Virginia: Special Cases – a Lawyer’s Objections

Virginia: Special Cases – a Lawyer’s Objections

Commonwealth v. Amos, No. 130757, and Maxwell v. Commonwealth, No. 130810, consolidated with Rowe v. Commonwealth, No. 130881, were published by the Virginia Supreme Court on February 27, 2014. All three involve Va. Code §8.01-384(A), the contemporaneous objection exception, as it relates to Va. Sup. Ct. Rules 5A:18 and 5:25, the contemporaneous objection rules.

“When failure to raise a contemporaneous objection or otherwise bring an objection to the court’s attention results from a party’s actions, the contemporaneous objection exception of Code §8.01384(A) does not apply, and the preservation issue will be decided under the provisions of Rule 5A:18 and Rule 5:25, and case law applying those ruling,” pronounced Amos. Id. at 8-9. “However, when a party is denied the opportunity to raise a contemporaneous objection, the contemporaneous objection exception of Code §8.01-384(A) applies.” Id. at 9.

In Amos, the Court found the defendant had no opportunity for contemporaneous objection where summarily held in contempt and immediately escorted to jail. Id. at 10-11. In Maxwell, the Court also found defendant had no opportunity to object “to the circuit court’s act of entertaining and answering the jury’s questions when neither he nor his counsel were present [‘through no fault of their own’] Id. at 9-10. In Rowe, however, the Court held the defendant’s attorney had opportunity to object, but “failed to make an objection with the requisite specificity to satisfy Rule 5A:18”. Id. at 10-14.

The Court was not unanimous in its holdings. Justice McClanahan dissented in Amos and Maxwell; and Justice Lemons and Justice Mims dissented in Rowe. Justice Powell concurred in Rowe.

Despite Amos and Maxwell applying §8.01-384(A) to preserve appeals in the absence of contemporaneous objection, those decisions are statistical anomalies and parties (and per Rowe, especially their lawyers) need to do everything in their power to make specific contemporaneous objections. As Amos forebodes: “The paucity of cases that have invoked the contemporaneous objections exception during the past 40 years demonstrates that litigants are rarely precluded from making contemporaneous objections to orders or rulings of the court.” Id. at 10 (emphasis added).