In 2000, an American rock band achieved international commercial success with a song entitled “All the Small Things.” The song saluted the many small things the songwriter’s partner did that were integral to fostering the relationship’s success. A successful criminal defense, much like a successful friendship or couples relationship, is the result of dedication, commitment, and acute attention to detail. Things that might seem small may ultimately be what lead to a successful end result. That’s why, whenever you or your loved one is facing charges, it pays to have skillful representation from an experienced Maryland criminal defense lawyer.
To illustrate what we mean, consider this recent first- and second-degree assault case from Frederick County.
During jury selection, the prosecution used a peremptory challenge on a Black man. (A peremptory challenge is one where the side advancing it need not provide a reason for wanting the potential juror excused.)
Although both the accused and the alleged victim were white, the defense made a Batson challenge, which the judge overruled. (A Batson challenge, named for the U.S. Supreme Court case of Batson v. Kentucky, is an objection to a peremptory challenge on the basis that the underlying motivation was improperly race-based, sex-based, or ethnicity-based.)
At the close of jury selection, the judge asked each side if they were satisfied with the jury selection. The defense said only “Yes, Your Honor,” and nothing more.
The jury convicted the man and he appealed, again raising the issue of an improper exclusion of the Black juror. Unfortunately for the accused,, the defense had waived that objection, so the appeals court did not even review the potential Batson violation.
The waiver occurred when the judge asked “Defense satisfied?” and the defense said only, “Yes. Your Honor.” An unequivocal expression of satisfaction with jury selection constitutes a waiver, even if you’ve raised a proper objection earlier in the jury selection process.
An ‘Unqualified Affirmative’ Reply = A Waiver
Some responses do not amount to a waiver. In a 2009 case, after the two sides argued about a potential Batson violation, the prosecutor and the defense attorney responded with, “Thank you, Your Honor.” That, according to the court, was not a waiver of possible future arguments about Batson violations.
The Maryland Evidence Handbook specifically advises to be “sure the record shows that you are not abandoning whatever objections you have made. You [may] say ‘acceptable,’ as long as before doing so… you state for the record that your affirmative response to the ‘Is the jury acceptable?’ question does not constitute a waiver of your previous objections to the selection process. An otherwise unqualified affirmative response will indeed preclude appellate review.”
In practical terms, the difference between potential success on your Batson violation argument and a ruling that you waived that argument can be as simple as the difference between “Defense is satisfied, Your Honor,” and “Without waiving its previous objections to the jury selection, the defense is otherwise satisfied, Your Honor.”
It might, to a non-lawyer, seem like a small thing but, clearly, it has the potential to make a big difference in a case. Whether you are facing potential charges or you’re on trial, make sure you have the diligent and detail-oriented legal representation you need by calling upon the experienced Maryland criminal defense attorneys at Anthony A. Fatemi, LLC. We strive to provide each client with the zealous and thorough legal advocacy they deserve. Contact us today at 301-519-2801 or via our online form so that we can get started working for you.