Darryl Brown

Does It Matter Who Objects? Rethinking the Burden to Prevent Errors in Criminal Process

Texas Law Review

UVA Law Faculty Affiliations


Objection rules enforced by forfeiture penalties make the right to appeal contingent on whether the party injured by an opponent’s or judge’s error made a timely objection or motion in the trial court. “No procedural principle is more familiar” than that a party who does not challenge an error at trial forfeits, partially or wholly, its entitlement to appellate review. This policy of procedural default puts the duty of care to prevent errors on injured parties. The rationale is instrumental: the threat of losing the right to correct errors will make parties take greater care to prevent errors at trial, which is immensely more efficient than correcting errors later, That will minimize adjudication errors overall. Yet, in most applications, that ubiquitous logic fails on its own terms. Placing the burden of care on injured parties generally is not the optimal approach to minimizing errors. In most circumstances, the better policy is to place the duty of care to prevent errors on the party who commits the error or who benefits from the judge’s error.

The key is to recognize that, analytically, error prevention in adjudication is much like accident prevention in other contexts. As in tort law, the goal is to minimize the cost of harms in bilateral activities—those in which two parties interact and either alone could prevent the harm. Litigants’ error-prevention efforts are substitutes rather than complements; it is not necessary for both parties to exercise care. For that reason, procedural law should place the duty of care—and the cost of harms—on the party who can most cheaply prevent the harm.

Courts and rule makers perpetuate suboptimal rules for preventing errors by ignoring this insight and a related one: in bilateral settings, liability rules create incentives for both sides. Putting the duty to prevent errors to one party encourages the other to commit errors. This article develops this critique and offers an alternative: putting the duty on parties to prevent their own errors rather than their opponent’s. It also explains why standard procedural default rules have prevailed for so long in light of their deficiencies. One key reason is that, despite an ostensible commitment to instrumental analysis focused on adjudicative efficiency, judicial reasoning is permeated with moralistic judgments about the unfairness of permitting appeals for unpreserved errors. This normative view distorts courts’ instrumental analyses


Darryl K. Brown, Does It Matter Who Objects? Rethinking the Burden to Prevent Errors in Criminal Process, 98 Texas Law Review 625-677 (2020).

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