Cite as: 534 U. S. 362 (2002)
Kennedy, J., dissenting
argue in an appropriate pretrial motion that the other Ohio statute supplied the recklessness element, so no ruling precluded him from admitting evidence on mens rea or requesting a recklessness instruction.
Osborne thus stands for the proposition that once a trial court rejects an overbreadth challenge, the defendant cannot be expected to predict an unforeseeable limiting construction later adopted by the state appellate court or to lodge a foreclosed objection to the jury instructions. That holding, of course, has no relevance to the case at hand. Rule 24.10 does not require defendants to foresee the unforeseeable, and no previous ruling precluded the trial court from granting Lee's continuance motion. And though the Osborne Court's analysis was tailored to First Amendment overbreadth concerns, it did not adopt the majority's fact-specific approach. Osborne's rationale would apply to all overbreadth cases without regard to whether their facts were unique or their circumstances were extraordinary. The majority's suggestion to the contrary exaggerates the importance of certain language employed by the Osborne Court. We did take note of the "sequence of events," id., at 124, but only because in all overbreadth cases, Ohio procedure mandated a sequence whereby defendants were required to predict unforeseeable limiting constructions before they were adopted or to lodge objections foreclosed by previous rulings. We also mentioned the trial's brevity, id., at 123-124, but that fleeting reference was not only unnecessary but also in tension with the Osborne Court's analysis. The adequacy doctrine would have dictated the same result, brief trial or no.
The Osborne decision did not lay the groundwork for today's revival of Henry v. Mississippi. Yet even if it made sense to consider the adequacy of state rules on a case-by-case basis, the Court would be wrong to conclude that enforcement of Rule 24.10 would serve no purpose in this case. Erroneous disregard of state procedural rules will be common under the regime endorsed by the Court today, for its
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