Expert: Robin Sexton - 9/7/2009

Question
I am curious about an aspect of criminal procedure. If one wants to call the constitutionality of a statute into question, must it be done during trial or can a claim that the statute is unconstitutional be raised after trial. Mainly if it is nor raised will it be procedurally barred, collaterally estopped?

Answer
Jennifer,

This is a very very complicated question.  For the most part constitutional questions can be addressed during or after a trial.  Some issues need to be preserved at trial by objection or comments on the record.  If you will notice in a lot of trials attorney's will make objections just to preserve the right to argue that point latter in a higher court.  The constitutionality of statutes can not normally be brought before a court until some action is taken involving the statute.  Remember the statute must be argued as it relates to one of the amendments to the constitution, usually the bill of rights.

Pretty technical questions so if this isn't clear enough please repost


robin