United States Court of Appeals for the Ninth Circuit · 2018 · Evidence
Evidenceappealwaiverforfeitureargument first raised on appealpetition for rehearingamended opinionNinth Circuit
Facts
The only facts disclosed in this text concern the appellate proceedings after the court's August 8, 2018 opinion. In amending that opinion, the panel stated that the last argument had been raised for the first time on appeal. The amendment changed the language from saying the court would 'not address' that argument to saying it would 'decline to address it,' and substituted a citation to United States v. Spilotro.
Issue
Whether the panel should alter its prior disposition in response to the government's petition for rehearing, particularly regarding the treatment of an argument raised for the first time on appeal.
Rule
When an argument is raised for the first time on appeal, the appellate court may decline to address it.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In a federal fraud trial in Phoenix, Elena Cruz objected to several exhibits on hearsay grounds but never argued that one spreadsheet lacked authentication. After conviction, she appeals and, for the first time, contends the spreadsheet should have been excluded because no witness authenticated it.
How may the court of appeals properly respond to Elena's new authentication argument?
Explanation. The governing rule is narrow: when an argument is raised for the first time on appeal, the appellate court may decline to address it. The majority language frames this as a discretionary refusal to consider the newly presented argument, not as a jurisdictional defect and not as a mandatory merits ruling. (Derived from United States v. Fomichev (n.d.).)