Unpreserved Errors Are All the Same, Right? Not Exactly.

Author:Carlin, Tracy S.
Position:Appellate Practice

In both state and federal court, to preserve an error for review and correction on appeal, a party must make a specific, contemporaneous objection to the perceived error. (1) These rules serve three goals: 1) It gives the trial court the opportunity to correct the error; 2) it prevents the delay and an unnecessary use of the appellate process that may result from the failure to cure the error early; and 3) it prevents counsel from allowing errors to go unchallenged by objection and then later trying to use that error to a client's tactical advantage. (2) Under Florida law, the sole exception to the contemporaneous-objection rule is where the unobjected-to error is fundamental in nature. (3) In contrast, under federal law, unobjected-to error is reviewed for plain error. (4) This article attempts to explain the similarities and differences between the concepts of reversible fundamental and plain error.

Fundamental Error

The Florida Supreme Court has stated that "in order to be of such fundamental nature as to justify a reversal in the absence of timely objection, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." (5) Under this analysis, an error is deemed fundamental "when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process." (6) In addition, the court has stated that "[t]he doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application." (7) In general, the fundamental error doctrine is the same in both criminal and civil cases under Florida law, but courts are apparently more inclined to find fundamental error in criminal cases--where an individual's liberty is at stake--than they are in civil cases. In criminal cases, for example, an improper jury instruction may be held to be fundamental error; whereas, in a civil case, it may not. (8) An incorrect or improper jury instruction in a criminal case is more likely to violate not only the defendant's due process right to a fair trial, but also the derivative right to a jury trial. (9) The theory here is that if the jury followed the law as it was instructed, then the ultimate verdict is presumably predicated upon the legal premises provided in the jury instructions. (10) Therefore, it follows that the erroneous legal principles contained in the incorrect jury instruction likely impacted the jury's deliberations and the resulting verdict. (11) Thus, an erroneous jury instruction that results in a guilty verdict is the type of error that strikes at the fundamental legality of the trial itself and would be recognized as fundamental error. (12)

To be fundamental in nature, the error must also be harmful. If the error is not harmful, it cannot meet the requirement of being fundamental and, therefore, it cannot be corrected if it was not preserved for appeal by a contemporaneous objection. (13) For example, when a jury instruction contained an error that was not material to what the jury must consider to convict the defendant of the crime charged, the error is not deemed to be fundamental. (14) For an error to meet this narrow standard of fundamentality, it must be error that prejudiced the defendant. (15)

As the Florida Supreme Court observed in Jackson v. State, 983 So. 2d 562, 576 (Fla. 2008), the U.S. Supreme Court has "recognized a limited class of fundamental constitutional errors that 'defy analysis by the "harmless error" standards.'" (16) "These errors are so 'intrinsically harmful as to require automatic reversal (i.e., 'affect substantial rights') without regard to their effect on the outcome.'" (17) The complete denial of counsel to a criminal defendant has been listed as one of the classes of errors that requires automatic reversal. (18) In contrast, the court found that a prosecutor's statement, "Don't let him get away with this," did not rise to the level of fundamental error because the prosecutor also told the jury there were lesser-included offenses, which he listed, and then asked the jury not to let the defendant get away with first-degree felony murder if that was the crime for which they chose to convict him. (19) Thus, even in criminal cases, whether the error will be deemed fundamental will depend on the overall nature of the unobjected-to error and its ultimate impact on the outcome of the case or the prejudice to the defendant.

Jurisdictional issues present the best examples of the kinds of claims that can be raised in the appellate court despite the absence of a contemporaneous objection in the trial court. (20) The jurisdiction of the trial court is a fundamental matter that is permitted to be raised for the first time on appeal. (21) If a trial court acts in excess of its jurisdiction, for example, the resulting error is one that necessarily affects the foundation of the case. (22)

Whether the fundamental error exception will be applied to a constitutional issue is not always clear. (23) An error may be constitutional but still might not rise to the level of fundamental error requiring a reversal in the absence of a timely objection. (24) For example, the Supreme Court has held that an improper comment on the failure of an accused to testify in a criminal case is a constitutional error, but that it, nevertheless, does not serve as ground for a reversal of a conviction when the defendant did not object below because it is not also fundamental error. (25) Other constitutional issues are regularly classified as fundamental error, however. (26) For example, a...

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