(concurring, with whom Lynch, J., joins). On the ground that the judge’s failure to instruct in accordance with the law did not create a substantial risk of a miscarriage of justice, the court spares the victim the further terror of a retrial. I disagree only with the court’s description of what the standard of substantial risk of a miscarriage of justice means and with the instructions it issues as to the application of that standard in future cases.
The defendant has had a trial in which his guilt was determined according to rules of law in which he himself acquiesced. In the terminology of our law, he has waived his objections to any errors in the charge. When there has been such a waiver, a miscarriage of justice has only one meaning: that there is a substantial risk that an innocent person has been convicted. There is no such risk here.
It literally makes no sense to proclaim a doctrine of waiver — to insist, as our rules of criminal procedure clearly do, that a defendant make his objections and propose his rulings of law at trial — and then to consider whether there should be a new trial on the basis of an error in instructions that the defendant could have raised but did not. The rule the court proclaims today (but perhaps does not in reality apply) threatens finality and the orderly procedure that the rule of waiver is intended to enforce.1 The reason that claims not timely made at trial are deemed waived is not to make of the trial some kind of arbitrary obstacle course, but to assure that the judge has the opportunity to manage the first and, it is to be hoped, the only trial in a correct and lawful way. Claims not brought to the judge’s attention cannot be ruled on at trial, and the errors they identify cannot be cured. The court’s proposal threatens to undermine the goal of finality by inviting such untimely claims. The stringent-sounding threshold of substantial risk gives uncertain assurance against that danger. The court’s formulation makes the difference between the miscarriage of justice standard and the harmless error standard, which applies to fully preserved claims, one of such imperceptible degree as to provide no discipline at all. A rational system relies not on such uncommunicable and therefore arbitrary distinctions of degree — distinctions that effectively *25leave trial judges and the courts that review them at sea on an ocean of discretion — but on distinctions of kind, distinctions capable of statement, review, and consistency. In the case of the harmless error standard, we ask if we can be quite sure that the outcome of the trial would have been the same had'the error not been committed. In the case of the miscarriage of justice standard, properly understood, we ask whether there is a substantial risk that an innocent person has been convicted. Both standards require an appellate court to second-guess the original trial determination, and neither is mechanical; in these respects they do not differ. But they differ in respect to the questions they ask.
The formulation of miscarriage of justice the court today promulgates not only threatens the concept of waiver, and with it the finality of error-free trial court proceedings (error-free in the sense that, no objections were improperly denied), it makes no sense when fitted into the rest of our body of criminal jurisprudence. The court’s formulation, in effect, makes G. L. c. 278, § 33E, review available in every criminal case. Section 33E provides that, in capital cases, the Supreme Judicial Court must review the whole record and consider even matters not raised below. Under G. L. c. 278, § 33E, “a new trial is called for unless we are substantially confident that, if the error had not been made, the jury verdict would have been the same.” Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998). It is quite clear that we consider such unpreserved errors for the effect they may have had on the outcome of the trial and not just in terms of guilt and innocence. If there is a difference between the standard the court sets out today and the § 33E standard, it is, as I have said, only an ineffable difference of degree, which provides no discipline, assures no regularity, invites arbitrary distinctions, and grants uncertain discretion. With respect to both stalking charges in this case, the judge erred in instructing the jury. Likewise, as to both charges, there was so much evidence against the defendant that a reviewing court need have no doubt that the defendant was guilty. Although the court says that, in affirming these convictions, it is asking what effect the error had on an actual jury, this is an after-the-fact speculation about the effect on a hypothetical jury. It is mere wordplay to suggest that such an inquiry respects the role of an actual jury while the guilt or innocence standard usurps that role. Except for ineffable distinctions of degree, the *26reviewing court’s process of judgment is the same — but the guilt or innocence standard describes that process more candidly. The court’s reference to the strength of the Commonwealth’s case confirms my view.
To be sure, the damage is worse if the court’s conception of a miscarriage of justice is applied to new trial motions as well as to direct appeals, because the lapse of time and corresponding prejudice to the Commonwealth are likely to be greater in the case of new trial motions. But in both cases, there must be a retrial to correct an error the defendant’s timely objection might have avoided initially. That is why our cases do not distinguish clearly and consistently between the application of the doctrine of waiver in the two situations. Because the doctrine of waiver is the same in both circumstances, the formulation the court sets out today is at least in tension with the statutory requirement that a court considering a new trial motion in a capital case may consider only new and substantial questions. See G. L. c. 278, § 33E. Claims that might have been raised previously are waived and may not be considered by the court reviewing the motion. See, e.g., Commonwealth v. Burnett, 428 Mass. 469, 473-474 (1998). The all-purpose definition of miscarriage of justice the court promulgates today recognizes no such force for waiver. Moreover, in deciding whether a question raised in a new trial motion is new, we have been at great pains to ask whether the issue the defendant seeks to raise is really new — that is, whether it was sufficiently foreshadowed at an earlier stage in the proceedings that it would not have required clairvoyance to anticipate a later definitive ruling. See, e.g., Commonwealth v. Souza, 44 Mass. App. Ct. 238, 241 (1998). Only if it is new in this rather demanding sense will we conclude that it has not been waived. But why would we go through this often painstaking dissection of the course of prior law if the rule of (non) waiver the court promulgates today really were the law?
The court puts neon lights around how harmful and disruptive the standard it promulgates today really is by referring to its potential application to cases, unlike this one, in which the nonpreserved error related not to a jury instruction but to evidence that might, on proper objection, be inadmissible. Those cases are much more frequent, and the mischief the court does today far more virulent in them. The court states that if evidence was introduced which, had a proper objection been made, should *27not have been introduced, the miscarriage of justice standard must be applied as if that evidence were not in the case. Endorsing a recent decision of the Appeals Court, Commonwealth v. Eason, 43 Mass. App. Ct. 114 (1997), S.C., 427 Mass. 595 (1998), the court appears to suggest that, for instance, where a person convicted almost exclusively on the basis of evidence seized pursuant to a technically defective warrant fails to raise the defect before or during trial, there is a miscarriage of justice and the defendant may have his conviction overturned at any time.
On the correct view that I have stated, there has been a miscarriage of justice after a trial in which the defendant has had a chance to make his objections, but did not, only if there is a substantial risk that an innocent person has been convicted. That is what I thought we meant in Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997), when we said that “there is a substantial risk of a miscarriage of justice if the evidence and the case as a whole . . . [leaves] us with a serious doubt that the defendants] guilt had been fairly adjudicated.”2 That is why we said that, “when the elements of a crime are incorrectly stated, there is a substantial risk that a person has been convicted for a course of conduct that is not criminal at all.” Id. at 647 n.21. (As I have said, in this case and in this instance, there is no such risk.)
This conception of what constitutes a miscarriage of justice — the conviction of an innocent person — is just what the ordinary meaning of that ringing term portends. It is not a miscarriage of justice that a person reliably judged to be guilty failed to avail himself of a technicality and so allowed admission of the proof that clinches the case against him. See Eason, supra at 134 (Armstrong, J., dissenting). Few laymen would call that a miscarriage of justice. Indeed, if the term justice includes justice to the interests of society and justice to the victims of crime, the release (for in many cases that is what we would decree) of the convicted person on such a basis would itself be a grave miscarriage of justice.
And if common sense is not enough, then I note that the *28Supreme Court of the United States, where the stakes often are literally life or death, also defines “miscarriage of justice” in the commonsense way that I urge here: “[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence.” Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Accordingly, the Court has held “that the ‘narrow exception’ for miscarriage of justice was of no avail to the petitioner because the constitutional violation if it occurred, ‘resulted in the admission at trial of truthful inculpatory evidence which did not affect the reliability of the guilt determination.’ ” Id. at 340, quoting McCleskey v. Zant, 499 U.S. 467, 502 (1991). Accord Calderon v. Thompson, 523 U.S. 538, 557-558 (1998) (reaffirming the “actual innocence” understanding of miscarriage of justice); Schlup v. Delo, 513 U.S. 298, 316 (1995) (“[wjithout any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice . . .”).
The confrontation clause violation in Amirault raised difficult questions as to the application of the standard I believe is the correct one, because the error went to the adjudication of guilt or innocence, and so does the error the court identifies today, although in both Amirault and this case, no doubt as to guilt or innocence rises to the level where we should say the standard has been met. But the broad standard the court announces today comprehends many situations in which no such question of guilt or innocence is even presented.
In Eason, supra, on which the court relies, the Appeals Court considered the justice of the conviction not in terms of the risk that an innocent person had been convicted — there was little or no risk of that — but whether, without the evidence of the intercepted conversations, the outcome would have been the same. The dissenting Justices understood that the Appeals Court was repudiating our decision in Amirault, see Eason, supra at 130 (Jacobs, J., dissenting); id. at 131-135 (Armstrong, J., dissenting). Today we side with the Appeals Court against ourselves. I will grant that, up until Amirault, the law in this regard, far from being settled, had been a nest of confusion. That is why we were at such pains to clarify it in that decision. The court today reinstates that confusion and moves in a wholly incorrect direction. The court states that it would not be appropriate to consider erroneously admitted testimony in deciding whether the error created a substantial risk of a miscarriage *29of justice. In Amirault, we set out and adopted language from Commonwealth v. Miranda, 22 Mass. App. Ct. 10 (1986), that contradicts today’s proposal. Miranda states that a claim of substantial risk of a miscarriage of justice “would generally not be available to a defendant prejudiced by the unobjected-to admission of highly incriminating evidence obtained in violation of Fourth Amendment protections.” Id. at 21 n.22.
The distinction between the commonsense view of miscarriage of justice and the one the court promulgates today is of particular importance in cases involving art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution. Rarely, if ever, does a Fourth Amendment violation create the risk that an innocent person has been convicted. It is commonplace that the exclusion of evidence in these cases was instituted in Mapp v. Ohio, 367 U.S. 643 (1961), to deter police violations of privacy rights and for no other purpose.3 That is a purpose quite avowedly extrinsic to the reliable determination of guilt or innocence, and, therefore, a defendant’s failure to press it at trial does not in any way subtract from the reliability of a guilty verdict. On the contrary, in many instances it will confirm it. That is why the Supreme Court in Stone v. Powell, 428 U.S. 465 (1976), reached the more drastic conclusion that Federal postconviction relief is never to be available for Fourth Amendment violations, even in cases where the issue had been fully preserved but simply ruled on erroneously in the State courts. See Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. Penn. L. Rev. 378 (1964).
Finally, I should say a word about ineffective assistance of counsel claims, which are the usual second string to the bow of a defendant seeking to resurrect an unpreserved claim. That standard has two prongs: First, “whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, [second] if *30that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Both conditions must be met. If we focus only on the second prong and ignore the first, then there is a substantial risk that we shall end up once again erasing entirely the bulwark against the resurrection of unpreserved errors that was erected in Amirault and that the court seeks to dismantle by its unfortunate ruling about the meaning of a miscarriage of justice. It is only if we take seriously as well the first prong of the standard that this disorderly result can be avoided. “Ordinary fallible lawyers” make mistakes (that is what makes them fallible), and those mistakes will include failures to preserve claims that affect the outcome of a trial. But that must not be enough to justify a new trial. If it is, there is simply nothing left to the doctrines of waiver and finality, for every waived claim would automatically raise an ineffective assistance of counsel claim.4
Justice Fried participated in the deliberation on this case and authored a concurring opinion, but resigned before the opinions were issued.
The classic statements are Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970), and Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963).
2 And lest there be a cavil about the expression “fairly adjudicated,” we made it quite clear that the unobjected-to constitutional error in those cases, a violation of our State Constitution’s confrontation clause, dropped out of the calculus if it had not been properly objected to at trial. Commonwealth v. Amirault, 424 Mass. 618, 651 (1997).
The proposition that the exclusionary rule has some other purpose under art. 14 of the Massachusetts Declaration of Rights is quite implausible, as the courts of the Commonwealth did not employ the exclusionary rule until compelled to do so by Mapp v. Ohio, 367 Mass. 643 (1961). See Commonwealth v. Spofford, 343 Mass. 703, 706 (1962); Commonwealth v. Wilkins, 243 Mass. 356, 358-362 (1923); Commonwealth v. Dana, 2 Met. 329, 337 (1841). See also Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30 Suffolk U. L. Rev. 53, 71 (1996).
This court has, from time to time, encouraged this extreme conception of ineffective assistance of counsel by considering whether an omission by counsel was the .result not of a mistake or oversight but of' a tactical calculation, as if only such a deliberate bypass could avoid turning what in hindsight appears to have been a mistake into an ineffective assistance of counsel claim. It is important to note that there is no. such stringent doctrine.