“While There Is A Soul In Prison, I Am Not Free.

Appellate Sin Number One: The King’s X Rule—correctly stating the nature of the objection.

This is the King’s X rule.  If the lawyer is too slow standing up, or doesn’t know a Rule, or only objects under one ground and the judge can think of another, this doctrine tells the client:  “We know it isn’t your fault, but your lawyer didn’t use the right magic words so your fair trial will run down the drain into the sewer and be lost forever.”

The idea is that the trial judge needs to get fair warning of the nature of the objection so he can evaluate the objection and rule.  That’s fair.  But more often, everyone knows what the objection is, and the rule is used so the appellate court does not have to rule on the merits of the objection.  Rule of Appellate Procedure 33.1 requires the complaining party (that is, the accused person’s lawyer) the state “the grounds for the ruling…with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context….”

In practice, appellate courts often toss out the appeal in an unpublished decision and never consider whether an error was made.  That is why it is one of those practices that devalues the criminal justice system, just like wooden nickels devalue money.

Once upon a time in a galaxy far, far, away, the Fifth Circuit refused to do this.  We can use this case to look back in time so all our beleaguered criminal defense brethren can remind their appellate judges that they really don’t have to throw out all the objections.

In Elizarraras v. Bank of El Paso, 631 F.2d 366, 373–74 (5th Cir. 1980) three Fifth Circuit justices said, although an objection was incorrect, they would not draw “such a fine line” between hearsay and personal knowledge as to deprive the lawyer of his objection:  “The problem in the instant case is that the appellee did not carry the burden Rule 602 puts on him of showing personal knowledge of the matter testified to (although appellant objected on hearsay grounds, not personal knowledge, we will not draw such a fine line).”  Celebration!!  With this, the 5th Circuit gives a case to help with Appellate Law Sin Number One, the preservation of Error Doctrine.

To be on the safe side, if any of us are in the same boat (bank lawyers trying to exclude evidence that the customer deserves more money) we still should object at trial:  “Rule 602, personal knowledge, 402, relevance, 802, hearsay, plus 403, prejudice.”   In a criminal defense we must also toss in the Confrontation Clause.  The lawyer for the bank only objected to hearsay.    The proper objection is not hearsay, because Mr. Elizarras does not attempt to say someone told him those amounts had been taken from his account.  That testimony had already been excluded as inadmissible hearsay.  What Mr. Elizarras does attempt to do is assert the amounts taken without him having any basis to have personal knowledge of this.  The 5th Circuit does not apply a rule so pettifogging, niggling, trifling (or some other barnyard reference) in this case to reject the bank’s objection simply because “hearsay” was uttered rather than “personal knowledge.”  Good for them.  It was a civil suit and it was a bank, but these three no doubt would have been similarly magnanimous when considering the actions of some poor defendant’s lawyer.

This decision was written in 1980.  Although more than forty years ago, it seems like just yesterday.  Justice James P. Coleman died in 1991 at the age of 77.  Coleman was a segregationist who was opposed to Black folks voting.  (Yes, it seems odd he could have gotten this job with that history, but it was not so odd in 1965 when Lyndon Johnson appointed him.)  Justice Phyllis Kravitch died in 2017 at the age of 96.  She was a scholar whose clerks sometimes went on to serve at the Supreme Court.   Justice Reynaldo Garza died 2004 at the age of 89.  I knew him, a fine gentleman.   He was the first Mexican-American appointed to a federal bench and his sons and grandchildren now are active Cameron County lawyers.

Now, all dead, at least they left a legacy in this one case of not rejecting an objection because the lawyer was imprecise in his objection.  Good for them.  Good for us.