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(4) Narrow Exception to the Raise or Waive Rule Preserves Some Issues for Appeal.

Although the Rhode Island Supreme Court staunchly adheres to the raise or waive rule, it has also recognized a narrow exception to the rule.  State v. Moten, 2008-51-C.A. (citing State v. Dennis, 29 A.3d 445, 449, 50 (R.I. 2011)).  The exception only will apply if the alleged error is “more than harmless” and implicates “an issue of constitutional dimension derived from a novel rule of law that could not reasonably have been known to counsel at the time of trial.”  Id. at 12-13 (citing State v. Breen, 767 A.2d 50, 57 (R.I. 2001) and State v. Burke, 522 A.2d 725, 731 (R.I. 1987)).  In State v. Moten, 2008-51-C.A., the Supreme Court emphasized that the narrow exception applies only to “novel constitutional rules.”  Id. at 17.  Thus, it is not available when the Supreme Court merely “applies a familiar constitutional rule to a novel fact pattern.”  Id.  Indeed, if the Court were to hold otherwise, “then virtually every constitutional decision of the Supreme Court would provide defendants an opportunity to take advantage of the exception.”  Id.  Such a standard would eviscerate the narrow nature of the exception.  Id.

About The Author

Nicole J. Benjamin

I am a shareholder and business litigator at AP&S. I help businesses and their legal departments achieve their objectives by reducing their liabilities, advising them on complex legal matters and defending unavoidable litigation in federal and state court.

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