In an unpreserved federal constitutional claim the burden of demonstrating prejudice rests with the defendant on appeal.
State of Utah v. Bond, 2015 UT 89
Martin Bond was convicted by a jury of various heinous crimes "including aggravated kidnapping and aggravated murder." He appealed these convictions on various grounds. First, on the basis of prosecutorial misconduct, because the prosecutor called a codefendant Mr. Rettig to testify after Mr. Rettig had indicated that he was invoke his Fifth Amendment privilege. He also posited that the prosecutor violated his Confrontation Clause rights by using leading questions. He also contends that his lawyers were ineffective for failing to merge the conviction for aggravated kidnapping with the conviction for aggravated murder.
The convictions were confirmed because Mr. Bond failed to establish that the trial court abused its discretion, or that the prosecutor committed misconduct. He also did not demonstrate prejudice or that his counsel performed deficiently by making a "futile motion."
Regarding the Confrontation Clause argument, the court cleared up previous confusion in case law and "expressly h[e]ld that the burden of demonstrating prejudice for an unpreserved federal constitutional claim rests with the defendant on appeal." Mr. Bond did not meet this burden because he failed to demonstrate prejudice from the prosecutor's leading questions.