The appellate courts don’t often find that the ends of justice exception should apply… but when they do, take notice!

As many of you know, the Court of Appeals will not address the merits of a question on appeal unless it has been properly preserved. Generally, that means making a sufficient contemporaneous objection and obtaining a ruling on it from the trial court. As all trial lawyers know, this is harder than it looks!

In a new opinion in Bell v. Commonwealth, a criminal defendant sent letters to the jury pool after his case was concluded (but while the jurors were still under their active term of jury duty). When the judge later learned of this, the judge held the defendant in summary contempt–meaning he received no hearing or opportunity to contest his guilt. A jury then sentenced the defendant, and the matter went to the judge to impose the sentence. Only then did trial counsel make any objection–and it was insufficient. Cue panic.

On appeal, the defendant raised the issues that should have been raised at trial. Importantly, he also asked the Court of Appeals of Virginia to invoke the ends of justice exception to the contemporaneous objection rule (Va. Sup. Ct. R. 5A:18) and decide the important issues at stake (which included Due Process issues).

The Court of Appeals provided a helpful summary of different types of contempt and how these proceedings should take place, so for practicing trial lawyers, keep these principles in mind (since if they come up, you frequently don’t have the opportunity to research this in the heat of the moment).

The Court of Appeals determined that the trial court’s decision to hold the defendant in summary contempt constituted a “manifest injustice.” As a result, the Court applied the ends of justice exception to Rule 5A:18 and remanded the case for further proceedings.

Takeaways: Pay attention to contempt–it can be confusing and things develop quickly so be ready to lodge objections if needed. And when an issue wasn’t properly preserved below, don’t forget to raise the ends of justice exception in appropriate circumstances! The appellate courts won’t apply it if you don’t ask for it. 

Have a unique situation or have questions about either of these two types of issues? Contact me anytime.