State v. Larrabee

Justice LEE,

dissenting:

1 39 I share some of the majority's discomfort with statements made by the prosecutor during closing argument. The prosecutor's allusion to abuse of the victim's mother seems to have run afoul of the district court's in limine ruling. But defense counsel made no objection to these statements. And because the lack of an objection could easily have been strategie (to avoid highlighting, or turning vague allusions into significant issues), I find no room in the deferential Strickland standard for reversal on ineffective assistance of counsel grounds.

1 40 The majority does not appear to challenge this premise (of a strategie basis for defense counsel's silence). But it concludes that counsel's strategie basis was not a sound one given the "extremely prejudicial nature" *1147of the prosecutor's remarks. Supra ¶ 20. And it offers a number of grounds for avoiding the usual implication of a strategie basis for the lack of an objection by trial counsel (which is the failure of the ineffective assistance claim under Strickland )-in asserting, for example, that endorsing this strategy would cripple Strickland-based challenges to prosecutorial misconduct, or would allow prosecutors to "engage in improper conduct without consequence." Supra ¶¶ 30-31.

T 41 I respectfully dissent. The majority's premise (that the comments were "extremely prejudicial") is overstated. And the resulting conclusion (that the strategy should be rejected) is unfaithful to Strickland. I would affirm under Strickland, as I read that precedent to foreclose the argument endorsed by the majority.

11 42 I would also reject Larrabee's alternative ground for reversal-his notion of error under a so-called doctrine of prosecutorial misconduct. Notwithstanding some dicta in our case law, I find no constitutional or statutory authority for our independent review of the record for an assessment of "prosecutorial misconduct." An appellate court wields only the judicial power afforded by law, and that power is limited to the review of lower-court decisions for error. And with that proper focus (on error), Larrabee's argument fails, as there is no room for a finding of plain error in the district court's failure to interject itself into the proceedings sua sponte.1

I. INEFFECTIVE ASSISTANCE OF COUNSEL

[43 Like the majority, I am troubled by the challenged statements made by the prosecutor in closing argument. The prosecutor's reference to Larrabee's alleged past abuse of the victim's mother ran afoul of the court's ruling in limine. An objection could certainly have been made, and probably should have been sustained.

1 44 But of course there was no objection, and as the majority properly concludes, Lar-rabee cannot be deemed to have preserved an objection by filing a motion to arrest judgment. Supra ¶ 16. And once we reach that conclusion, the question for our review is limited to the Strickland analysis of Larra-bee's ineffective assistance of counsel claim. I would analyze that question directly-without the distraction of a subjective assessment of whether the prosecution crossed some ill-*1148defined line of "misconduct." Supra ¶ 33. And I would affirm on the ground that there is an easily defensible strategic basis for defense counsel's failure to object to the problematic statement made by the prosecutor in closing argument. In so doing, I would also reject the majority's grounds for avoiding that conclusion.

A. Strategic Grounds For Counsel's Alleged Failings

1 45 The strategic grounds for forgoing an objection in this case are straightforward. The prosecutor's allusion to Larrabee's possible-or hypothetical-abuse of the victim's mother (Jamie) were objectionable. But in my view the majority overstates things in repeatedly characterizing them as "extremely prejudicial" or "inflammatory and prejudicial." Supra ¶¶ 20, 22-28. These statements appear to refer to a matter ruled out of bounds on a ruling in limine-the matter of Jamie's allegation that she was sexually abused by Larrabee.2 And for that reason any objection on this matter should properly have been sustained. See supra ¶ 27. But again an objection might easily have done more harm than good, and it was accordingly within counsel's strategic judgment to stand pat instead of calling attention to the matter.

46 The prosecutor's allusion to abuse of Jamie was in the context of a response to defense counsel's argument that Jamie "had it in for" Larrabee and thus had a motive to fabricate the charge of sexual abuse. If Jamie had truly hated Larrabee, she would, in the prosecutor's view, have sought to vindicate her hatred at a time when Larrabee was still involved in her life. It was in advancing this argument that the prosecutor asked "[wlhen he's dragging [Jamie] back to the house in Arizona, how come she doesn't seream and say look what he's doing to me? He's sexually abusing me. He's doing all these things.... Why didn't she have the vengeance then? Why does she wait until she's not in his life at all?" In this context, the problematic import of the reference to abuse of Jamie was relatively minor.3 It could be understood as a mere hypothetical-as attempting to undermine the prosecution's motive-to-fabricate theory by suggesting that Jamie's alleged hatred could have caused her to fabricate something as outrageous and unfounded as abuse of Jamie.

1 47 It could also have been understood as more pernicious. And I do not deny that the reference crossed a line drawn by the judge in her ruling in limine. But that is not the question. The question is whether counsel could have had a strategic basis for standing pat instead of asserting an objection. The answer to that question strikes me as clear. In light of the vague, arguably hypothetical nature of the allusion to abuse of Jamie, an objection could easily have done more harm than good.4 It could have caused the jury to ruminate more extensively about the possibility of actual (not hypothetical) abuse by Lar-*1149rabee of Jamie, in a manner not easily erased by a clarifying instruction.5

B. Strickland's Strong Presumption

T48 Such strategie grounds are easily enough to sustain the determination that counsel's performance survives the "highly deferential" review prescribed by Strickland. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland established a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" guaranteed by the Constitution. Id. Recognizing the "distorting effect[ ] of hindsight," and warning that a "proliferation of ineffectiveness challenges" could "dampen the ardor and impair the independence of defense counsel," the Strickland court set a high bar for rebutting the presumption of the propriety of defense counsel's performance. Id. at 689-90, 104 S.Ct. 2052. It noted, in particular, that "there are countless ways to provide effective assistance in any given case," and that "[even the best criminal defense attorneys would not defend a particular client in the same way." Id. at 689, 104 S.Ct. 2052. And of particular importance here, Strickland held that counsel's acts or omissions withstand serutiny-falling squarely within the "strong presumption"-when there is reason to conclude that they "might be considered sound trial strategy." Id. (internal quotation marks omitted).

1 49 That is certainly the case here, as the notion of minimizing rather than highlighting problematic assertions at closing argument is widely endorsed as a technique of wise trial strategy 6 and likewise upheld under Strickland review.7

*1150C. Incompatibility of the Majority's Analysis With Strickland

1 50 The majority concedes that a decision not to "object can be both strategic and proper." Supra ¶ 27. But it declines to extend that principle to this case, citing the "difficult" nature of this case as a ground for drawing the Strickland "line in a different place." Supra ¶ 28.

€51 I see no room under Strickland for the line-drawing engaged in by the majority. Strickland draws a bright line-one affording the benefit of any doubt to defense counsel. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. And in close cases like this one, the presumption in favor of trial counsel is dispositive; it requires rejection of a claim for ineffective assistance. Id.

" 52 In declining to afford trial counsel the benefit of the doubt, the court asserts that accepting the "fear of highlighting" strategy will cripple Strickland challenges to prosecu-torial misconduct, supra ¶ 30; it complains that endorsing that strategy will allow prosecutors to "engage in improper conduct without consequence," supra ¶ 31; and it notes that the decision facing trial counsel will often amount to a "Hobson's choice," supra ¶ 32. These concerns are both speculative and overstated, and the court's conclusions seem to me to be foreclosed by Strickland.

1

1[ 53 The court's concerns about the impact of accepting the "fear of highlighting" strategy, supra ¶ 30, are overstated. Not all misstatements at trial could strategically be passed over on "highlighting" grounds. Some misrepresentations of the record would prove so misleading that no reasonable defense lawyer could deem the fear of highlighting to outweigh the prejudice it produces. And in such cases, the Strickland presumption would be overcome in the absence of any reasonable basis for concluding that counsel's omission "might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

54 The court's concern for the supposed incentive for prosecutorial misconduct is also overstated. It cannot be said that the "highlighting" strategy will "almost always be available to the State" in cases where "defense counsel fails to object to improper comments." Supra ¶ 31. Nor is it accurate to say that such strategic basis would "permit the State to engage in improper conduct without consequence," thereby "insulating the State from objection to its misconduct." Id.

1 55 Strickland applies on a case by case basis, not a categorical one. So the law would not always permit the State to defeat an ineffective assistance claim by trotting out a "fear of highlighting" argument. Strickland accounts for the complex realities of criminal trials, recognizing that the decision whether to object at closing argument in*1151volves a careful weighing of both the concern for prejudice and the problem of highlighting. At some point the concern for prejudice predominates, and the only reasonable response is an objection. Then and only then does the failure to object sustain reversal under Strickland. Otherwise it is the province of defense counsel to strike the balance in favor of the decision to forgo an objection and avoid the problem of highlighting.

T56 The question of where to draw the line-of when to object and when to stand pat-is admittedly difficult. I suppose it could even be said that the question puts defense counsel to something of a "Hobson's choice," in which both "alternatives" may seem "equally objectionable." Supre %82. But that is hardly a basis for second-guessing and discrediting counsel's performance as constitutionally deficient. See supra 128 (recognizing that Larrabee's defense counsel faced a difficult decision in knowing whether to object, but nonetheless concluding that he acted ineffectively). Strickland dictates the opposite conclusion. It emphasizes the fact that there are "countless ways to provide effective assistance in any given case," and notes that "(elven the best criminal defense attorneys would not defend a particular client in the same way." 466 U.S. at 689, 104 S.Ct. 2052. And it mandates affirmance-on a presumption of effectiveness-in circumstances where counsel's performance falls within the range of decisions that could be made on matters (such as a Hobson's choice) calling for a subjective judgment-call. Id. at 690, 104 S.Ct. 2052.

157 In any event, I see no reason to expect our application of Strickland to "permit{ ] the State to engage in improper conduct without consequence." Supra ¶ 32. The potential for a Strickland reversal is hardly the only disincentive for prosecutorial error. Prosecutors are officers of the court, whose duty it is to live up to a standard of professionalism and responsibility that extends beyond the short-sighted goal of sue-cess in a particular case. We should assume good faith in their performance of that duty. And even in cases where that duty is not enough, there are other downsides beyond Strickland reversal. Prosecutors must also be wary of potential repercussions at trial-from a judge who may call out a prosecutor for crossing a line (on objection or on the judge's own volition) or from a jury whose sense of propriety may likewise be inflamed.

€58 For me this is more than enough to refute the parade of horribles portrayed by the court. A faithful application of the "strong presumption" of Strickland can hardly be dismissed as a cataclysmic beginning of the end for prosecutorial ethics. Regardless of Strickland, prosecutors will retain plenty of incentives to refrain from misconduct. '

2

€59 In any event, Strickland appears to me to foreclose the majority's analysis. As a subordinate court on matters of federal constitutional law, we are bound to follow Strick-lamd-whether or not we find its downsides (in lowering barriers to prosecutorial misconduct, or in burdening ineffective assistance claims that we may deem meritorious) to outweigh its upsides (of avoiding a "proliferation of ineffectiveness challenges" that could "dampen the ardor and impair the independence of defense counsel," Strickland, 466 U.S. at 690, 104 S.Ct. 2052.). The U.S. Supreme Court has already struck the policy balance as a matter of federal constitutional law. And we are not at liberty to strike it differently.

T 60 In my view our court has effectively done so in carving out "fear of highlighting" considerations as subject to a heightened level of scrutiny. See supra ¶ 31 (suggesting that such considerations must be "analyzed with some skepticism"). Strickland countenances no hierarchy of strategies. It speaks categorically in prescribing a strong presumption in favor of the propriety of defense counsel's performance, with a safe harbor for any decision that "might be considered sound trial strategy." 466 U.S. at 689, 104 S.Ct. 2052 (internal quotation marks omitted).

T°61 That conclusion is reinforced by an extensive body of case law decided in Strick-*1152lands wake.8 In such cases, federal and state courts alike (including this one) have consistently honored the strong presumption in favor of defense counsel's performance in cases where counsel's challenged act or omission could plausibly be considered sound trial strategy.9 They have done so, moreover, in cases involving misstatements by prosecutors.10

*1153T 62 We should follow these cases-and the U.S. Supreme Court decision that spawned them. Faithfully applied, that authority requires affirmance. I respectfully dissent on that basis.

II. PROSECUTORIAL MISCONDUCT AND PLAIN ERROR

1 63 I would also reject Larrabee's alternative ground for reversal, which is rooted in a so-called doctrine of prosecutorial misconduct. In support of this argument, Larrabee invokes case law purportedly calling for reversal in the face of prosecutorial statements that "call to the attention of ... jurors matters which they would not be justified in considering in determining their verdict," see State v. Ross, 2007 UT 89, ¶ 54, 174 P.3d 628-at least where jurors were "probably influenced by those remarks," id., and where the prosecutor's comments were "so obviously improper that the trial court had an opportunity to address the error," State v. Calliham, 2002 UT 86, ¶ 62, 55 P.3d 573.

{64 The standards invoked by Larrabee are problematic. His notion of a standalone doctrine of prosecutorial misconduct is a distortion of our adversary system, of our law of preservation, and of the constitutional and statutory restraints on our appellate power. And his proposed standard of review is an effective override of the settled plain error standard.

' 65 I would accordingly reject the premises of Larrabee's argument. In so doing, however, I would recognize that our case law leaves some room for his proposed approach. I would acknowledge, in particular, that our cases have apparently characterized "prose-cutorial misconduct" as a standalone basis for direct review of the actions of prosecutors. See e.g., Ross, 2007 UT 89, ¶ 54, 174 P.3d 628. And I would concede that we have also suggested that prosecutorial misconduct may somehow lower the showing required to demonstrate plain error. See Calliham, 2002 UT 86, ¶ 62, 55 P.3d 573.

T66 In noting these strands of our case law, however, I would definitively repudiate them. I would find them incompatible with the constitutional and statutory limits on our jurisdiction, and with longstanding tenets of the adversary system and of appellate review. We should repudiate the above-noted case law on those grounds. I would do so here, and I would reject Larrabee's alternative ground for reversal on that basis.

A. Prosecutorial Misconduct and the Law of Preservation

¶ 67 State v. Ross involved an appeal from a conviction for aggravated murder, in which the defendant claimed that the prosecutor had "committed prosecutorial misconduct during closing argument." 2007 UT 89, ¶ 3, 174 P.3d 628. In affirming (in part), we noted that the prosecutor's statements drew no objection, and purported to apply a plain error standard of review, Id. ¶ 53. Yet we did not proceed to analyze the question whether there was plain error in the failure to exclude the prosecutor's statements. Instead we "considerfed] whether the State's remarks during closing arguments constitute[d] prosecutorial misconduct," set forth a two-part "test for prosecutorial misconduct," and analyzed the matter in terms of whether the prosecutor's remarks were harmless (not whether there was plain error in failing to exclude them sua sponte). Id. ¶¶ 53-58.

T 68 Larrabee invokes Ross as a basis for a standalone doctrine of prosecutorial misconduct-for a doctrine of direct review of pros-ecutorial acts, independent of any review of lower court decisions. I would repudiate that reading of Ross, and thus reject it as an alternative ground for reversal.

*11541

T 69 Our power to decide cases on appeal is defined by article VIII section 3 of the Utah Constitution. Under that provision, we have the power to issue writs and to exercise "appellate jurisdiction over all other matters to be exercised as provided by statute." Utah Const, art. 3, § 3.11 Our jurisdictional statutes, in turn, confine our power to the review of "judgments," "orders," and "decrees" of the lower courts and agencies in our state system."12

{70 These provisions are clear and unequivocal. They limit our authority to the review of lower court decisions. We have no power, under the jurisdictional statutes incorporated by reference in our constitution, to embark on a broader quest for justice.

2

T71 This framework is hardly unique to Utah. It is a reflection of an approach to appellate review that was embraced long ago in courts throughout the United States. That approach involved the adoption of a "writ of error" model of appellate review- and the corresponding rejection of the "appeal in equity" model. See Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule, 40 Vand. L. Rev. 1023, 1026-28 (1987).

T 72 Both models are found in our British common law roots. Historically, the "appeal in equity" provided for review "de novo"-a review in which "[the appellate court could review the entire case, both law and facts, and render any type of judgment it thought justice demanded, without regard to whether the issue upon which the appellate court based its judgment had been presented to the lower court." Id. at 1027. The writ of error model, by contrast, called only for a determination "whether the judge had made an error." Id. at 1026-27.

173 "American appellate procedure followed the writ of error model rather than the appeal in equity" approach. Id. at 1027-28. Consequently, American appellate courts do not supervise trials and do "not ... test whether the proper party hals] won." Id. at 1026. Rather, they review decisions made by lower courts for error. See Peatross v. Bd. of Comm'rs of Salt Lake Cnty., 555 P.2d 281, 284 (Utah 1976) ("Appellate jurisdiction is the authority to review the actions or judgment of an inferior tribunal upon the record made in that tribunal, and to affirm, modify or reverse such action or judgment.").13

T74 Our constitution and governing jurisdictional statutes unequivocally embrace this model. We should accordingly reject those elements of our prior case law that appear to *1155endorse a wide-ranging authority to seek justice without regard to error.

B. Plain Error Review

T 75 Because we lack the authority to review the prosecutor's statements directly, we are left only to review the district court's judgment for error. And the only decision ripe for our review is the trial court's failure to intervene in the prosecutor's closing argument. I would review that decision under a plain error standard (since there was no objection), and I would find no difficulty affirming.

T76 "Plain error" is an exception to our preservation rules. It allows us to consider certain matters never raised for consideration by the lower court, but only in limited cirenumstances defined by our cases. See State v. Harris, 2012 UT 77, ¶ 24, 289 P.3d 591 (defining plain error as a "carefully cir-cumseribed exception to the requirement of preservation" that "Iwle invoke ... sparingly," and noting that an error can be plain only if it "should have been obvious to the trial court").

T77 Larrabee advocates an altered standard of plain error review. Citing Calliham, 2002 UT 86, ¶ 62, 55 P.3d 573, he asserts that his burden is not to demonstrate an "obvious" error in the district court's decision (not to exclude the prosecutor's statements sua sponte), but only to show that the prosecutor's statements were sufficiently obvious that "the trial court had an opportunity to address the error." Id. I1 would not read Calliham's dictum to override our longstanding standard of plain error. That standard is well-embedded in our case law, and entirely incompatible with the mere "opportunity" standard advanced by Larrabee. We should repudiate the Calliham dictum and reiterate that unpreserved objections to prosecutorial misstatements are reviewed under a standard plain error standard.

T78 Ours is an adversary system. For a variety of good reasons,14 our system leaves evidentiary objections in the hands of the parties. It recognizes that "the judge's ga-tekeeping responsibility is defined and shaped by the objections and motions made by counsel." Wilson v. IHC Hospitals, Inc., 2012 UT 43, ¶ 135, 289 P.3d 369 (Lee, J., dissenting).15 Thus, we do not generally expect the trial judge to interject himself into the process.16 We acknowledge that a judge is "not to undertake proactive, sua sponte efforts to keep inadmissible evidence from *1156affecting the jury," but only "to make appropriate rulings on objections or motions made by counsel in that regard." Id.17

I 79 Even on plain error review, the appellate role is informed by the writ-of-error model. Our review is not an ethereal search for justice, but a determination whether the lower court plainly erred in not resolving sua sponte a matter not preserved by the parties. See King, 2006 UT 3, ¶ 22, 131 P.3d 202 (explaining that the first element of "plain error" is a showing that the "trial court erred" by "acting beyond the limits of rea-sonability" (internal quotations marks omitted)).18

1 80 Sua sponte intervention is particularly problematic at the closing argument stage, when counsel is granted substantial leeway. Dibello, 780 P.2d at 1225. For all the reasons explained in part I above, defense counsel could reasonably have decided that the prosecutor's statements were better ignored than highlighted. And there is accordingly no basis for a determination of error on the part of the district court-much less error that is "plain."

. The majority stops short of engaging the merits of these issues in detail, asserting that they were not preserved and thus are "unnecessary" to our disposition of this appeal. Supra ¶ 16, n. 8 (quoting Summit Water Distribution Co. v. Summit Cnty., 2005 UT 73, ¶ 50, 123 P.3d 437). Alternatively, the court notes that our caselaw's endorsement of the doctrine of prosecutorial misconduct is "longstanding" and in line with "a position shared by courts throughout the country." Id.

I am unpersuaded. First, Larrabee's prosecu-torial misconduct arguments are unnecessary to the majority's disposition of the case, but not to mine. A core role of a dissenting opinion is to outline the grounds on which it would dispose of the case-whether or not those grounds are identical to those addressed by the majority. And because I would reject Larrabee's ineffective assistance of counsel ground for reversal, I must proceed to consider his alternative argument for reversal (under a doctrine of direct review of prosecutorial misconduct). So my consideration of these issues is hardly unnecessary, and my opinion not at all "advisory." See supra ¶ 16, n. 8 (quoting Summit Water, 2005 UT 73, ¶ 50, 123 P.3d 437).

Second, Larrabee's failure "to preserve the issue of prosecutorial misconduct for appeal," supra ¶ 16, n. 8, is no barrier to its consideration under the cases he cites. Those cases prescribe a standard for direct review of prosecutorial misconduct even absent preservation. See infra ¶ 67 (noting that there was no objection to prosecuto-rial misconduct in State v. Ross and that our analysis asked only whether prosecutor's misstatements were harmless). That is the whole point of an independent doctrine of prosecutorial misconduct. Where prosecutorial statements are met with an objection, the analysis on appeal focuses not on the prosecutor's conduct but on the district court's decision ruling on the objection. So prosecutorial misconduct itself comes into play only in the absence of an objection. (Yet that is the domain of plain error review and of claims for ineffective assistance of counsel. So the notion of a freestanding doctrine of prose-cutorial misconduct invades the lines of these doctrines and threatens to distort the law in this important field, in a manner I explain below.)

Finally, the cases cited by the majority are insufficient to persuade me of the wisdom of the court's "endorsement of this doctrine." Supra ¶ 16, n. 8. None of these cases even considers-much less refutes-the concerns raised below. And if, as I suggest, this doctrine is incompatible with our adversary system and with venerable limitations on our appellate jurisdiction, then it matters not at all how widely accepted it may be.

. I take issue, however, with the majority's characterization of the statement as an "explicit[ ] refer[ence] to allegations of child sexual abuse." Supra ¶ 23. The comment might have referenced some form of sexual abuse, but it certainly did not explicitly argue that it was child sex abuse. Id.

. The majority ignores this important context in noting that "defense counsel should have ... recognized" the remark as "inflammatory." Supra ¶ 25. But this context is important. Given that defense counsel had argued that Jamie "had it in" for Larrabee, defense counsel could have reasonably believed that the jury-which had "heard absolutely nothing regarding" a prior instance of child sex abuse-would have viewed the prosecutor's vague statement as a mere hypothetical response to his earlier argument, not as a "bald accusation that the defendant ha[d] a history of child sex abuse" that would have been "shocking" to the jury. Supra ¶ 25 n. 23.

. - The point is not that I find the remark "vague" or "hypothetical." Supra ¶ 25 n. 23. I am only suggesting that those statements could have been viewed in that light. And that focus is the right one. Strickland does not ask what a reviewing court may think about the impact of the prosecutor's statements. It asks us to place ourselves into defense counsel's shoes in order to assess how counsel would have perceived the prosecutor's statements at the time they were made-giving the benefit of the doubt to the propriety of defense counsel's actions. And, under that standard, if we can articulate a conceivable strategic basis for a failure to object (as I have done), we are required to reject a defendant's ineffectiveness challenge, even if (with the benefit of hindsight) it is now "hard to believe that the impact of those] statements" was "relatively minor." Supra ¶ 25 n. 23.

. Nelson v. Bayer, 235 Fed.Appx. 407, 408-09 (9th Cir.2007) (explaining that the "prosecutor . may have crossed the line by vouching for the credibility of government witnesses" but concluding that defendant could not "overcome the presumption that his attorney's actions (or inac-tions) were based on reasonable trial strategy" since objecting might have had "the undesired effect of emphasizing the point in the jury's mind"); United States v. Habel, 613 F.2d 1321, 1327 (5th Cir.1980) (explaining that an attorney had chosen to "forego objections for tactical reasons" because he had "concluded ... that the injurious impact of the repetition of the contents of Ms. Wollesen's deposition would be outweighed by its value as evidence of her bias"); Caylor v. State, 255 Ga.App. 362, 566 S.E.2d 33, 35 (2002) (rejecting an ineffectiveness challenge premised on a failure to "object to an argument made by the state's counsel in closing argument" because, despite the impropriety of the statement, "objecting would have drawn greater attention to the statement" and the "curative instruction" that would have been given would have left the jury with the impression that "this is pretty important").

. See Gregory G. Sarno, Adequacy of Defense Counsel's Representation of Criminal Client Regarding Argument, 6 AL.R.Ath 16, § 2{b] & n. 74 (1981) ("Whether defense counsel wishes to rebut or 'argue around' improper comments by the prosecutor in the opening statement or the final arguments, or to object to, request a cautionary instruction or an admonition regarding, or seek a mistrial because of, such comments, will inevitably depend on the circumstances.... Some of the pertinent inquiries are: Will an objection, successful or not, merely highlight the objectionable comment in the jurors' minds? Is the declaration of a mistrial, even if possible, a desirable end at this point in the litigation, in view of the way the case has heretofore been proceeding? And how does counsel's client feel about the possibility of undergoing another trial, which may be just as likely to result in an acquittal or conviction as the instant trial irrespective of the dubious remarks?"); see also Lori E. Iwan, Are You Ready for Trial ? Turning Chaos Into Trial Preparation, 52 No. 9 DRI For Der,. 49 (Sept. 2010) ("Preparation also includes knowing when and how to object during a trial for strategic reasons.... Objections are not difficult in the abstract. They become difficult in the midst of a trial because you need to determine instantly whether a question or argument is objectionable, and if so, whether you should lodge the objection or waive it. Rather than objecting to each and every 'objectionable' question, for many strategic reasons an attorney may reserve objections. An objection raised in the middle of a long string of boring questions may alert a jury and highlight a particularly sensitive issue. If a colloquy in front of the jury follows an objection, it may highlight an unfavorable issue. Occasionally, when an attorney objects to a question a court reporter must repeat it, reading it aloud before the judge rules, which only emphasizes the unfavorable point, and the error, to the jury. A series of overruled objections could put an objecting attorney in an unfavorable light before a jury. An attorney must quickly assess questions posed to a witness during a trial and decide if objecting has a favorable strategic value." (citations and internal quotation marks omitted)); Maureen A. Howard, Revisiting Trial Basics Every Time: A Ritual for Courtroom Success, 34 Am. J. Triat Apvoc 335, 362 (2010) ("It is the prerogative of the examining attorney to object when a witness is nonre-sponsive. The danger is that the objection may well highlight the nonresponsive testimony for the jury. As a general proposition, the 'nonre-sponsive' objection is a tripartite endeavor: the *1150lawyer (1) objects to the testimony as 'nonre-sponsive,' (2) moves to strike, and (3) asks the judge to give an instruction to the jury to disregard the testimony,. Doing this can have the unintended consequence of having the testimony repeated multiple times in front of the jury, which is counterproductive. The better road is often to let the non-responsive answer slide." (citations omitted)); Steven Lubet, Objecting, 16 Am. J. Triat Apvoc, 213, 219-20 (1992) (explaining that "counsel must evaluate the tactical situation in order to determine whether the objection is worth making" because "[nJot every valid objection needs to be made" and "there are often good reasons to refrain from objecting," including "possibly los[ing] points with the judge or jury by constantly interrupting the opposition" or fear that an objection might be overruled, which could diminish counsel's credibility in the jury's eyes).

. See Nelson, 235 Fed.Appx. at 408-09 (explaining that the "prosecutor ... may have crossed the line by vouching for the credibility of government witnesses" but concluding that defendant could not "overcome the presumption that his attorney's actions (or inactions) were based on reasonable trial strategy" since objecting might have had "the undesired effect of emphasizing the point in the jury's mind"); Hansford v. Angelone, 244 F.Supp.2d 606, 613 (E.D.Va.2002) (rejecting an ineffectiveness claim premised on failures to object to a variety of prosecu-torial statements at opening and closing argument because "it is frequently better to remain silent rather than to draw attention to the matter").

. This court itself has reinforced the Strickland presumption and its safe harbor for arguable trial strategies. See State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 ("[Dlefendant must overcome the strong presumption that [his] trial counsel rendered adequate assistance, by persuading the court that there was no conceivable tactical basis for counsel's actions." (citation and internal quotation marks omitted) (second alteration in original); State v. Pecht, 2002 UT 41, ¶ 41, 44, 48 P.3d 931 ("A defendant cannot prevail on a claim of ineffective assistance of counsel where the challenged act of omission might be considered sound trial strategy.... The failure of trial strategy ... does not indicate ineffectiveness of counsel.").

. See, e.g., Gonzales, 2005 UT 72, ¶ 72, 125 P.3d 878 (concluding that counsel had not been ineffective in withdrawing her objection to the admission of irrelevant and unfairly prejudicial information since "an attorney's performance will be held ineffective only when there is no tactical or strategic justification for his conduct" and, in this instance, counsel "may have felt that the objection was futile and chose not to object for strategic reasons (such as not drawing attention to this unfortunate information)" (internal quotation marks omitted)); United States v. Roston, 26 Fed.Appx. 677, 678 (9th Cir.2002) (concluding that defendant was unable to show that "counsel's performance fell outside a wide range of reasonableness" because "even if counsel failed to object, he chose to do so for strategic reasons"); People v. Brown, 17 N.Y.3d 742, 743-44, 929 N.Y.S.2d 12, 952 N.E.2d 1004 (N.Y.2011) (rejecting a defendant's assertion that he had been denied ineffective assistance of counsel by "his defense lawyer's failure to object" because defendant "failed to meet his burden of demonstrating a lack of strategic or other legitimate reasons" for that failure and because "the prosecutor's remarks impugned the People's witnesses as well as defendant and therefore were consistent with his own theory that the People's witnesses were simply not credible."); Reed v. State, 285 Ga. 64, 673 S.E.2d 246, 248-49 (2009) (rejecting the contention that defense counsel had performed ineffectively because there were legitimate, tactical bases for all of defense counsel's actions); State v. Watson, 921 So.2d 774, 775 (Fla.Dist.Ct.App.2006) (rejecting an ineffectiveness challenge because there was no evidence that a "failure to object to the seating of the jurors in question was not a strategic decision on [defense counsel's] part.").

. Schauer v. McKee, 401 Fed.Appx. 97, 101 (6th Cir.2010) (holding that a failure to object to prosecutorial statements was not deficient performance under Strickland because "[njot drawing attention to [a] statement may be perfectly sound from a tactical standpoint" (internal quotation marks omitted)); Nelson, 235 Fed.Appx. at 408-09 (explaining that the "prosecutor ... may have crossed the line by vouching for the credibility of government witnesses" but concluding that defendant could not "overcome the presumption that his attorney's actions (or inac-tions) were based on reasonable trial strategy" since objecting might have had "the undesired effect of emphasizing the point in the jury's mind"); Bennett v. Angelone, 92 F.3d 1336, 1349 (4th Cir.1996) (rejecting the contention that trial counsel had been ineffective in failing to object in the face of "improper prosecutorial statements that were "religiously loaded" and also "alluded to Lee Harvey Oswald and a string of murders committed by the Hanafi Muslim sect" in a way that "clearly risked confusing the jury and arousing its prejudices by referring to notorious and grisly crimes not at issue in this case," because trial counsel did not object since "they did not want to appear overly antagonistic to the jury and wanted to portray themselves 'as the good guys'" and "refraining from objecting to avoid irritating the jury is a standard trial tac» tic"); United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir.1993) (concluding that defendant had not been denied effective assistance of counsel where his counsel had failed to object to prosecutor's allegedly-improper vouching at closing argument because "many lawyers refrain from objecting during opening statement and closing argument" so this failure to object was "within the wide range of permissible professional legal conduct" (internal quotation marks omitted)); Hansford, 244 F.Supp.2d at 613 (rejecting an ineffectiveness claim premised on failures to object to a variety of prosecutorial statements at opening and closing argument because "it is frequently better to remain silent rather than to draw attention to the matter"); Dunlap v. People, 173 P.3d 1054, 1080-81 (Colo.2007) (rejecting an ineffective assistance challenge premised on a failure to object to a prosecutorial comment because it was a "reasonable strategic position'" to "not object at every potential opportunity during trial because" doing so "decreases an attorney's credibility with the jury and calls undue attention to the objectionable material"); Day v. Commonwealth, 2003 WL 22220323, at * 3 (Ky.Ct.App.2003) (explaining that defense counsel's failure to object to the prosecutor's closing remarks "did not amount to a deficient performance" because even if the remarks were improper, "an objection at that point in the proceedings might have served only to highlight the details of the aTTack."); Hamm v. State, 913 So.2d 460, 488 (Ala.Crim.App.2002) (rejecting an "ineffective assistance" challenge based on a failure to object *1153to "remarks inflaming the passions of the jurors and urging them to 'send a message' that the community would not tolerate such killings in the county"" because this could have been based on the "legitimate trial strategy' to "avoid infuriating the jury by making needless objections" and "maintain[ing] a good relationship with the jury"); Caylor, 566 S.E.2d at 35 (rejecting an ineffectiveness challenge premised on a failure to "object to an argument made by the state's counsel in closing argument" because, despite the impropriety of the statement, "objecting would have drawn greater attention to the statement" and the "curative instruction" that would have been given would have left the jury with the impression that "this is pretty important").

. Our so-called "supervisory authority' does not alter the landscape. That authority falls outside the bounds of adversary proceedings. It is the power to promulgate rules, such as those governing members of the bar. See Uran Const, art. 8, § 4 ('The Supreme Court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law." {emphasis added)). Our supervisory power is accordingly disconnected from our judicial power to decide cases. It is not an end-run around traditional limitations on our appellate jurisdiction.

. See Uraw Cone § 78A-3-102(3)(a) ('The Supreme Court has appellate jurisdiction, including jurisdiction of interlocutory appeals, over: ... a judgment of the Court of Appeals"); Uran Cops § 78A-3-102(3)(b) (granting jurisdiction over "cases certified to the Supreme Court by the Court of Appeals prior to final judgment by the Court of Appeals"); id. § 78A-3-102(3)(d) (granting jurisdiction over "final orders of the Judicial Conduct Commission"); id. § 78A-3-102(3)(e) (granting jurisdiction over "final orders and decrees in formal adjudicative proceedings originating with" a variety of entities, including the "Public Service Commission"); id. § 78A-3-102(3)(j) (granting jurisdiction over "orders, judgments, and decrees of any court of record over which the Court of Appeals does not have original appellate jurisdiction"). Compare 28 U.S.C. § 1291 (''The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States...").

. See also Marbury v. Madison 5 U.S. (1 Cranch) 137, 175, 2 L.Ed. 60 (1803) (noting that the "essential criterion of appellate jurisdiction" is "that it revises and corrects the proceedings in a cause already instituted, and does not create that cause"); Ex Parte Watkins, 32 U.S. 568, 572-73, 7 Pet. 568, 8 L.Ed. 786 (1833) (explaining the difference between "appellate" and "original" jurisdiction and concluding that review of a lower court's ruling on a habeas petitioner was appellate because it sought to "revise the acts of the circuit court").

. One of these reasons is that sua sponte intervention can interfere with the trial strategy of the parties. See Willis v. Kemp, 838 F.2d 1510, 1519 n. 19 (11th Cir.1988) (noting, in the context of a habeas claim, that "the sua sponte delivery of a curative instruction" in the face of prosecutorial misconduct might "defeat defense strategy"); see also State v. Perry, 124 N.J. 128, 590 A.2d 624, 641 (1991) (rejecting a defendant's assertion that it had been plain error for the trial court to fail to issue a sua sponte jury instruction on self defense because there was a "non-compatible defense strategy" and "courts must carefully refrain from preempting defense counsel's strategic and tactical decisions and possibly prejudicing defendant's chance of acquittal").

. See also State v. King, 2006 UT 3, ¶ 14, 131 P.3d 202 (citing Polster v. Griff's of Am., Inc., 184 Colo. 418, 520 P.2d 745, 747 (1974), for the general rule that "the trial court has no duty to question each piece of evidence offered.... It should not assume the role of advocate and on its own motion, without request therefor, limit, comment upon, qualify, or strike evidence offered by the parties. These are the basic functions of trial counsel in our adversary system of justice and underlie the rationale of the contemporaneous objection rule"); see also Utan R. Evin, 103(a) (noting that "[al party may claim error in a ruling to admits or exclude evidence only if the error affects a substantial right of the party and" the complaining party either "timely objects [to] or moves to strike" admitted evidence).

. See, e.g., King, 2006 UT 3, ¶ 22, 131 P.3d 202 (rejecting a plain error challenge to a trial court's failure to sua sponte intervene in the jury selection process and noting that "[i]t is generally inappropriate for a trial court to interfere with counsel's conscious choices in the jury selection process, notwithstanding the existence of a reasonable basis for objecting to those jurors" (internal quotation marks omitted)); Wilson, 2012 UT 43, ¶ 133, 289 P.3d 369 (Lee, J., dissenting) ("[In my view the trial judge did all that he was appropriately asked to do in response to objections to defense counsel's questions about collateral source material. It may well be, as the majority suggests, that the court could have done more, but the fact of the matter is that plaintiffs' counsel never asked the trial judge to undertake additional curative measures. And since the trial judge was never asked to do so, he cannot in my view be reversed for failing to undertake further measures sua sponte.").

. At an appropriate point, we should reexamine those elements of our "plain error" case law that ignore this fundamental point. See, e.g., State v. Emmett, 839 P.2d 781, 786 (Utah 1992) (concluding that the prosecutor's conduct was "obvious error"" within the meaning of the "plain error" doctrine without recognizing that this holding suggested that the trial court was required to take the extraordinary step of interjecting itself sua sponte into the proceedings); State v. Young, 853 P.2d 327 (Utah 1993) (concluding that an opening statement by the prosecutor, along with some of the questions he posed to a witness, constituted obvious prosecutorial misconduct within the meaning of the plain error doctrine, but not applying the doctrine because the defendant had failed to show prejudice); State v. Saunders, 992 P.2d 951 (Utah 1999) (concluding that comments made at closing argument constituted reversible error under the plain error standard); Calliham, 2002 UT 86, ¶ 62, 55 P.3d 573 (discussed above); Ross, 2007 UT 89, ¶ 57, 174 P.3d 628 (concluding that statements made by a prosecutor at closing argument were obvious error, but declining to apply plain error after concluding that the error was harmless). Any rule that routinely requires sua sponte intervention by the trial court is incompatible with our adversary system-and the writ of error model through which it operates.

. See also Jacob v. Bezzant, 2009 UT 37, ¶ 34, 212 P.3d 535 (noting that plain error review is an exception in circumstances where the "(district] court committed plain error" (alteration in original)); Hill v. Estate of Allred, 2009 UT 28, ¶ 24, 216 P.3d 929 (explaining that plain error review applies "if the lower court committed plain error'"); Robert J. Martineau et al., Appellate Practice and Procedure: Cases and Materials 190 (2d ed. 2005) ("[The exception to the general [preservation] rule most often used by appellate courts is when the trie! court makes an error that is described as plain, basic or fundamental" (emphasis added) (internal quotation marks omitted)).