One of the other distinguished blawgers - a friendly and courteous law student who calls himself Alexander Hamilton or Federalist 84 - here, was railing at the Con-Law incompetence of some of the lawyers he'd been reading about in the advance sheets who had failed to make and preserve trial objections.
I posted this comment to his blawg as a reaction. By the time I'd finished, I liked it enough to post it here, for you:
All lawyers are constitutional lawyers.
That's why it's a required course in all law schools.
There may be a tendency among some to fail to realize that Con-Law applies first at the earliest and lowest rung on the judicial ladder, not just among the appellate-lawyer types after you've lost downstairs. As a trial lawyer you've got to preserve issues for them to glom onto. You don't want to leave them an empty plate where the only defense is IAC.
Ineffective Assistance of Counsel. (You.)
One good practice to consider is 'federalizing' your objections, that is, to object not only on your state's evidence code violations, such as hearsay, for example, but to claim a federal due process, confrontation, or other violation. And make it specific enough to put the court and counsel on notice, otherwise it's waived. This requires advance preparation; homework among the lawbooks.
The recent case of Crawford v. Washington, 124 S.Ct. 1354, 1367 (2004) is a good example of a garden variety criminal case - domestic violence - prosecuted on one of those Nicole Brown Simpson evidence code type statutes.
You remember, where O.J. was never prosecuted because he was a football star, despite numerous TAPED complaints his wife made to police before he allegedly murdered her.
The tapes, as hearsay, couldn't come in as evidence. So the hearsay law in California, and perhaps other states, was legislatively modified to allow it to come in henceforth.
The Crawford case put an end to that on confrontation grounds.
Trial counsel at the local public defender level in Crawford had to realize the need not only to make the hearsay objection, despite the permissive statute, but to federalize his objection on federal constitutional grounds, which he did, to his credit. That meant challenging the constitutionality of his state's evidence statute.
He also argued Crawford all the way up. He knew he had a 'live' issue, I guess.
Even more interesting was that at some point he received advice from a Con-Law prof who was an expert in the origin and development of hearsay doctrine going back to Elizabethan England.
Sir Walter Raleigh's case figures prominently in Justice Scalia's reasoning, along with other ancient cases. Scalia did a helluva job on this one. So conservative he's practically libertarian. More power to him on individual rights.
And you know what they say about old cases:
Old law is good law. :)
Sometimes, anyway.
You've gotta pick and choose, just like anything else. Slavery was old law.
Good constitutional lawyers cut their teeth in Muni court.
Always room for the good ones, I say.
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