One of the important things we learn in Constitutional Law is that one can go to federal court to vindicate federal issues. The Schiavo case, now raging, saw a midnight Act of Congress passed and signed by the President, to enable the family to go to federal court to pursue any federal claims which they might have.
How do you know when you have a federal claim if you only sued in state court? Like in the ordinary divorce or criminal case?
The answer is that you have to be aware that certain state court activity has a federal aspect or dimension to it.
In the Schiavo case, the federal questions arise out of substantive due process, life and liberty under the 14th Amendment, which prohibits a state from depriving a person of such w/o due process of law. Is the withdrawal of the feeding tube in Schiavo depriving her of life?
In class, to make the point that some rights go without saying, and thus may fairly be read into the meaning of liberty, since it is not defined in the text of the Constitution and requires filling in, I point to the right to eat food and breathe air. Making a point by using an absurd example. However, in Schiavo, this is no joke. Does she have a constitutional right to eat food and drink water? Is she being deprived? Has she had due process, whatever that is, since it's a flexible term?
Suddenly, when arguing in state court over a conservator's duty to an unconscious conservatee, you are up to here in federal law.
So, if you want to get into federal court and don't want to count on a private Congressional Act in favor of your client, what must you do? You must federalize your objections, and not just your objections, but your positions, as in Schiavo..
How do you federalize an objection?
You must fairly apprise the court that your objection is based not only on state law, but the federal constitution, so it is on notice to make rulings on both. Otherwise you might not get into federal court for failing to exhaust your state remedies.
Here's what Grace Suarez, former Deputy San Francisco Public Defender and legal researcher has to say about that in Grace's Cases:
HABEAS CORPUS - FEDERAL - FEDERALIZATION
Fields v. Waddington (2005) F.3d , 05 C.D.O.S. , (9th Cir. 3/21/05,
04-35169)
Briefing a Washington state constitutional claim does not alert the
state court that it is called upon to decide parallel federal claim, and
does not serve to exhaust state remedies.
Petitioner fairly presents federal claims only if he alerts the state court that claims rest on the
federal Constitution.
See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999) (per curiam) (holding that, when the petitioner failed to cite federal case law or mention the federal Constitution in his state court briefing, he did not alert the state court to the federal nature of his claims).
Petitioner must make reference to provisions of the federal Constitution or
cite either federal or state case law that engages in a federal
constitutional analysis. See Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir.
2000) (holding that state-exhaustion requirements for a habeas claim are
satisfied when a petitioner cites federal case law or provisions from the
federal constitution or statutes), amended, 247 F.3d 904 (9th Cir. 2001);
Peterson v. Lampert, 319 F.3d 1153, 1157-58 (9th Cir. 2003) (en banc)
(holding that a citation to a state court case that provides a federal
analysis can "serve[ ] the same purpose as a federal case analyzing such an
issue").
Here, even viewing the pro se petition more leniently, it did not alert state court to federal claims.
***
It's called federalizing your objections.
If you know that a piece of contested evidence is going to be offered by you or your adversary, the better practice is to look up what makes it admissible or not, such as a confession, admission, the fruits of a search, etc. Then write out your objection citing state and federal cases. This makes for double work.
When making an oral objection on the spur of the moment in court, it doesn't take much extra breath to base it on both state and federal law and to request a chance to revisit the matter, or ask the court to take the matter under submission, i.e., to withhold ruling pending your submission of points and authorities, assuming you haven't already litigated the matter.
Often contested evidentiary matters are foreseen and litigated at the threshold, before jury selection, in an in limine motion (meaning "at the threshold" of the case). That's where the Foxglove case died, during in limine motions after assignment to trial and before jury selection.