fundamental constitutional rights. Indeed, the rule also requires a record adequate to review the claimed violation and the demonstration both of a clear deprivation of the claimed constitutional right and a fair trial. Thus, the objective of Evans was not to grant review of every unpreserved claim, even constitutional ones, but to grant review only to those claims in which a fundamental constitutional violation has seriously undermined the reliability of the outcome of the criminal trial. But these important criteria have had relatively little significance in the Connecticut Supreme Court's application of Evans; by and large, the involvement of a fundamental constitutional right has been the only criterion for gaining Evans review. Concomitantly, the legitimacy of the "exceptional circumstances" of Evans steadily was eroded.

This trend was slow to start, but gained speed as the Supreme Court began to stray from the literal Evans criteria. In the first application of the "exceptional circumstances" test after Evans was decided,(fn17) the Court summarily dispatched two claims - one alleging prosecutorial misconduct in closing argument and a claimed error in the trial court's instruction to the jury on the insanity defense. The Court stated only: "An examination of the record discloses that the questions now sought to be raised on this appeal were not raised and ruled on in the trial court and that there is nothing to bring this case within the exceptional circumstances noted in [Evans]."(fn18)

Only one year later, however, the Court granted review of a defendant's speedy trial claim under the Sixth Amendment in State v. L'Heureux,(fn19) noting that the unpreserved claim was reviewable simply because it "involves a fundamental constitutional right."(fn20) L'Heureux included no discussion of whether "the record adequately supports a claim that [the defendant] ha[d] clearly been deprived of a fundamental constitutional right and a fair trial," as the second prong of Evans expressly required It thus became apparent that, merely by showing the "involvement" of a fundamental constitutional right, an appellant could successfully gain full appellate review of an unpreserved claim

Subsequent cases confirmed this point. Evans was typically satisfied merely by a showing that an unpreserved claim "implicates," "involves," "affects," or "touches on" a fundamental constitutional right, whether based in the federal or the state constitution,(fn21) so long as there is some support for the claim in the record.(fn22)

Only infrequently did the Court specify and apply the literal terms of Evans by deciding whether a "clear deprivation" of that constitutional right is "adequately supported by the record" and that the deprivation of that constitutional right has denied the defendant a fair trial.(fn23) As the Supreme Court veered from consistent application of the original Evans criteria, the reformulations of those criteria naturally created an elusive standard of reviewability which could be satisfied in nearly any case and for nearly any reason.

While most of these post-Evans, pre-Golding cases concern the "fundamental constitutional right" component, a significant number turned solely on claims which mention the "fairness of the trial" component, a rationale which obviously may include nearly any claim of error within its ambit.(fn24) Other cases focused on whether a given constitutional claim has warranted Evans review in previous cases(fn25) and certain constitutional claims were invariablyreviewed on their merits.(fn26)

A series of cases also expanded the application of Evans beyond the confines of a direct appeal. For example, the Court applied the Evans rationale to an appeal from habeas corpus attacking the validity of the underlying conviction.(fn27) This is questionable, inasmuch as the Evans criteria expressly are intended to address constitutional errors raised on direct appeal, but unpreserved at a criminal trial. Collateral attacks on criminal judgments are not favored(fn28) and the habeas corpus petitioner therefore carries a much heavier burden of proof than he would bear for the same claim on direct appeal, whether that claim is preserved or not.(fn29) Indeed, the petitioner...

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