Chapter 5 MAKING AND MEETING OBJECTIONSThe judge sustains an objection if the judge thinks the...

Chapter 5

MAKING AND MEETING OBJECTIONS

§ 5.01 INTRODUCTION

This chapter is not a comprehensive review of the rules of evidence. Weassume that you have already taken a course in evidence and remember thebasic doctrines of relevancy, hearsay, privilege, competency, and opiniontestimony. The rules of impeachment will be covered in the Cross-Examination chapter.

This chapter concentrates instead on the procedure for invoking rules ofevidence, as well other rules of trial conduct — the objection. We will focuson how to make and respond to objections during the examination of witnesses,including:

● Proper objection procedure

● The tactics of objections

● How to respond to objections

In addition, we will introduce you to some secondary procedures connectedto objections you may not have covered in your Evidence class, such as:

● Motions to strike

● Offers of proof

● Admonitions to disregard inadmissible evidence

Although we will focus on objecting to improper evidence while examining awitness, the same principles apply to objections to improper conduct duringopening statement or closing argument.

Throughout this chapter, we will focus on evidence as it is used in the courseof a trial, not as it is argued on appeal. In the hectic atmosphere of thecourtroom, precise in-depth legal analysis yields to advocacy, brevity, succinct-ness, and tactics. Your knowledge of evidence must be tempered with anunderstanding of discretion — both yours and the judge’s. You have discretionwhether to object and how to object. Your decisions concerning when to object,when to forgo objections, and what to say when you object, all will flow fromyour theory of the case.

The most important thing to remember is the broad scope of the judge’sdiscretion in ruling on objections. The judge has several choices:

● Sustain. The judge sustains an objection if the judge thinks theobjection is correct. If the judge sustains an objection, the evidenceis not admissible.

● Overrule. The judge overrules an objection if the judge thinks theobjection is not correct. The evidence is admissible.

● Overrule subject to connecting up. If the judge thinks that anitem of evidence will probably be admissible after more evidence

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is introduced, the judge may overrule the objection and admit theevidence now subject to the introduction of later evidence that willfill the gap1 — a process most lawyers call “connecting up.” If theproponent fails to connect it up, the judge may later reverse theruling and exclude the evidence.

● Reserve ruling. If the judge thinks that an item of evidence willprobably be admissible after more evidence is introduced, the judgemay hold his or her ruling in abeyance to wait and see if theproponent can supply the missing foundation. If the item is anexhibit, the judge can set it aside, neither admitting nor excludingit, until the proponent has the opportunity to lay additionalfoundation.

You must learn to accept the fact that, except in extraordinary circum-stances, the trial judge’s ruling is final, whether it is right or wrong. Fewevidentiary errors warrant reversal on appeal.

NOTE

What happens if the judge rules incorrectly? You may have the erroneousidea that the court of appeals can somehow correct errors made by the trialjudge. It cannot. All the court of appeals can do is reverse the judgment andsend the whole case back for a very expensive new trial. How likely is it thatthe appellate courts will order a new trial for erroneous evidence rulings? Anempirical study by Prof. David Leonard suggests that the likelihood is small.He studied appeals concerning erroneous rulings under Federal Rules ofEvidence 608 and 611, and found that only 5 percent were reversed. DavidP. Leonard, Appellate Review of Evidentiary Rulings, 70 N.C. L. REV. 1155,1214 (1992).

§ 5.02 OBJECTIONS

If you go into any courtroom and watch a trial in progress, you probablywill be struck by a disconcerting observation — most trial lawyers seem tomake and handle objections poorly. Many lawyers make drawn out and poorlyworded objections. Others just say, “Objection,” without any explanation atall. Still others fail to make any objections. Knowing when and how to makeand respond to objections is an integral part of being a successful trial lawyer.The materials in this section are designed to introduce you to the basicprocedural, tactical, and ethical dimensions of the objection process.

[A] OBJECTION PROCEDURE

The basic legal requirements for a proper objection are:

● Your objection must be timely — it must be made as soon as thegrounds become apparent.

● Your objection must be specific — you must tell the judge exactlywhat you are objecting to, what rule of evidence or trial procedurehas been violated, and exactly how it was violated.

1 See Fed. R. Evid. 104(b).

180 MAKING AND MEETING OBJECTIONS CH. 5



The timeliness requirement means you must object as soon as the groundsfor objection become apparent. This usually means that you will have to objectto your opponent’s questions, because it usually will be clear from the questionthat the answer will violate the rules of evidence. You cannot wait until afteryou hear the testimony.2 For example, if a witness is asked “What is youropinion of the plaintiff’s character?” you must object at once. You cannot wait,hoping for a favorable answer, and object only if the answer goes against you.However, if the question is innocuous (“What happened next?”), but theanswer violates the rules of evidence (“I wasn’t there, but Harry told me thatthe car skidded”), an objection is timely if made to the answer.3 As a generalrule, you also must not object too soon, although the judge has discretion topermit a premature objection. Even if you think you know what the questionwill be, and that it is going to elicit objectionable testimony, you must waituntil your opponent has finished asking it.4

The specificity requirement means that you must direct the judge’s atten-tion to the evidence you object to, and the precise reason why the evidenceis inadmissible. You must state the exact ground for your objection, referringclearly to the rule being violated and explain how it is being violated.5

Consider the following examples:

Insufficient objections.

● “I object.”

● “I object. Why is this relevant?”

● “Objection, the evidence is very prejudicial.”

● “Objection. Counsel has not laid a proper foundation forthe business record exception to the hearsay rule.”6

Proper objections.

● “I object to the document on the ground that it violates thebest evidence rule because it has not been shown to be theoriginal.”

● “I object to the use of the photograph under Rule 403. Thispicture of the corpse has little probative value because thefact of death has been stipulated, and it will unfairly arousethe emotions of the jury.”

● “I object to the document as hearsay. Counsel has not laida proper foundation for a business record because she hasnot shown that the entrant had personal knowledge of thetransaction.”

Complying with these requirements will not necessarily preserve the issuefor appeal. You must renew the objection if your opponent offers the same

2 See, e.g., Crowne Invest. v. Reid, 740 So. 2d 400, 408 (Ala. 1999). 3 See, e.g., Roberts v. Newille, 554 N.W.2d 298, 300 (Iowa App. 1996). 4 See, Hanson v. State, 55 S.W.3d 681, 696 (Tex. App. 2001). 5 See, e.g., Gen. Motors Corp. v. Harper, 61 S.W.3d 118, 125-26 (Tex. App. 2001). 6 This objection is inadequate because there are six different foundation requirements for a

business record, and the objection does not tell the judge which one is missing.

§ 5.02 OBJECTIONS 181



evidence a second time. You also must object to all similar evidence or youwill waive the right to appeal the original erroneous ruling (it becomesharmless error).7 To partially alleviate this burden, some jurisdictions allowa continuing objection to be made that preserves the error without requiringyou to enter many useless objections to similar testimony when you know thejudge will just overrule them.8

What if a judge has made a pretrial ruling on the admissibility of evidence?You still must enter an objection if the evidence is offered during trial. If thejudge has excluded evidence, but your opponent tries to offer it anyway, youmust renew your objection. Otherwise, the jurors will hear the evidence andyou will have waived your right to appeal on the issue. If the judge’s pretrialruling erroneously allowed inadmissible evidence to be used, you must objectagain when the evidence is offered at trial to preserve the issue for appeal.9

[B] HOW TO MAKE AN OBJECTION

● Stand up10

● Tell the judge that you object

● Describe what evidence you object to

● State the exact grounds

● Cite the legal rule

● Give a one-sentence explanation

● Allow your opponent to speak without interruption

● Remain standing until the judge rules on the objection

● Accept the judge’s ruling gracefully and sit down11

Standing up when you address the judge is a formality required in all courts.It will attract the judge’s attention, which you obviously need to do in orderto object. It will also tend to disrupt the proceedings, drawing the witness’sand opposing attorney’s attention to yourself, and stopping the testimony. Thisminimizes the damage that might be caused if the witness continued talkingabout inadmissible evidence. Attracting the jurors’ attention away from thewitness further minimizes the harm if the witness continues to talk aboutinadmissible evidence. Arguing from a standing position conveys a morepositive attitude than sitting down.

Stating specific grounds is more than just complying with a rule of appellateprocedure. No trial judge can be expected to recall all the intricacies of therules of evidence in an instant. If you direct the judge’s attention to the preciserule, you increase the likelihood of a favorable ruling. At least the judge will

7 See, e.g., Hoover v. Burlington N.R.Co., 559 N.W.2d 729, 733 (Neb. 1997); State v. Wingo, 403S.E.2d 322 (S.C. App. 1991).

8 See, e.g., In re A.P., 42 S.W.3d 248, 260-61 (Tex. App. 2001). 9 E.g., Riley v. State, 427 N.E.2d 1074 (Ind. 1981). 10 See In re Weinstein, 518 So.2d 1370 (Ct. App. Fla. 1988) (attorney held in contempt for not

rising when he made objections). 11 See United States v. Lumumba, 794 F.2d 806 (2nd Cir. 1986) (attorney held in contempt

for disobeying court order to sit down and stop rearguing objections).




not overrule you just because he or she has forgotten the rule of evidence onwhich you are relying.

A good objection cites the rule being violated and supports it with a simple“speaking brief” — a concise statement of legal reasons why your objectionis sound. Your argument should rarely be more than a sentence or two.However, if you are making a novel or unusual objection, you probably shouldfollow up with an offer to explain your legal grounds more completely outsidethe hearing of the jury. Be prepared to cite rules, cases, or treatises to supportyour position.

You also should consider whether you need to add a one-sentence explana-tion of your objection in plain English so the jury understands its reasonable-ness. Although an objection is directed to the court, it is also attended to bythe jury. There is a benefit in this practice, no matter what the ruling on theobjection may be. If the objection is sustained, the jury understands why. Ifit is overruled, the jury understands it was not frivolous. For example:

Q: You know the defendant pretty well, don’t you?

ATTORNEY: I object to the question. It is leading. Rule 611 prohibitsleading on direct examination. Defense counsel is telling thewitness what to say.

COURT: Sustained

Q: How long have you known the defendant?

A: At least 10 years.

Q: Will you tell the jury what kind of man he is?

ATTORNEY: I object to testimony about what kind of person thedefendant is. It would be character evidence, which is prohibitedby Rule 404. The issue is whether he stole the car, not hisbackground.

If there is a response, allow your opponent to speak without interruption,and then wait for the judge to rule. The presentation should be professionaland courteous.

● Good. PLAINTIFF: I object to the document. It is hearsay. It isan out-of-court statement offered for its truth without theperson who wrote it being here.DEFENSE: It is a business record. The witness testified itis kept and maintained in the regular course of business.

● Bad. PLAINTIFF: I object to the document. It is hearsay. It isan out-of-court statement offered for its truth without theperson who wrote it being here.DEFENSE: It is a business record.PLAINTIFF: No it isn’t, it’s hearsay.DEFENSE: The witness testified it is kept andmaintained in the . . . .PLAINTIFF: Excuse me, the witness never said“maintained.”DEFENSE: It was maintained in the regular course ofbusiness.



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PLAINTIFF: But the witness never said that. All she saidwas that this was a standard form they filled out. Shenever said anything about how it was maintained.

Remain standing until the judge rules on the objection, and then accept theruling gracefully. If you win, it is always good practice to be a gracious winner.If you gloat, smirk at your opponent, or comment upon your success, you mightonly succeed in angering the court or the jurors. If the judge overrules anobjection to one of your questions, do not forget to elicit the answer. It is oftena good idea either to repeat the question or to ask the court reporter to readit back to refresh the witness’s and jurors’ memories about the interruptedmatter.

If you lose, be a good loser. Remain professional and do not let yourself getupset or show anger, even if the ruling is the most stupid one you have everheard. Ordinarily, nothing is to be gained by arguing with the judge after youhave already lost the point. Rather, the effect of pointless argument is toemphasize the very evidence you didn’t want the jury to hear.

Obviously, the foregoing advice is directed to those situations in which youcan see an advantage (or, at least, no harm) in presenting and arguing anobjection within the hearing of the jury. There are other cases where theground for the objection or the explanation of it is something the jury shouldnot hear. For example, an innocuous first question, such as “Did you speakto someone concerning the accident on November third,” may be leading toa settlement offer by an insurance adjuster. Neither settlement offers norinsurance are admissible. However, the defendant cannot very well say infront of the jury, “I object that the question will elicit testimony that thedefendant offered to settle and is covered by insurance.” In such situations,you will have to state that you object and ask to approach the bench to statethe grounds out of the jury’s hearing.

NOTE

What if the judge does not rule? Your ability to appeal depends on thejudge’s issuing a ruling. Some judges, to avoid any chance of being reversed,may try to talk you into withdrawing a question or objection rather thanruling. Others may imprecisely ask you to move on to something else, or mayinstruct an attorney to proceed. Neither response is a definite ruling. Whetheryou are the objecting or offering party, you have the right to an explicit rulingand a statement of the grounds therefore. State v. Staley, 292 N.C. 160, 232S.E.2d 680 (1977); Kingston Pencil Corp. v. Jordan, 115 Ga. App. 333, 154S.E.2d 650 (1967). However, the judge may properly reserve his or her rulinguntil later and will frequently do so when the proponent offers to “connectup” seemingly irrelevant evidence. Fed. R. Evid. 104(b). If the judge has re-served a ruling, the judge must make a decision eventually. You may haveto remind the judge about this. Failure to request a ruling may be a waiver.Lionheart Legend, Inc. v. Norwest Bank, 560 S.E.2d 120, 122 (Ga. App. 2002).

[C] TACTICS OF MAKING OBJECTIONS

Just because an objection can be made does not mean that it should bemade. Before you object, you should have specific reasons for doing so. You




should engage in a quick benefit-cost analysis, weighing the benefits againstthe risk that you will end up harming your own case. The decision will dependon the nature of the evidence offered, the grounds you can assert, the contextof the particular controversy, and whether there is an alternative way ofdealing with the evidence.

[1] Reasons to Object

● You are certain you will be sustained. It is embarrassing to beoverruled, and it gives the jury the impression you do not knowwhat you are doing. If you make a number of objections that aresustained, however, then it may appear to the jury that youropponent is being unfair or is incompetent.

● The evidence hurts your case. This is often stated as the mainreason to make an objection, but only if you are reasonably certainyou will be sustained. To object to harmful evidence and lose willonly highlight that testimony. If the evidence does not harm yourtheory of the case, there is usually no reason to object.

● You need to protect your witness. You must protect your wit-nesses from misleading questions asked during cross-examination.Your decision here will depend on how easily the witness can betrapped into giving a misleading answer. If the witness can takecare of himself or herself, it is more effective if you allow the witnessto do so. Questions that are argumentative or assume facts not inevidence12 can confuse some witnesses, however, and you may needto object to them.

● You wish to disrupt your opponent. Although it is unethical tomake groundless objections solely to interrupt your opponent’sexamination, there is nothing wrong with making valid objectionsfor that purpose. A series of sustained objections may so fluster youradversary that he or she will lose track of the examination andforget to introduce important evidence.

● You need to preserve a pretrial motion or previous objection.If a pretrial motion to exclude or limit evidence has been denied,you must object again when such evidence is offered during trialif you wish to preserve the issue for appeal.13 If an earlier objectionhas been overruled, you must renew it if similar evidence is offeredor the issue will not be preserved for appeal.

● You wish to make a jury argument. Using a frivolous objectionas an excuse to make an argument to the jury is unethical. However,it is permissible to phrase a valid objection in a manner designedto inform the jury of the inherent danger in a misleading question,or point out the unfairness in (thereby lessening the effect of)prejudicial evidence.

12 Types of improper and misleading questions are covered in the chapters on direct and cross-examination.

13 Cf. Verhorn v. State, 717 N.E.2d 869 (Ind. 1999) (if judge says no objection is needed at trial,you do not need to renew the objection).




[2] Reasons Not to Object

● It would emphasize harmful evidence. Your objection will focusthe jury’s attention on harmful evidence. If you are overruled, thejurors are in effect told by the judge that it is proper that theyconsider the evidence. Because your objection brought the evidenceinto the spotlight, it is almost certain that the jurors will considerit and give it more weight than if you had made no effort to excludeit.

● The evidence will eventually be admitted anyway. Objectionsthat go solely to the form of the question, such as leading, can easilybe rephrased and the evidence admitted. Some substantive objec-tions, such as hearsay or lack of personal knowledge, also may bepointless if you are certain your opponent is going to call the originaleyewitness.

● Speculation is worse than hearing the truth. If an objection issustained so jurors do not hear evidence, they will undoubtedlybecome curious about what the witness might have said. In somesituations, they may imagine the excluded evidence was far worsethan the truth. For example:

PROSECUTOR: Mr. Wildermuth, were you ever convictedfor any crimes such as child molesting and childpornography?

DEFENSE ATTORNEY: I object for lack of foundationunder Rule 609.

COURT: Sustained.

How many jurors will speculate that your client has a prior recordfor child molesting and pornography? If the witness’s answer wouldhave been “I have been convicted of only one crime in my life,shoplifting when I was a teenager,” you probably would have beenbetter off if you had not objected at all.

● Too many objections will cause an unfavorable reactionamong jurors. Many trial lawyers are concerned that the jurorswill have an unfavorable reaction to objections because they viewthem as attempts to use technicalities to keep the jury fromknowing the whole story. This is a persistent piece of courthousefolklore,14 although it probably is not true. Two studies of actualjuror reactions indicate that jurors have a high tolerance forobjections, and in fact were often disappointed with attorneys whodid not object. It is only picayune objections, or repeatedly overruledobjections, that were viewed negatively.15

14 In 1888, the first book on trial tactics stated that an attorney “who abounds in objectionsfinds no favor with [the] jury. . . .What they want is full information, and they resent any effortto keep it from them.” B. ELLIOTT & W. ELLIOTT, THE WORK OF THE ADVOCATE 245–46 (1888).Over 100 years later, lawyers are still giving the same advice. THOMAS A. MAUET, TRIAL

TECHNIQUES 465 (5th ed. 2000). 15 See Dale Broeder, The Impact of the Lawyers: An Informal Appraisal, 1 VAL. U.L. REV. 40

(1966); M. Michael Cramer, A View From the Jury Box, LITIGATION, Fall 1979, at 4.




● Evidence may open the door to otherwise inadmissible favor-able evidence. Sometimes, inadmissible evidence brought up byyour opponent will open the door to otherwise inadmissible evidencethat you wish to offer. By opening the subject matter, your adver-sary invites evidence in rebuttal and cannot successfully complainof its admission. For example, your opponent may offer evidenceof the good character of a key actor, which opens the door for youto counter with proof of bad character otherwise inadmissible.

● Alternative means of combating the objectionable evidenceexist. You may be able to counter the effects of the inadmissibleevidence by following up the issue on cross-or redirect examination.For example, if a witness testifies without personal knowledge, itmay be more effective to expose the witness’s lack of personalknowledge during cross-examination. If you can at the same timeprove a bias in favor of the adverse party, you have discredited thewitness as well. Similarly, if your opponent has been asking mis-leading half-truth questions on cross-examination, a good redirectcan both clarify the issue and expose the other attorney’s unfairtactics.

● The objection is petty. Making petty objections irritates the judgeand may cause your opponent to retaliate.

[D] ETHICS OF OBJECTIONS

Objections often are used for reasons other than excluding inadmissibleevidence. An attorney may make objections in order to disrupt the opponent’strain of thought, tip off a witness to the answer, or distract the jury fromdamaging evidence. If a valid legal ground underlies the objection, there seemsto be nothing wrong with using these secondary purposes as bases for makingtactical decisions about the timing of an objection. However, making agroundless objection solely for these purposes would seem to be unethicalbecause of the general prohibition in the Model Rule of Professional Conduct3.1 against asserting an issue “unless there is a basis for doing so,” and inRule 3.3 against making “a false statement of law to a tribunal.”

Probably the most common unethical objection is the “speaking objection”used as an excuse to present an argument to the jury. Under the customaryrules of evidence, attorneys may state the legal basis for an objection withinthe hearing of the jury, but must make any extended argument outside thejury’s hearing. This rule is routinely tested by attorneys who make speakingobjections containing short arguments or summaries of evidence aimed at thejury. In most instances, speaking objections are clear, intentional violationsof customary objection procedure, and therefore unethical. For example:

Q: What did you see next?

A: I saw a blue car drive by that looked like the defendant’s car.

DEFENSE: Objection, irrelevant and prejudicial. We’ve already estab-lished that the defendant was home with his mother, so it couldn’thave been his car the witness saw.




Not all speaking objections are clearly unethical, however. For example, anattorney might object to the opinion of a medical expert by saying:

DEFENSE: This opinion is unreliable because it is based solely on theself-serving complaints of the plaintiff, made after his lawyer toldhim he would need an expert to testify for him.

Is this an unethical argumentative objection, or merely a restatement ofFed. R. Evid. 703’s requirement that the facts or data used by an expert mustbe shown to be reasonably reliable? Judge Keeton suggests the followinganalysis:

Using a frivolous objection as a vehicle for expressing some argumentto the jury is a practice condemned both by rules of procedure andby professional standards. On the other hand, expressing seriousobjections in a manner calculated to appeal to the jury as well as thecourt is generally regarded as a proper practice, and clearly it is properto give attention to phrasing objections in such a way as to avoidcausing an affirmatively adverse reaction by jurors. [However, if theargumentative part of the objection is overemphasized,] your state-ment is subject to the same criticism as a frivolous objection used formaking an argument. The distinction is primarily one of degree, andgreat differences of opinion exist regarding such practices.16

The second common unethical objection is the “warning” to a witness, inwhich an attorney tries to signal to the witness that the other lawyer is layinga trap and to suggest a good way to answer the question. For example, imaginethe following cross-examination of a crucial eyewitness:

Q: You were 60 feet away?

A: Yes.

Q: This was 11:45 pm, correct?

A: Yes.

Q: There was no moon, correct?

A: Yes.

Q: And no streetlights?

PROSECUTOR: I object. Counsel is asking trick questions, trying toinsinuate that the witness could not have seen the defendant’s faceclearly.

COURT: Overruled.

Q: There were no streetlights, were there?

A: No, but I could see the defendant’s face clearly.

Obviously, it is unethical to make such an objection. There are no legalgrounds for it, and you are improperly telling the witness what words to usein the answer.

Objections on technical grounds are often used to harass an inexperiencedattorney. Technical objections are those that go solely to the procedure, notthe substance, of offered evidence. The two most common are:

16 ROBERT KEETON, TRIAL TACTICS AND METHODS 196 (2d ed. 1973).




● Objections to the form of questions: leading, assuming facts not inevidence, compound question, etc.

● Objections to incomplete foundations, especially for exhibits andhearsay exceptions.

Is there any ethical problem with raising a technical objection to evidenceyou believe will ultimately be admissible because your adversary has failedto lay a complete foundation? The answer appears to be “No.” An attorneymay make technical objections to disrupt the opponent’s train of thought ordistract the jury from damaging evidence, as long as a valid legal groundunderlies the objection. As long as evidence law requires questions to be incertain forms and foundations to be laid, you have the right to insist that theprocedural rules be followed, even if the outcome is that your opponent hasto abandon a legitimate item of evidence. However, making groundlessobjections in order to fluster your opponent would clearly be unethical.17

NOTE

Should you make technical objections? In the chapters that follow ondirect and cross-examination, we will explain the rules governing the formof questions and answers. You are probably already familiar with at least oneof them — the rule that you cannot ask a leading question on direct examina-tion. Objections on the technical ground that your opponent is violating oneof these rules of form are unlikely to result in excluding harmful evidence(because they often can be rephrased easily) and the most likely to create abad impression with the jury. For example:

Q: Did you see the defendant enter the room?

ATTORNEY: Objection, leading the witness.

Q: I’ll rephrase. What happened next?

A: I saw the defendant enter the room.

A: [Jury laughs]

For these reasons, many trial practitioners do not make objections to the formof questions except for the purpose of exposing the unfairness of a patternof misleading questioning or for the purpose of disconcerting an inexperiencedopponent. The risks of making technical objections to relevant and helpfulexhibits are even greater. See FRANCIS X. BUSCH, LAW AND TACTICS in JURY

TRIALS, vol. 5, § 604 (1963). However, Judge Keeton argues that if objectionsto form result in repeated rulings in your favor, the jury may begin to wonderabout the ethics and motives of the examiner. ROBERT KEETON, TRIAL TACTICS

AND METHODS 171–72 (2d ed. 1973). It is also possible that a successful seriesof technical objections will result in your opponent’s abandoning a line ofquestions or withdrawing the offer of an exhibit.

17 Model Rule of Professional Conduct 3.1 prohibits asserting an issue “unless there is a basisfor doing so,” and Rule 3.3 prohibits making “a false statement of law to a tribunal.” See alsoState v. Darnell, 542 P.2d 117 (Wash. App. 1975) (frequent objections without legal basisunethical).




§ 5.03 RESPONDING TO OBJECTIONS

[A] SHOULD YOU RESPOND AT ALL?

No rule of procedure or custom requires you to respond to an objection. Somejudges do not like responses, others do. Most will ask you for a response ifthey are unsure of the correct ruling. At the same time, you generally havethe right to be heard on an objection whether the judge asks for it or not. Thedecision whether to respond is therefore generally a question of tactics.

When an objection is made by your adversary, you have three choices:

● Withdraw your question.

● Remain silent and let the judge rule.

● Make an argument against the validity of the objection.

Many attorneys automatically argue against every objection, while othersautomatically withdraw or rephrase any question objected to. The firstapproach assumes your opponent is a complete idiot who can never be righton an evidentiary issue; the second assumes you are the idiot. You shouldadopt neither of these assumptions, but should make a conscious decisionabout how to handle each separate objection.

[1] Reasons to Withdraw or Rephrase a Question

● You agree that the objection is valid. You lose credibility withthe judge if you make silly arguments, and with the jury every timethe judge rules against you.

● The objection merely goes to the form of the question. It is oftenbest just to rephrase it, rather than get involved in a lengthyargument over whether it was a proper question.

[2] Reasons to Keep Silent and let the Judge Rule

● You are uncertain about the validity of an objection, butcannot think of a good argument.

● You have already withdrawn several questions. If you continu-ally ask questions and withdraw them if your opponent objects, itbegins to look like bad faith. Let the court rule occasionally — thejudge might even rule in your favor.

● You don’t want to interrupt the flow of your examination.Every argument takes time and distracts the jury from the witness’stestimony.

● The judge is already taking your side. If the judge questionsthe objector about the basis of the objection, or otherwise arguesfor your position in a colloquy with your adversary, it is probablybest to keep quiet.

● The judge does not appear to want to hear from you. Somejudges do not want to hear argument, and tend to rule quickly onobjections.




● The objection is to testimony from a witness rather than toyour question. You can withdraw a question, but you cannot with-draw a witness’s testimony.

[3] Reasons to Argue

● You believe the evidence is admissible.

● The evidence is important to your case. The more important theevidence, the greater the need to present an argument supportingits admissibility, even if your best argument is a weak one.

● The judge expects it. Obviously, if the judge asks you for aresponse, or looks at you expectantly, you should reply.

[B] HOW TO RESPOND

If you have a good argument against an objection and decide that you shouldrespond, how should you go about it? In general, the same considerations applyto responses that applied to making objections:

● Stand up (if you are not already standing) and face the judge. Don’tgive in to the temptation to face the opposing attorney who ismaking the objection.

● State your responses succinctly, being as specific as possible aboutthe legal grounds for admissibility. If you have extensive supportfor your position — cases, treatises, or memoranda — offer to showit to the judge.

● Give a one-sentence non-legal explanation for the benefit of the jury.

● Remain standing until the judge rules on the objection.

● Accept the judge’s ruling gracefully.

● Make an offer of proof (discussed later in this chapter) if you losethe objection.

Sometimes a judge will sustain an objection against you quickly, before youhave an opportunity to respond. It is not, as a general rule, a good idea toask a judge to overturn his or her own ruling. The momentum is against you,and it puts you in the awkward position of arguing with the judge insteadof opposing counsel. However, on rare occasions when important evidence hasbeen wrongfully excluded, you may not be willing to acquiesce. You can askthe judge politely for a brief opportunity to be heard. Such a request probablywill be granted if it is not made too often.

A similar problem is presented if the judge sustains a general objection thatdid not specify the grounds. It may leave you unclear why the judge sustainedthe objection and whether the problem is curable, e.g., by laying morefoundation. Also, your ability to appeal will be restricted unless the groundsfor the ruling are in the record. It is proper to ask the judge to state the basisfor his or her decision, but it is not a good idea to challenge the judge directly.The judge may respond by implying that you do not know your rules of evi-dence or may expound to the jury about why the evidence you offered wasinadmissible. One alternative possibility is to shift the onus back onto

§ 5.03 RESPONDING TO OBJECTIONS 191



opposing counsel by saying, “Excuse me, your Honor, but I do not believecounsel stated the grounds for her objection. Could she specify her groundsfor the record?”

§ 5.04 MOTIONS TO STRIKE

[A] PROCEDURE

If you can anticipate that inadmissible evidence is about to be disclosed tothe jury, an objection will be adequate to prevent its disclosure.


A: At least 10 years.

Q: Will you tell the jury what kind of man he is?

ATTORNEY: I object to testimony about what kind of person thedefendant is. It would be character evidence, which is prohibitedby Rule 404. The issue is whether he stole the car, not hisbackground.

COURT: Sustained.

However, if a witness interjects inadmissible evidence unexpectedly, and thejury hears it, then the objection is not enough. You must also move to strikethe improper evidence from the record:


A: For at least 10 years, ever since we met in prison. The guys’s thebest con man I ever met.

ATTORNEY: I object to the evidence concerning incarceration and thekind of person the defendant is, and move to strike it from therecord. It is character evidence, which is prohibited by Rule 404.The issue is whether he stole the car, not his background.

This is not just a question of tactics. If the jury has already heard the evidence,an objection by itself is not legally sufficient to preserve any issue concerningits propriety for appeal, and it leaves the inadmissible evidence in the recordand entitled to consideration by the jury.18

Of course, unlike an objection, a motion to strike will not prevent the juryfrom hearing the inadmissible evidence. For that reason, motions to strikeare usually accompanied by additional requests for relief, e.g., that the jurybe admonished to disregard the inadmissible evidence, and that a mistrial bedeclared if the jury has heard particularly prejudicial information. Admoni-tions to disregard prejudicial evidence are controversial — judges use thembecause they are deemed to “cure” the legal error, but social scientists havedemonstrated that they are completely ineffective.19

Motions to strike are appropriate in five common situations:

18 E.g., Blinn v. State, 487 N.E.2d 462 (Ind. 1986). 19 See J. Alexander Tanford, Thinking About Elephants: Admonitions, Empirical Research, and

Legal Policy, 60 UMKC L. REV. 645, 650–55 (1992).




● A witness gives an unresponsive answer to one of your own ques-tions (usually on cross-examination)

Q: Isn’t it true that you drank an entire six-pack of beerbetween 6:30 and 7:30 pm?

A: Yes, but that had nothing to do with the fact that I waswrongly arrested because the police have been out to getme because they think my son is in a gang.

ATTORNEY: I move to strike everything after the word“Yes” because it is not responsive to my question.

● A witness volunteers inadmissible evidence in response to a properquestion asked by your opponent. If the question itself clearly calledfor inadmissible evidence, you must have objected to the question.You cannot resort to a motion to strike unless the improper testi-mony could not have been anticipated from the question.

Q: What happened next?

A: I saw the defendant come out of the store. I recognizedhis face from a TV show called “America’s Most WantedChild Molestors.”

ATTORNEY: I object to evidence of what this witness sawon television as irrelevant and prejudicial under Rule 403.I move to strike the comment.

● A witness makes gratuitous or vindictive remarks.

Q: Do you recognize the man who attacked you?

A: Yes, he’s sitting over there. I hope you fry in hell, youbastard.

ATTORNEY: I object to the witness’s gratuitous remarkunder Rule 403 and move to strike it.

● When subsequent testimony demonstrates that previous evidencewas incompetent, or if your opponent fails to connect up testimonyconditionally admitted.

Q: What did you do with the gun, officer?

A: I picked up the gun, kept it in my car, and turned itover to forensics for fingerprint testing. I got it back a fewdays later and put it in the police evidence locker. I wentand got it this morning and brought it to court.

PROSECUTOR: We move exhibit A, a handgun, intoevidence.

DEFENSE ATTORNEY: I object. The chain of custody isincomplete because we do not know what happened to thegun when it was in control of forensics.

PROSECUTOR: We will call the forensics technician whohandled the gun as our next witness and complete thechain of custody.

§ 5.04 MOTIONS TO STRIKE 193



COURT: Objection overruled. I admit the gun subject tothat testimony.

PROSECUTOR: We call Corey Berman from the forensicslab. . . .Handing you exhibit A, did you receive this gunat the forensics lab from Officer Beringer and return thesame gun to him after testing it?

A: I don’t know. We had three Smith & Wesson .38s thatweek, and an intern mixed them up.

DEFENSE ATTORNEY: We renew our objection to ExhibitA and move to strike it from evidence because the prosecu-tor has failed to connect up the chain of custody.

● The opposing attorney makes gratuitous or improper remarksduring witness examination or argument.

Q: You were fifty feet away from the scene?

A: Yes.

Q: It was dark?

A: Yes.

Q: Were there any streetlights?

A: No. Pitch dark.

Q: And you claim to have seen the face of the man in thealley clearly enough to identify him today?

A: Yes.

Q: You have remarkable vision, Mr. van Natta. No furtherquestions

ATTORNEY: I object to counsel’s gratuitous comment asargumentative, and ask that it be stricken from the record.

[B] ARE MOTIONS TO STRIKE WORTH MAKING?

It is impossible to conduct a perfect trial. Rules of evidence and procedurewill inevitably be broken and jurors exposed to prejudicial evidence. If newtrials were granted for every error, few cases would ever be brought toconclusion. Therefore, the rule of law developed which requires the trial judgeto admonish jurors to disregard improper evidence they should not have seenor improper remarks they should not have heard, and then to continue thetrial. A judge also may admonish the jury to disregard the judge’s ownimproper conduct. Courts express the hope that these admonitions (often cal-led “curative instructions”) will in fact reduce the prejudicial impact ofimproper evidence so that the trial will remain fair. Most judges assume theseadmonitions work.20 They are wrong.

20 See United States v. Alvarez, 860 F.2d 801, 827 n.27 (7th Cir. 1988) (admonitions ensurethere is no prejudice); Mullen v. Princess Anne Vol. Fire Co., 853 F.2d 1130, 1134–35 (4th Cir.1988) (admonition prevents improper use of evidence); Montgomery v. State, 760 S.W.2d 323 (Tex.Ct. App. 1988) (presuming not only that the jurors followed the Court’s instructions, but thatthey followed them to the letter); State v. Foster, 755 S.W.2d 846 (Tenn. Ct. Crim. App. 1988)(“the law . . .directs (and properly so) that a jury is presumed to have followed the instructionsof the court”).




In 1959, Dale Broeder published the results of experiments by the Univer-sity of Chicago Jury Project demonstrating that admonitions to disregardevidence are not only ineffective, they may make matters worse. When thesubjects in his experiment were told that the defendant in a personal injurycase was insured, their average verdicts rose predictably, from $33,000 to$37,000. When they were instructed to disregard that evidence, their verdictsdid not go down at all — they actually went even higher to $46,000.21 Overthe next twenty-five years, at least eight other research teams reached similarresults.22 Instructions to disregard prejudicial evidence only emphasize it andmake the prejudicial effect worse.

This leads to two important tactical differences between objections andmotions to strike.

● Use motions to strike cautiously and infrequently.

● Base your decision on whether to move to strike testimony on itslegal importance rather than the amount of factual harm it doesto your case. If evidence is legally important but not titillating tothe jury (e.g., testimony concerning venue or agency), you may usemotions to strike freely. If evidence is legally important enough thatyou believe an erroneous ruling will be grounds for reversible erroron appeal, you need to move to strike to preserve the issue. How-ever, if evidence is factually prejudicial but has little legal impor-tance (e.g., criminal record admitted to impeach), the damage hasbeen done and there is little to be gained, so you rarely should moveto strike.

§ 5.05 OFFERS OF PROOF

Imagine in a products liability case that the judge erroneously sustains youropponent’s objection to the testimony of your engineering expert. Your onlyevidence concerning a design defect is excluded. Without it, the jury decidesagainst you and you appeal. You argue to the Court of Appeals that the expertshould have been allowed to testify concerning a design defect, and that thetrial judge’s wrongful ruling was prejudicial error. The Court of Appeals turns

21 Dale Broeder, The University of Chicago Jury Project, 38 NEB. L. REV. 744, 753–54 (1959);Harry Kalven, JR., A Report on the Jury Project of the University of Chicago Law School, 24 INS.COUNSEL J. 368, 377–78 (1958).

22 Valerie Hans and Anthony Doob, Section 12 of the Canada Evidence Act and the Deliberationsof Simulated Juries, 18 CRIM. L. Q. 235, 242–49 (1975); Cheryl Oros and Donald Elman, Impactof Judge’s Instructions Upon Jurors’ Decisions: the Cautionary Charge in Rape Trials, 10 REP.

RESEARCH IN SOC. PSYCH. 28, 32 (1979); Stanley Sue, R.E. Smith and C. Caldwell, Effects ofInadmissible Evidence on the Decisions of Simulated Jurors: A Moral Dilemma, 3 J. APPLIED SOC.

PSYCH. 345, 350–51 (1973); Sarah Tanford and Michelle Cox, The Effects of Impeachment Evidenceand Limiting Instructions on Individual and Group Decision Making, 12 LAW & HUM. BEHAV.477, 484 (1988); Sarah Tanford and Steven Penrod, Social Inference Processes in Juror Judgmentsof Multiple-Offense Trials, 47 J. PERSONALITY & SOC. PSYCH. 749 (1984); William C. Thompson,Geoffrey T. Fong and David L. Rosenhan, Inadmissible Evidence and Juror Verdicts, 40 J.PERSONALITY & SOC. PSYCH. 453, 457–58 (1981); Roselle Wissler and Michael J. Saks, On theInefficacy of Limiting Instructions, 9 LAW & HUM. BEHAV. 37, 41–44 (1985); Steven Wolf and D.A.Montgomery, Effects of Inadmissible Evidence and Level of Judicial Admonishment to Disregardon the Judgments of Mock Jurors, 7 J. APPLIED SOC. PSYCH. 205, 213–16 (1977).

§ 5.05 OFFERS OF PROOF 195



to the record you submitted with your appeal, and lo and behold, the recorddoes not reflect what the expert witness would have said. Obviously, if anobjection was sustained, the evidence never got into the record, so the Courtof Appeals cannot determine whether it was error to exclude it!

To solve this dilemma, the courts have created a procedure known as anOffer of Proof. When an objection is made to a question and sustained by thecourt, the examining attorney may place into the record (outside the hearingof the jury) the evidence he or she expected to prove. Although the primarypurpose is to perfect the record for appeal, the procedure also may help thetrial judge rule correctly. Offers of proof are most commonly used when theissue is relevancy, and are unnecessary if the question itself indicates thenature of the evidence sought. For that reason, offers of proof are normallyinapplicable to cross-examination, when the questions themselves are leading.

Offers of proof take three forms:

● The most formal offer of proof involves removing the jury from thecourtroom, and then conducting the witness examination exactlyas if the jury were present.

● An intermediate form involves the attorney submitting a writtensummary of the excluded evidence out of the hearing of the jury.

● The least formal offer of proof is the side bar conference, in whichthe attorney answers the judge’s question, “Where are you goingwith this line of questioning?”

An offer of proof is primarily factual, not legal. You must inform the judgein detail what the excluded evidence would have been and explain itssignificance and the reason for offering it.23 This is not the same thing as anargument about why the evidence should have been admitted.

Too vague: Your honor, if you would permit Mr. Kahle to testify, hewould establish the defendant’s alibi.

Too legal: Your honor, because the phone call was occuring simulta-neously with the event, Mr. Kahle’s testimony should be a present senseimpression.

Good: If Mr. Kahle were allowed to testify, he would have said that at10:30 p.m. on Monday, November 15, he phoned his friend Martin Montesat his home. Montes answered the phone. Mr. Kahle asked if he wantedto go out for a beer, and Mr. Montes said that he did not because he waswatching Monday Night Football with the defendant. This helps establishthe defendant’s alibi, since the crime occured at 10:45.

A formal offer of proof would proceed as follows:

PLAINTIFF’S ATTORNEY: Officer Romankow, what happened next?

A: I asked whether there were any witnesses. One man stepped forthand identified himself as Jeff Swenarton. He appeared excited.

Q: What did you do next?

A: I asked him to tell me what he knew about the accident.

23 See United States v. Adams, 271 F.3d 1236, 1241-42 (10th Cir. 2001).




Q: What did Mr. Swenarton tell you?

DEFENSE ATTORNEY: I object. The testimony would be hearsay inviolation of Rule 802. Mr. Swenarton can speak for himself.

PLAINTIFF’S ATTORNEY: It’s an excited utterance, your honor. Thewitness testified Swenarton appeared excited.

COURT: Sustained.

PLAINTIFF’S ATTORNEY: May I make an offer of proof, your honor?

COURT: Of course. Approach the bench.

PLAINTIFF’S ATTORNEY:? [Out of hearing of the jury] We would likethe jury excused and the witness allowed to testify to the contentof Swenarton’s statement.

COURT: Alright. Bailiff, please escort the jury to the jury room for afew minutes. [Jury leaves courtroom]. Alright, counsel, you mayproceed.

PLAINTIFF’S ATTORNEY: What did Swenarton tell you?

A: He told me that he had witnessed the accident. He said the driverof the blue Ford S.U.V. had gunned the engine and sped up whenthe light turned yellow, but the light was red by the time it gotthere, but he just kept on going.

Q: By “he” you mean Swenarton or the driver of the S.U.V.?

A: The driver. Swenarton said he, that is, Swenarton, had started tocross the street because the light had turned red for Walnut Streettraffic, when the blue Ford came roaring through, almost hittinghim. He said the driver of the Ford definitely ran the red light.

PLAINTIFF’S ATTORNEY: That’s the end of the offer of proof, yourhonor.

COURT: Bring the jury back in. [Jury returns] You may continue.

PLAINTIFF’S ATTORNEY: After talking to witnesses, what did you donext?

A: I measured the skidmarks and drew a diagram of the scene of theaccident . . .

NOTES

1. Down at the courthouse I. In actual practice, few lawyers make or handleobjections well. Few actually comply with the rule requiring specific objec-tions. Trial attorneys, whether because of laziness or because they are unsureof their grounds, often object simply by saying, “Objection,” and not statinggrounds. Objections that are made in this general fashion might be sustainedby the judge, but they also might be overruled. If you have neglected to followthe procedural requirements, you have no way to appeal incorrect rulings ifyou lose the case. Just because you see other lawyers doing it does not meanyou should model your own behavior on them. It is generally a bad idea tolearn trial practice by watching other lawyers until you know enough to recog-nize the good ones.




2. Down at the courthouse II. Recall from Chapter One the discussion ofjudicial control and discretion. Rule 611(a), Fed. R. Evid. provides:

The court shall exercise reasonable control over the mode and orderof interrogating witnesses and presenting evidence so as to (1) makethe interrogation and presentation effective for the ascertainment ofthe truth, (2) avoid needless consumption of time, and (3) protectwitnesses from harassment or undue embarrassment.

No place is the concept of judicial discretion more important than in thinkingabout rulings on objections. Many objections require the judge to make ajudgment call — whether an attorney’s opening statement becomes argumen-tative, whether evidence is so prejudicial that it will affect the trial, whethera question is so leading that it might mislead the jury, whether a lawyer’sargument about the law crossed the line and became implied criticism of it,and so forth. Add to this the fact that the judge may be uncertain about thedetails of an evidence rule, does not have time to do any legal research, andmust make a decision after hearing less than thirty seconds of argument, andyou can see that judges must be given wide latitude in their decisions. Thecourt of appeals cannot grant a new trial every time it thinks the trial judgemade the wrong decision, unless that decision fundamentally affected thefairness of the trial. Judges will occasionally rule against you when you areright. You have to understand and accept this as a necessary part of the trialprocess.

3. Invited error and opening the door. One of the more controversial rulesof trial procedure is the concept of invited error, or opening the door. Simplyput, if one side commits a trial law error, such as introducing inadmissibleevidence or making an improper argument, then doing so “opens the door”to the other side to respond in kind. The first lawyer cannot complain aboutthe behavior of the second lawyer, because it is “invited error.” In this case,two wrongs make a right. For example, if a defendant improperly argues thathis client is a poor man and cannot afford to pay a large verdict, the plaintiffmay retaliate by arguing that the defendant has a $300,000 insurance policy.The two arguments offset each other. See United States v. Young, 470 U.S.1, 11 (1985) (two wrongs do not make a right, but they reduce the likelihoodthat either affected the fairness of the trial).

4. Objecting to the judge’s conduct. You are required to object to improperquestions or conduct by a judge just as you would if it were the opposingattorney. See D.R. Lauck Oil Co. v. Breitenbach, 893 P.2d 286, 289 (Kan. 1995).Recognizing that it may be awkward to object to the actions of the judge infront of the jury, many jurisdictions permit you to wait and object when thejury is not present. E.g., Fed. R. Evid. 614(c). Objecting to the judge’sprejudicial remarks or conduct, or to a question asked by the judge, is adelicate matter. It risks angering the judge (never a particularly good idea),and alienating the jurors who are likely to hold the judge in high regard.Nevertheless, such an objection may sometimes be necessary when the judgehas seriously prejudiced your chances of winning. You probably should objectto the judge’s conduct in a quiet, respectful tone, out of the hearing of the jury.Your objection should be accompanied by a request that the judge admonish




the jury to disregard any prejudicial remarks within the hearing of the jurors,and a motion for a mistrial if seriously prejudicial.





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