What is the general rule of forfeiture in a criminal case?

California, United States of America


The following excerpt is from People v. Boyette, 127 Cal.Rptr.2d 544, 29 Cal.4th 381, 58 P.3d 391 (Cal. 2002):

There are two exceptions to the general rule of forfeiture, and defendant invokes them both. First, defendant argues the futility exception applies here. "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if'"an admonition would not have cured the harm caused by the misconduct."' [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if `the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' [Citations.]." (People v. Hill, supra, 17 Cal.4th at pp. 820-821, 72 Cal.Rptr.2d 656, 952 P.2d 673.)

Defendant claims that several of the trial court's prior rulings disagreeing with positions taken by defense counsel suggest any objection to prosecutorial misconduct would have been futile. Although it is theoretically possible a trial court could be so biased against a defendantas evidenced by prior rulingsthat an appellate court might reasonably conclude further objections would have been futile, such is not the case here. An objection and a request for admonition would have allowed the trial court to remedy any unfairness occasioned by the prosecutor's argument, avoiding any potential harm. We perceive nothing in the record suggesting that an objection to any of the alleged instances of misconduct would have been futile. (See generally People v. Dennis (1998) 17 Cal.4th 468, 521, 71 Cal.Rptr.2d 680, 950 P.2d 1035.)

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