33 Va. App. 281 - Herring v. Herring’s Empirical Analysis

Citation profile

16 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 16 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “Application of the ends of justice exception requires proof of an error that was “clear, substantial and material.” Brown v. Commonwealth, 8 Va.App. 126, 132 , 380 S.E.2d 8, 11 (1989). The record “must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va.App. 215, 221 , 487 S.E.2d 269, 272 (1997). Ordinarily, in the criminal context, application of the ends of justice exception is appropriate where “[the accused] was convicted for conduct that was not a criminal offense” or “the record ... affirmatively prove[s] that an element of the offense did not occur.” Id. at 221-22 , 487 S.E.2d at 272-73 . However, some procedures are so crucial that a court’s failure to adhere to them constitutes error that is clear, substantial and material even in the absence of affirmative proof of error in the result. For example, a trial court in a criminal case has an affirmative duty properly to instruct the jury on the elements of the charged offense, even if the accused does not object or proffer a properly worded jury instruction, and the ends of justice exception permits the accused to raise this issue for the first time on appeal. See Johnson v. Commonwealth, 20 Va.App. 547, 553-54 , 458 S.E.2d 599, 602 (1995) (en banc); see also Jimenez v. Commonwealth, 241 Va. 244, 250 , 402 S.E.2d 678, 681 (1991).”

   1 later decision quote this exact passage
   e.g. 43 Va. App. 327 - West v. Commonwealth

2. “Ordinarily, endorsement of an order “[s]een and objected to” is not specific enough to meet the requirements of Rule 5A:18 because it does not sufficiently alert the trial court to the claimed error. Such an endorsement is sufficient to satisfy Rule 5A: 18 only if “the ruling made by the trial court was narrow enough to make obvious the basis of appellant’s objection.””

   1 later decision quote this exact passage
   e.g. Edy Canales v. Marvin Alejandro Torres Orellana