novel rule in Rhode Island

2026For this narrow exception to apply, “the alleged error must be more than harmless, and the exception must implicate 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. (quoting State v. Breen, 767 A.2d 50, 57 (R.I. 2001)). 6 Vasquez did not discuss waiver in his briefing before this Court.

2026That’s under the cases of Bullcoming and also Melendez-Diaz. “* * * “Bullcoming and Melendez-Diaz and [sic] talk about confrontational issues and surrogate witnesses; and I just believe that in the interest of justice in the confrontation - 14 - clause that the testimony should not be allowed to come into evidence.” It can hardly be said that the alleged error “implicate[d] 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.” Moten, 64 A.3d at 1240 (quoting Breen, 767 A.2d at 57 ).

2026For this narrow exception to apply, “the alleged error must be more than harmless, and the exception must implicate 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. (quoting State v. Breen, 767 A.2d 50, 57 (R.I. 2001)). 6 Vasquez did not discuss waiver in his briefing before this Court.

2020For the exception to apply, “the alleged error must be more than harmless, and the exception must implicate 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. (quoting In re Miguel A., 990 A.2d at 1223 ); see State v. Burke, 522 A.2d 725, 731 (R.I. 1987) (providing that the exception may apply, for example, “when an intervening decision of this [C]ourt or of the Supreme Court of the United States establishes a novel constitutional doctrine” during the course of a trial).

2016We have recognized but one exception to the raise-or-waive rule where “basic constitutional rights are concerned.” State v. Gomez, 848 A.2d 221, 237 (R.I. 2004) (quoting State v. Donato, 592 A.2d 140, 141 (R.I. 1991)). “[T]o fall within this exception, the defendant must show: (1) *175 that the error complained of amounts to more than harmless error; (2) that a sufficient record exists to permit a determination of the issue; and (3) that ‘counsel’s failure to raise the issue [before trial] must be premised upon a novel rule of law that counsel could not reasonably have known during the trial.’

2015The record must be sufficient to permit a determination of the issue, and counsel’s failure to raise the issue must be premised upon a novel rule of law that counsel could not reasonably have known during the trial.” State v. Mastracchio, 672 A.2d 438, 446 (R.I. 1996) (internal quotation marks omitted); see also State v. Donato, 592 A.2d 140, 141-42 (R.I. 1991).

2022We have recognized a narrow exception to the raise-or-waive rule: - 15 - where the alleged error is “more than harmless,” State v. Bouffard, 945 A.2d 305, 311-12 (R.I. 2008), and “an issue of constitutional dimension based on a novel rule of law is presented of which counsel could not reasonably have known during the course of trial.” State v. Gomes, 690 A.2d 310, 319 (R.I. 1997) (quoting State v. Leonardo, 677 A.2d 1336, 1337 (R.I. 1996)).

2008In those cases, “the alleged error must be more than harmless, and the exception must implicate 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.” State v. Breen, 767 A.2d 50, 57 (R.I.2001) (citing State v. Gomes, 690 A.2d 310, 319 (R.I.1997)). “[A] motion upon which a trial justice has not ruled presents no question for review by this Court.” State v. Abreu, 899 A.2d 473, 476 (R.I.2006).

2005To qualify as an exception to the rule, the error complained of must be more than harmless error, the record must be sufficient to permit a determination of the issue, the issue must be of constitutional dimension, and counsel’s failure to raise the issue must be attributed to a novel rule of law that counsel could not reasonably have known during trial.” Id. at 1016 (citing State v. Estrada, 537 A.2d 983, 987 (R.I. 1988)).

2004“In order for the exception to apply, however, the error asserted must go beyond the level of harmless error, the record must be ‘sufficient to permit a determination of the issue,’ and counsel’s failure to raise the issue must be premised upon ‘a novel rule of law that counsel could not reasonably have known during the trial.’ ” Id. at 141-42 (quoting State v. Estrada, 537 A.2d 983, 987 (R.I.1988)).

2015The record must be sufficient to permit a determination of the issue, and counsel’s failure to raise the issue must be premised upon a novel rule of law that counsel could not reasonably have known during the trial.” State v. Mastracchio, 672 A.2d 438, 446 (R.I. 1996) (internal quotation marks omitted); see also State v. Donato, 592 A.2d 140, 141-42 (R.I. 1991).

2015The record must be sufficient to permit a determination of the issue, and counsel’s failure to raise the issue must be premised upon a novel rule of law that counsel could not reasonably have known during the trial.” State v. Mastracchio, 672 A.2d 438, 446 (R.I. 1996) (internal quotation marks omitted); see also State v. Donato, 592 A.2d 140, 141-42 (R.I. 1991).

2015For that exception to be applicable, however, "the alleged error must be more than harmless, and the exception must implicate an issue of constitutional dimension derived *243 from a novel rule of law that could not reasonably have been known to counsel at the time of trial.” State v. Breen, 767 A.2d 50, 57 (R.I.2001); see also State v. Figuereo, 31 A.3d 1283 , 1289 n. 7 (R.I.2011); State v. Texter, 896 A.2d 40, 43 (R.I.2006); see generally Pollard v. Acer Group, 870 A.2d 429, 432, 433 (R.I.2005).

2008For that exception to apply, however, "the alleged error must be more than harmless, and the exception must implicate 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.” State v. Breen, 767 A.2d 50, 57 (R.I.2001); see generally Pollard, v. Acer Group, 870 A.2d 429, 432-33 (R.I.2005); State v. Burke, 522 A.2d 725, 731-32 (R.I.1987).

2022We have recognized a narrow exception to the raise-or-waive rule: - 15 - where the alleged error is “more than harmless,” State v. Bouffard, 945 A.2d 305, 311-12 (R.I. 2008), and “an issue of constitutional dimension based on a novel rule of law is presented of which counsel could not reasonably have known during the course of trial.” State v. Gomes, 690 A.2d 310, 319 (R.I. 1997) (quoting State v. Leonardo, 677 A.2d 1336, 1337 (R.I. 1996)).

2021Although on occasion we have “recognized a narrow exception to the raise or waive rule,” to qualify for this relief “the alleged error must be more than harmless, and the exception must implicate 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.” State v. Bouffard, 945 A.2d 305, 311, 312 (R.I. 2008) (citations omitted).

2008See Foster-Glocester Regional School Committee v. Board of Review , 854 A.2d 1008 , 1018-1019 (R.I. 2004). 12 There is an exception to the raise or waive doctrine, but in order to "qualify as an exception to the rule, the error complained of must be more than harmless error, the record must be sufficient to permit a determination of the issue, the issue must be of constitutional dimension, and counsel's failure to raise the issue must be attributed to a novel rule of law that counsel could not reasonably have known during trial." State v. Hallenbeck , 878 A.2d 992 , 1018 (R.I. 2005) (quoting S

2000We have held that: "To qualify as an exception to the rule, the error complained of must be more than harmless error, the record must be sufficient to permit a determination of the issue, the issue must be of constitutional dimension, and counsel's failure to raise the issue must be attributed to a novel rule of law *821 that counsel could not reasonably have known during trial.” State v. Rupert, 649 A.2d 1013, 1016 (R.I.1994) (citing State v. Estrada, 537 A.2d 983, 987 (R.I.1988)).

2024State v. Cronan, 774 A.2d 866, 878 (R.I. 2001)).

2016State v. Cronan, 774 A.2d 866, 878 (R.I. 2001)).

2024See id. - 16 - a determination of the issue; and (3) that counsel’s failure to raise the issue before trial must be premised upon a novel rule of law that counsel could not reasonably have known during the trial.” Florez, 138 A.3d at 796 (brackets omitted) (quoting Cronan ex rel.

2021In addition, according to this Court’s long-standing, and staunchly adhered to, raise-or-waive rule, “a litigant cannot raise an objection or advance a new theory on ‐5‐ appeal if it was not raised before the trial court.” Cusick v. Cusick, 210 A.3d 1199, 1203 (R.I. 2019) (quoting Rohena v. City of Providence, 154 A.3d 935, 938 (R.I. 2017)). “[T]here is a narrow exception to the raise-or-waive rule where the alleged error is more than harmless, and the exception implicates an issue of constitutional dimension derived from a novel rule of law that could not reasonably have been known to counsel

2007Second, the record must be sufficient to permit a determination of the issue. * * * Third, counsel's failure to raise the issue at trial must be due to the fact that the issue is based on a novel rule of law of which counsel could not reasonably have known at the time of trial.’ State v. Lynch, 854 A.2d 1022, 1040 (R.I.2004) 4 .

2006Second, the record must be sufficient to permit a determination of the issue. * * * Third, counsel’s failure to raise the issue at trial must be due to the fact that the issue is based upon a novel rule of law of which counsel could not reasonably have known at the time of trial.” State v. Lynch, 854 A.2d 1022, 1040 (R.I. 2004) (quoting State v. Ramsey, 844 A.2d 715, 719 (R.I.2004)).

2007Second, the record must be sufficient to permit a determination of the issue. * * * Third, counsel’s failure to raise the issue at trial must be due to the fact that the issue is based upon a novel rule of law which counsel could not reasonably have known at the time of trial.’ ” Id. (quoting State v. Smith, 766 A.2d 913, 919 (R.I.2001)).

2004Second, the record must be sufficient to permit a determination of the issue. * * * Third, counsel's failure to raise the issue at trial must be due to the fact that the issue is based upon a novel rule of law of which counsel could not reasonably have known at the time of trial." State v. Ramsey, 844 A.2d 715, 719 (R.I.2004) (quoting State v. Smith, 766 A.2d 913, 919 (R.I.2001)).

2024“We also recognize that there is a narrow exception to the raise-or-waive rule where the alleged error is more than harmless, and the exception 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.” Decathlon Investments v. Medeiros, 252 A.3d 268 , 270 (R.I. 2021) (quoting State v. Brown, 9 A.3d 1240, 1246 (R.I. 2010)).

2024The defendant indicates that this case differs from that of McKenna because McKenna “did not involve the clear dichotomy extant here, i.e., the difference—if there is one—between magistrates and judges.” She contends that “McKenna was concerned with the process by which magistrates are appointed[,]” whereas the issue in this case is “whether magistrates are in fact judges in disguise * * * [a]nd if they are, then the disguise is so effective that ordinary lawyers appearing before them would have no way of knowing that there is an issue to raise.” This distinction, however, does not reveal “a n

2024See id. - 16 - a determination of the issue; and (3) that counsel’s failure to raise the issue before trial must be premised upon a novel rule of law that counsel could not reasonably have known during the trial.” Florez, 138 A.3d at 796 (brackets omitted) (quoting Cronan ex rel.

2016We have recognized but one exception to the raise-or-waive rule where “basic constitutional rights are concerned.” State v. Gomez, 848 A.2d 221, 237 (R.I. 2004) (quoting State v. Donato, 592 A.2d 140, 141 (R.I. 1991)). “[T]o fall within this exception, the defendant must show: (1) *175 that the error complained of amounts to more than harmless error; (2) that a sufficient record exists to permit a determination of the issue; and (3) that ‘counsel’s failure to raise the issue [before trial] must be premised upon a novel rule of law that counsel could not reasonably have known during the trial.’

2016We have recognized but one exception to the raise-or-waive rule where “basic constitutional rights are concerned.” State v. Gomez, 848 A.2d 221, 237 (R.I. 2004) (quoting State v. Donato, 592 A.2d 140, 141 (R.I. 1991)). “[T]o fall within this exception, the defendant must show: (1) *175 that the error complained of amounts to more than harmless error; (2) that a sufficient record exists to permit a determination of the issue; and (3) that ‘counsel’s failure to raise the issue [before trial] must be premised upon a novel rule of law that counsel could not reasonably have known during the trial.’

2016It is well settled that our raise-or-waive rule generally “will not be disturbed unless ‘basic constitutional rights are concerned.’ ” Bido, 941 A.2d at 829 (quoting State v. Gomez, 848 A.2d 221, 237 (R.I.2004)). “[T]o fall within this exception, the defendant must show: (1) that the error complained of amounts to more than harmless error; (2) that a sufficient record exists to permit a determination of the issue; and (3) that ‘counsel’s failure to raise the issue [before trial] must be premised upon a novel rule of law that counsel could not reasonably have known during the trial.’ ” Cronan e

2015For that exception to be applicable, however, "the alleged error must be more than harmless, and the exception must implicate an issue of constitutional dimension derived *243 from a novel rule of law that could not reasonably have been known to counsel at the time of trial.” State v. Breen, 767 A.2d 50, 57 (R.I.2001); see also State v. Figuereo, 31 A.3d 1283 , 1289 n. 7 (R.I.2011); State v. Texter, 896 A.2d 40, 43 (R.I.2006); see generally Pollard v. Acer Group, 870 A.2d 429, 432, 433 (R.I.2005).

2012We have recognized an exception to the raise or waive rule in the context of basic constitutional rights when "the alleged error [was] more than harmless, and the exception * * * implicate[s] 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.” State v. Breen, 767 A.2d 50, 57 (R.I.2001); see also State v. Figuereo, 31 A.3d 1283 , 1289 n. 7 (R.I.2011).

2007State v. Portes, 840 A.2d 1131, 1141 (R.I.2004); see also State v. Fortes, 922 A.2d 143 , 149 n. 4 (R.I.2007); State v. Remy, 910 A.2d 793, 800 (R.I.2006).

2007State v. Remy, 910 A.2d 793, 800 (R.I.2006).

2006Second, the record must be sufficient to permit a determination of the issue. * * * Third, counsel’s failure to raise the issue at trial must be due to the fact that the issue is based upon a novel rule of law of which counsel could not reasonably have known at the time of trial.” State v. Lynch, 854 A.2d 1022, 1040 (R.I. 2004) (quoting State v. Ramsey, 844 A.2d 715, 719 (R.I.2004)).

2004Second, the record must be sufficient to permit a determination of the issue. * * * Third, counsel's failure to raise the issue at trial must be due to the fact that the issue is based upon a novel rule of law of which counsel could not reasonably have known at the time of trial." State v. Ramsey, 844 A.2d 715, 719 (R.I.2004) (quoting State v. Smith, 766 A.2d 913, 919 (R.I.2001)).

2003Coumoyer did, however, assert that she was certain that the man she had selected from the photo array was the man that held the weapon in pursuit of Wilson. 5 .This Court has acknowledged an exception to the raise-or-waive rule when there exists 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 the proceeding in the Superior Court. *502 State v. Kilburn, 809 A.2d 476, 479 (R.I.2002) (per curiam) (citing Roe v. Gelineau, 794 A.2d 476, 482 (R.I.2002)).

2002Roe v. Gelineau, 794 A.2d 476, 482 (R.I.2002); see also State v. Burke, 522 A.2d 725, 731 (R.I.1987).

2008See Foster-Glocester Regional School Committee v. Board of Review , 854 A.2d 1008 , 1018-1019 (R.I. 2004). 12 There is an exception to the raise or waive doctrine, but in order to "qualify as an exception to the rule, the error complained of must be more than harmless error, the record must be sufficient to permit a determination of the issue, the issue must be of constitutional dimension, and counsel's failure to raise the issue must be attributed to a novel rule of law that counsel could not reasonably have known during trial." State v. Hallenbeck , 878 A.2d 992 , 1018 (R.I. 2005) (quoting S

2008However, for a party to circumvent the rule, "the error complained of must be more than harmless error, the record must be sufficient to permit a determination of the issue, the issue must be of constitutional dimension, and counsel's failure to raise the issue must be attributed to a novel rule of law that counsel could not reasonably have known during trial." State v. Hallenbeck , 878 A.2d 992 , 1018 (R.I. 2005).

2005Under Burke , the error complained of must consist of more than harmless error, the record must be sufficient to permit a determination of the issue, and counsel’s failure to raise the issue at trial must be attributed to a novel rule of law that counsel could not reasonably have known at the time of trial.” Portes, 840 A.2d at 1141 .

2004The challenged error was more than harmless, it was sufficiently addressed in the record and it was not raised because it constituted "a novel rule of law that counsel could not reasonably have known at the time of trial." Id.

2023Second, the record must be sufficient to permit a determination of the issue. * * * Third, counsel’s failure to raise the issue at trial must be due to the fact that the issue is based upon a novel rule of law which counsel could not reasonably have known at the time of trial.” Shoucair v. Brown University, 917 A.2d 418, 428 (R.I. 2007) (quoting Harvey Realty v. Killingly Manor Condominium Association, 787 A.2d 465, 467 (R.I. 2001)).

2010Id. *Page 24 The Rhode Island Supreme Court "has not explicitly held that the raise-or-waive doctrine applies to administrative proceedings. . . ." East Bay Cmty Dev.

2005This Court has carved out an exception to this rule when “ ‘basic constitutional rights are concerned,’ * * * the alleged error [is] more than harmless, and the exception * * * implicate^] 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.

2004See id.