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Texas Law Review Online


In his article, “Does It Matter Who Objects? Rethinking the Burden to Prevent Errors in Criminal Process,” Darryl Brown challenges the venerable rule that a defendant must preserve objections to erroneous rulings at trial in order to perfect them for later appeal. Brown ably convinced me that conventional wisdom about who should bear the burden of bringing errors to a court’s attention is woefully under-theorized. In particular, Brown’s move to analyze adjudicative error from the perspective of accident prevention in other legal contexts is both clever and generative of insights. Moreover, Brown made a persuasive case that normative judgments about fairness, rather than a careful cost–benefit analysis, may better explain the status quo. What I am less certain of, though, is whether Brown has met his burden of persuading us that we should adopt his proposed rule: that the law should place the duty to avoid errors on the party that benefits from the error.

In this short Response, I explain why I am not fully persuaded. In Part I, I discuss why Brown’s rule may not necessarily prevent errors as much as he hopes, and may instead significantly increase reversals and retrials. In Part II, I question whether that cost is worth bearing, by interrogating the concept of “error” and its multiple possible meanings. That inquiry leads me to a limited defense of our system’s current approach to forfeited legal errors. I conclude by suggesting more modest reforms that, in my view, follow from Brown’s significant insights.


Criminal Procedure, Issue Preservation

Publication Citation

Daniel Epps, Perfecting Issue Preservation, 98 Texas Law Review Online 162 (2020)