Scialdone v. Commonwealth

Back in February, the Supreme Court of Virginia handed down Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010). That decision merits extended discussion. It not only offers the best treatment of preservation of error that we’ve ever seen, but it clarifies Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), thereby dispelling one of the great urban legends of the law.

The facts the case are, shall we say, unseemly. It arose out of a criminal prosecution for various offenses stemming from the defendant’s conduct in a Yahoo chat room with a police officer posing as a minor.

And it all went downhill from there.

During trial, there was a suggestion that defense counsel may have altered a set of Yahoo chat room rules, which they tried to put into evidence. The case was pending before Judge West. Defense counsel was clever enough to use the Yahoo user name “westisanazi” on one version of rules, but apparently not quite clever enough to do a plausible job of altering another version of the document.

A summary contempt proceeding ensued. Defense counsel (now defendants) objected and moved to stay the proceeding on the ground that it violated their due process rights. The trial court overruled the motion and held them in contempt.

Defense counsel appealed to the intermediate Court of Appeals, again arguing that that the trial court had violated their due process rights. The Court of Appeals held that they had failed to preserve that argument for appeal, because they’d failed to specify the relief they sought and asked only for a stay.

On appeal, the Supreme Court reversed. Writing for the Court, Justice Kinser gave a detailed explanation of the contemporaneous objection rule.Continue Reading Scialdone v. Commonwealth–Best Preservation of Error Opinion Ever?