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Concept of "Waiver" Popular These Days

By Shari Allison

U.S. v. Taylor, --- F.3d ----, 2008 WL 224055 (10th Cir. Jan. 29, 2008).This case is a little more complex than it appears on the surface?it is a standard of review decision. It seems to signal that the concept of ?waiver? is in high ascendancy.The Defendant objected to the prosecutor?s improper remarks in opening statement, to ?end the cycle of violence? on the rez by convicting Defendant of the battery with which he was charged. The judge sua sponte gave a ?curative instruction? to the effect that what was said in opening was not evidence. The Defendant made no other objections, motions, or requests regarding the prosecutor?s remark. It was his only issue on appeal.Gorsuch, writing for the panel (Briscoe writes a concurrence in the result) views this simply as an issue of waiver due to D?s failure to move for a mistrial or otherwise bring to the trial court?s attention his dissatisfaction with the instruction...continue to full post

Full post as published by Tenth Circuit Blog on January 30, 2008 (boomark / email).