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Lawyers Are Not Unicorns, but a Race-Baiting Prosecutor Proves That a Failure to Object Can Be Fatal (Inside NACDL)
By Norman L. Reimer
Inside NACDL columns.
It is official. Defense lawyers are not unicorns. They are intelligent, responsible advocates who earnestly endeavor to correct and preserve error. But they are fallible, and, in most cases, a failure to object to even the most egregious error will waive any opportunity for relief.
Within a span of five days in February, two Supreme Court opinions addressed issues related to error that are must-reads for trial lawyers. In Henderson v. United States,1 the Court held that the plain error rule, which permits an appellate court to redress an error that was not preserved by timely objection, applies to errors that were plain at the time of appeal, as opposed to only those that were plain at the time of trial. This case, which was the subject of the December 2012 Inside NACDL column,2 resolved an ambiguity in Federal Rule of Criminal Procedure 52(b). Cases had previously established that subject to stringent limitations, appeals courts could correct a forfeited error by the trial
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