Written by attorney C Suzanne Bechard

Florida Criminal Appeals: What is the Contemporaneous Objection Rule?

The contemporaneous objection rule goes to the heart of preserving trial court error for appeal. In general, in order to raise a claimed error on appeal, the litigant must first object to the error during trial when the error occurs. Moreover, the argument raised on appeal must be the same argument that was raised as the basis for the challenge to the error in the trial court.

Thus, for example, generally speaking, a defendant cannot raise as an issue on appeal that the trial court should have suppressed evidence in his case if the defense attorney never made a motion to suppress in the trial court. And if a motion to suppress was made, and an argument was made to support suppression in the trial court, the defendant generally cannot successfully raise a different theory on appeal for why the evidence should have been suppressed.

Why Does the Contemporaneous Objection Rule Exist?

Florida courts have expressed a couple of reasons for why the contemporaneous objection rule is followed. First, the requirement of a contemporaneous objection gives the trial judge the opportunity to address, and possibly correct, the error on the spot. Second, the contemporaneous objection rule prevents defense attorneys from allowing errors to go unchallenged at trial, and then later using the error for tactical advantage.

Fundamental Error and the Contemporaneous Error Rule

There is one exception to the contemporaneous objection rule, and that is where the error at trial was fundamental in nature. The Florida Supreme Court has described fundamental error as error so severe that it “reaches 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." Brown v. State, 124 So. 2d 481 (Fla. 1960).

An error at trial may be 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." J.B. v. State, 705 So. 2d 1376 (Fla. 1998).

It is not always easy to establish on appeal that an unpreserved error in the trial court is fundamental; however, the Florida Supreme Court has ruled that the fundamental error doctrine should be applied “where the interests of justice present a compelling demand for its application." Smith v. State, 521 So. 2d 106 (Fla. 1988).

Nevertheless, the best approach for making a good record for appeal is to object immediately when an error occurs during trial, and to specifically and thoroughly present all available arguments for why the error should be corrected. This preserves the error for appeal and increases the odds for a successful outcome for the client.

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