Hearing the terms “approbate and reprobate” in an appellate court can (and sometimes should!) strike fear into the hearts of counsel.  

Generally, it is easy to understand the idea that one side shouldn’t be able to complain when a judge gives them what they ask for.  But although the basic concept can be straightforward, sometimes even our appellate courts can be divided on when to apply it.

By way of example: The Supreme Court of Virginia just reversed the Court of Appeals in Commonwealth v. Holman.  The Court of Appeals attempted to apply the ends of justice exception to an issue that was not argued to the trial court.  

In Holman, the trial judge granted Holman’s motion to strike his aggravated malicious wounding charge. Holman and counsel then “immediately informed the trial court that he would plead guilty” to unlawful wounding, and “stipulated that the evidence was sufficient” to show his guilt on his weapons offenses.  But the use of a firearm charge that Holman was convicted under required malicious wounding as a predicate offense.  What now?

The Court of Appeals held that because the trial court had found that there was no malice, the record contained “affirmative evidence of innocence or lack of a criminal offense.”  The Court of Appeals refused to accept what it considered to be a “mere concession of law,” and determined that the approbate/reprobate and invited error doctrines did not bar relief.

The Supreme Court of Virginia fundamentally disagreed.  The Supreme Court determined that trial counsel engaged in a “deliberate and well-crafted trial strategy” to forestall Holman’s more serious conviction.  The trial court did nothing more than give Holman the relief he desired.  

According to the highest court in Virginia, there is no ends of justice exception to the approbate and reprobate doctrine.  This was no mere concession of law, but was instead a type of waiver and it prevents Holman from winning a reversal on appeal.

Takeaways for Virginia lawyers: Tread lightly in making concessions.  Although it can be challenging when issues change mid-trial, be careful what you (and your client!) wish for.

Have questions about the ends of justice exception or the doctrine of approbate and reprobate?  My firm may be able to guide you.