Trial Evidence: Making and Meeting Objections

8/3/2019 Trial Evidence: Making and Meeting Objections

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TRIAL EVIDENCE:

MAKING AND MEETING OBJECTIONS

By:EDWARD A. MALLETTMandell & Wright, L.L.P.

712 Main, Suite 1600Houston, TX 77002-3297713-228-1521713-228-0321 [email protected]

TCDLAFEDERAL LAW SEMINARSeptember23, 1999Dallas, Texas


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EDWARD A. MALLET-FEducation:A.B., Government,Dartmouth College (1967)J.D., The University of Texas (1970)Job:Partner, Mandell & Wright, L.L.P., Houston, TexasBoard Certified in Criminal Law, TexasBoard of Legal Specialization,since 1975ProfessionalActivities:President-Elect,National Association of Criminal DefenseLawyers, 1999-2000Life Member, National Association of Criminal DefenseLawyersPresident,Texas Criminal DefenseLawyers Association, 1988-89President,Harris County Criminal Lawyers Association, 1982-83Author and Grader, State Bar of Texas, SpecializationExamination n Criminal Law, 1986-89Fellow American Board of Criminal Lawyers, 1988-presentDirector, Advanced Criminal Law Course, StateBar of Texas, 1985Treasurer,Texas Young Lawyers Association, 1981-82Life Fellow, Texas Bar FoundationLife Fellow, Texas Criminal DefenseLawyers Educational nstituteFellow, Houston Bar FoundationTeachingPositions:Faculty, National Criminal DefenseCollege,Mercer Law School, Macon, Georgia, 1990-presentAdjunct Professor, University of Houston School of Law(19834996)Author/Speaker or the StateBar of Texas,ProfessionalDevelopmentProgram,AdvancedCriminalLaw Course, 1976-99

Wrote outlines and lectured on these opics: Grand Jury Representation, ndictments andCharging nstruments,Multiple DefendantCases, ury Argument, mpeachment, xtraneousOffensesand Privileges.

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TABLE OF CONTENTS

I. THINK ABOUT THE JURY .......................................................................lII. OBJECT FOR A REASON ...........................................................................III. KNOW HOW TO OBJECT AND ANSWER ...............................................IV. USE THE FEDERAL RULES OF EVIDENCE ............................................V. PROTECT THE RECORD. ........................................................................2VI. CONCLUSION ...........................................................................................3

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I. THINK ABOUT THE JURYA. THE JURORS REMEMBER AND INTERPRET EVERYTHING THEY SEEAND HEAR.B. REMEMBER: THE JURY DOESNT HEAR EVERYTHING.C. JURORS MIGHT OBEY CURATIVE INSTRUCTIONS (RULE 105) WITHTHEIR HEADS BUT NOT THEIR HEARTS, (You will disregard heDefendants criminal history in decidingwhether he did it . . (again).)

II. OBJECT FOR A REASON

A. A TRIAL IS NOT AN EVIDENCE TEST.B. BUT, ITS HARD TO WIN ON APPEAL WITHOUT OBJECTIONS

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2.

Generally, here s a d istinction betweenwaiver and forfeiture. Waiver isan intentional, tactical or strategicdecisionnot to object. Forfeiture is afailure to object.There must be an objection, or there must be Plain Error for anevidentiary ssue o be raisedon appeal, The leading cases ncluded US. v.Olano, 113 SCt. 1770 (1993) and U.S. v. Cahdy, 37 F.3d 160 (5* Cir.1994)(enbane). Omitting citations, Calverly holds at 37 F.3d 162:In U.S. v. Olano, the SupremeCourts mostrecent pronouncement n plain error, the Courtcarefully articulated the parameters of thatstandard.There first must be error. Error is defined as adeviation from a legal rule in the absence f avalid waiver. Waiver, the intentionalrelinquishment or abandonmentof a knownright, is distinguishable rom forfeiture, thefailure to make he timely assertion f a right.Whereas he former results in no error, thelatter does not extinguish the error. Thus, aforfeited egal error, or unobjected-to, nwaivederror, may be reviewable f it qualifies.


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The second requirement s that the error beplain. Plain is synonymouswith clear orobvious, and [a]t a minimum, contemplatesan error which was clear under current aw atthe time of trial.The Fifth Circuit reiterated he Calverly standards n U.S. v. Webster, 162F.3d 308, 350 (SLh ir. 1998):

To find p lain error, we must perceive (1) anerror by district court, in that it deviated rom alegal rule, (2) that was clear and, at a minimum,obvious under current law at the time of thetrial, and (3) the error must affect substantialrights.

3. A defendantwhose awyer fails to object also has he burden of provingsubstantial prejudice. Olano was cited in U.S. v.Dukes, 139 F.2d 469,476 (5 Cir. 1998):


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error affected he outcome, .e., that he would probably havebeenacquitted or the casedismissed.c. How do we do (b) without interviewing the urors?5. An unobjected to commenton the Defendantssilence,and a courtschargewhich omitted an nstruction on the FiRh Amendment,was not reversibleerror. U.S. v. GrifJh, 118 F.3d 3 18 (5* Cir. 1997).

C. YOUR PERFORMANCE IN MAKING AND MEETING OBJECTIONS CANIMPACT ON MANY IMPORTANT AUDIENCES:1. Judge.2. Jury.3. Appellate court.4. Defendant.5. Public in courtroom.6. Media and the community.7. Other lawyers.8. Potential clients.9. The 52255 lawyer.10. Malpractice carrier, StateBar, etc.

D. THERE MAY BE MULTIPLE REASONS TO OBJECT, INCLUDING:1.2.3.4.5.6.7.

We want a fair trial and we want it now.Keep ury from hearing nadmissible vidence.Protect the record.Tell jury the prosecutor s unfair to justice and hiding the truth.Interrupt flow of prosecutions ase.Create opportunities o narrate hemesand points to jury.Demonstratesuperior confidence hat the law and the facts favor thedefense.

E. WHY WE RESPOND TO PROSECUTION OBJECTIONS:1. See I-D, Reasons o Object, above.2. Inflict pain if prosecutoroverruled.

F. WHY NOT OBJECT?1. It is rude to interrupt while someone s speaking;somemembersof the urymight be offended.

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2. Youll be overruled and hurt twice as much.3. Youll appear o be afraid of the truth.4. You legitimize objectionsby, and rulings for, the prosecution.5. Antagonizes he udge.6. Paying attention o the objection channel s a mental distraction.

III. KNOW HOW TO OBJECT AND ANSWERA. STEPS N MAKING AN OBJECTION:

B.

1. The Hail (Objection ; I rise, Your Honor, to object; Excuse me,please, or interrupting, but we object . . .I).2. Grounds (This is hearsay).3. Go to sidebaror excuse urors, to avoid ury hearing harmful inadmissibleevidence.4, Authority (Rule 803 forbids letting Judy testify about what she heard Johnsay).5. Harm (Johnsstatement s harmful, because , .I).6. Get a ruling (Respectfully, Your Honor, by move along, was the courtsustaining he objection? or, May the record reflect the objection wasoverruled?).7. Obtain curative nstruction or be denied eliefa. Move to strike (Rule 103(a)(1)).b. Motion for Instruction that Jury Disregard he ObjectionableQuestion,Answer, Statementor Event.C. Move for mistrial (No instruction can cure. . .).d. Rule 403 objection,e. Move for limiting instruction (Rule 105), to be given when theevidence s first admitted and renewed n the Instructions on theLaw.STEPS N MEETING AN OBJECTION:

1.2.3.4.

Assert standing May we reply? ,I* May I be heard?; May the recordreflect?; etc.).If a generalobjection s sustained, ssume he objection s to form andrephrase he question.If objection s specific, statewhy the question s proper or a theory oflimited admissibility.If you really need he answer,but dont see he solution:i: Ask for a recess.Approach he benchand ask for help.C. Ask for a reasonor a basis rom the prosecutor and/or for the court

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d.

5. Style:i:C.d.

e.f.g *

h.

to state the basis or its ruling (at side bar).Announce well comeback to that, or well reserve his for whenwe recall the witness, and ook for help from another defenselawyer or a book.Speak o the udge, not the prosecutor.Keep cool and courteous.Use plain language.Persist dont be intimidated). (I apologize. I dont mean o offendthe court. And I dont want any other court to say Mr. Smithwanted to waive his right to a fair trial. I must state he grounds formy objection.)Dont show your injuries--acceptdefeat graciously--pretendyou aresatisfied Very well, Your Honor).Accept victory--be a good winner--repeatand recycle favorabletestimony admitted over objection.Always acceptan invitation to explain to the ury why yourevidence s relevant. (The relevance,may t please he court, is . .II. . 1Dont allow prosecutor o make relevanceor any other argumentsin jurys presence. (Excuse me, we need o take this up, at thebench or during the next recess,as he law requires . . . .I)

Iv. USE THE FEDERAL RULES OF EVIDENCEA. THE MAKING THE RECORD RULES:

1. RULE 103. Rulings of Evidence.(a) Effect of erroneous ruling. Error may not be predicatedupon a rulingwhich admits or excludesevidenceunlessa substantial ight of the party isaffected; and(1) Objection. In case he ruling is one admitting evidence,atimely objection or motion to strike appearsof record, stating the specificground of objection, f the specificground was not apparent rom thecontext; or(2) Offer of proof. In case he ruling is one excluding evidence,the substance f the evidencewas madeknown to the court by offer or wasapparent rom the context within which questionswere asked.

(b) Record of offer and ruling. The court may add any other or further-5-


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statementwhich shows he characterof the evidence, he form in which itwas offered, the objection made,and he ruling thereon. It may direct themaking of an offer in questionand answer orm.(c) Hearing of jury. In jury cases, roceedingsshall be conducted, o theextent practicable,so as o prevent nadmissible vidence rom beingugested to the iun! by any means, uch as making statementsor offers ofproof or asking questions n the hearingof the ury (emphasisadded).(d) Fundamental error. Nothing in these ules precludes aking notice ofplain errors affecting substantial ights although hey were not brought tothe attention of the court.

2. RULE 104. PreliminaryQuestions.(a) Questions of admissibility generally. Preliminary questionsconcerning he qualification of a person o be a witness, the existenceof aprivilege, or the admissibilityof evidenceshall be determinedby the court,subject o the provisions of subdivision b). In making ts determination tis not bound bv the rules of evidenceexcept hose with respect oprivileges (emphasis dded).(b) Relevancy conditioned on fact. When he relevancyof evidencedependsupon the fulfillment of a condition of fact, the court shall admit itupon, or subject o, the introduction of evidencesufficient to support afinding of the fulfillment of the condition.(c) Hearing of jury. Hearingson the admissibilityof confessions hall nall casesbe conductedout of the hearingof the ury. Hearings on otherpreliminary matters shallbe so conductedwhen the interestsof justicerequire or, when an accused s a witness, f he so requests.(d) Testimony by accused. The accuseddoes not, by testifying upon aprehminarymatter, becomesubject o cross-examination s to other issuesin the case.(e) Weight and credibility. This rule does not limit the right of a party tointroduce before the ury evidence elevant o weight or credibility.

3. RULE 105. Limited Admissibility.When evidencewhich is admissible s o one party, or for one purposebutnot admissibleas o anotherparty, or for another purpose, s admitted, hecourt, upon request,shall restrict the evidence o its proper scope andinstruct the ury accordingly.-6-


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Malletts Commenton Limiting Instructions:a.

b.

C.

d.

I have ound little in the-wayof case aw and exampleson limitinginstructions. It is clear hat the limiting instruction should be givenwhen the evidence s offered and that it may be reversible error todefer giving a limiting instruction until the ury charge. However, Ihave not found a set of model n-trial limiting instructions n anyform book or treatise.Paid ProsecutionWitnesses:f requested, he court should give aspecial nstruction on the credibility of a paid witness. UnitedStatesv. Dukes, 139 F.3d 469,476 (Sti Cir. 1998).A confessionby a non-testifyingcodefendant hat implicates heDefendantcannot be cured by a limiting instruction. Grq v.Maryhnd, 118 S,Ct. 115 (1998).The Fifth Circuits PatternJut-v nstructions -- Criminal Cases(West, 1990) gives only one exampleof a limiting instruction to begiven when evidence s admitted. The full page of Pattern JuryInstruction 1.40 s reprinted, as ollows:

Cautionary Instruction During Trial--Transcript of TapeRecorded Conversation.*Exhibit _ hasbeen dentified as a typewritten transcript[and partial translation rom Spanish nto English] of the oralconversationwhich can be heard on the tape recording received nevidenceas Exhibit -_ The transcript also purports to identi@ hespeakers ngaged n suchconversation.I have admitted he transcript or the limited and secondarypurpose of aiding you in following the content of the conversationas you listen to the tape recording, [particularly those portionsspoken n Spanish],and also o aid you in identifying the speakers.However, you are specifically nstructed hatwhether the transcript correctly or incorrectly reflects hecontent of the conversationor the identity of the speakers sentirely for you to determinebasedupon your ownevaluation of the testimonyyou have heardconcerning hepreparationof the transcript, and rom your ownexaminationof the transcript n relation to your hearing ofthe tape recording tself as he primary evidenceof its own

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contents;and, f you should determine hat the transcript isin any respect ncorrect or unreliable,you should disregardit to that extent. NoteThis instruction should be given when the tape is played andagain n the final charge.

4. Rule 106 - Remainder of or Related Writings or Recorded Statements.When a writing or recordedstatementor part thereof is introduced by aparty, an adverseparty may require he introduction at that time of anyother part or any other writing or recorded statementwhich ought infairness o be considered ontemporaneously ith it (emphasisadded).(This is called the rule of completeness.)B. THE RELEVANCY RULES:

1. RULE 40 1. RelevantEvidenceDefined.Relevant evidencemeansevidencehaving any tendency o make heexistenceof any fact that is of consequenceo the determinationof theaction more probableor lessprobable han it would be without theevidence.2. RULE 402. RelevantEvidenceGenerallyAdmissible; rrelevant EvidenceInadmissible.All relevant evidence s admissible, xcept as otherwise provided by theConstitution of the United States,by act of Congress,by these ules, or by

other rules prescribedby the SupremeCourt. pursuant o statutoryauthority. Evidencewhich is not relevant s inadmissible.3. RULE 403. RelevantEvidence&t Admissible.Although relevant, evidencemay be excluded f its probative value issubstantiallyoutweighedby the dangerof unfair prejudice, confusion of theissues,or misleading he ury, or by considerationsof undue delay, waste oftime, or needless resentationof cumulativeevidence.4. RULE 404(b). PropensityEvidenceNot Admissible.(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs,or acts s not admissible o prove the characterof a person n order to showthat he acted n conformity therewith. In may, however, be admissible orother purposes,such as proof of motive, opportunity, intent, preparation,plan, knowledge, dentity, or absence f mistakeor accident, provided,upon timely requestby the accused, easonable otice is given in advanceof trial of intent to introduce n the statescase n chief such evidenceother


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than that the arising n the same ransaction.

C. PRIVILEGES:

D. ARTICLE 8: HEARSAY:

5. OTHER GROUPS OF RULES: READ THESE RULES:1.2.3.4.5.6.7.

Rule 404: CharacterEvidenceRule 405: CharacterEvidenceRule 608: Characterand Conduct of WitnessRule 406: Habit, Routine, PracticeRule 410: Inadmissibilityof Plea Discussionsand RelatedStatementsRule 602: Lack of PersonalKnowledgeRule 607: Who May Impeach

The FederalRules simply cite I. . . the principles of the common aw as heymay be interpreted . . . in the light of reason and experience. Federalevidenceaw is evolutionary. n 1980 he SupremeCourt profoundly changedthe law of spousalprivileges, Trammelv. United States, 100 S.Ct. 906, sothat the testimonial privilege now belongs only to the testifying spouse. In1996 he SupremeCourt createda privilege or communicationswith a socialworker and psychotherapist, afee v. Redmond, 116 S.Ct. 1923.Rule 803(lS) Learned treatises. To the extent called o the attentionof an expert witness upon cross-examination r relied upon by the expertwitness in direct examination,statements ontained n published treatises,periodicals,or pamphlets n a subjectof history, medicine, or other scienceor art, established s a reliableauthority by the testimony or admissionof thewitness or by other expert testimony or by judicial notice. If admitted, thestatementsmay be read nto evidencebut may not be received as exhibits.

1.2.

Practical Rule in Practice:Hearsay s admissible f it helps he prosecution,not admissible f it helps he defense.The HearsayRule according o Mallett:a. Definition: Hearsay s an out-of-court statement.b. Rules:(1) Hearsay s not admissible.(2) There are exceptions o the Rule.(3) Different udges havedifferent notions of what theexceptionsare.(4) If the prosecutorneeds t, it is probably coming in, and anyerror is probably harmless.

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3. The original source of hearsay - the declarant - may be impeached.a. Rule 806 includes his language: I. . . the credibility of thedeclarantmay be attacked,and f attackedmay be supported, byany evidencewhich would be admissible or those purposes fdeclaranthad estified as a witness.b. The defensemay use Rule 404(b), to show the declarants motive,intent, bias, etc. by extraneousmisconduct.c, The FederalRules reat a conviction while on appealas final forimpeachment urposes Rule 609(e)). Tex. R. Cr. Ev. 609(e) isthe opposite.

E. HOW TO QUESTION: SeeRULE 611. MODE OF INTEIRROGATION:WHEN DIRECT QUESTIONS ARE REQUIRED AND LEADINGQUESTIONS PERMITTED.(a) Control by court. The court shall exercise easonable ontrolover the mode and order of interrogatingwitnessesand presentingevidenceso as o (1) make he interrogation and presentationeffective forascertaining he truth, (2) avoid needless onsumptionof time, and (3)protect witnesses rom harassment r undue embarrassment.(b) Scope of cross-examination. Cross-examination hould belimited to the subjectmatter of the direct examinationand matters affectingthe credibility of the witness. The court may. n the exerciseof d iscretion,permit inauirv into additionalmattersas f on direct examination.

(Emphasisadded.)Comment:(9 Respond o the Outside the Scope objection by referringto the 61 (a) and (c) discretion o permit affirmative useof the witness calledby the prosecutor.(ii) Say youll connect t up later as permitted by Rule 104(b).(c) Leading questions. Leading questionsshould not be used onthe direct examinationof a witness except as may be necessaryo developthe witness estimony. Ordinarily leading questionsshould be permitted oncross-examination.Whena partv calls a hostile witness. an adversepar&,or a witness dentified with an adverseparty, interrogation mav be byleading questions. Emphasisadded.)

F. TRADITIONAL AND COMMON LAW OBJECTIONS (RULES 402 AND403):

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1.2.3.4.5.6.7.8.9.10.11.12.13.

Violates Motion in Limine.Violates prior ruling of the court.Leads the prosecutionswitness regardingmaterial or contested acts.Calls for narrative questionor constitutesa narrative response requestsorgives more than one new, material, elevant,controverted fact).Misstates he record or prior testimony.Repetitive (asked and answered). Reply: Opposing counsel has askedthis question but I have not.)Assumes acts not in evidence and not conceded).No proper foundation (no proper predicate).Waste of time.Bolstering (Rehabilitationbefore attack).Calls for a legal opinion (or expert opinion from unqualified witness).Invites speculation,not personalknowledge.Impeachmenton a collateral matter (Mark Fuhrman n the O.J. Simpsontrial).

14. Non-responsiveanswer.15. No personalknowledge.16. Truthfulness of anothers estimony.

G. OBJECTIONS TO THE FORM OF QUESTIONS:1.2.

3.4.5.6.7.8.

Ambiguous (likely confusing o witnessor jury).Argumentative:a. Asks witness o testify to his own credibility.b. Merely an effort by counsel o summarize, ommentor quarrel withan answer.Compound questions containsmore han one question).Confusing.Harassingor embarrassinghe witness.Unintelligible.Unfair.Impolite, rude, offensive.

H. OBJECTIONS TO OBSERVABLE EVENTS DURING TRIAL:1. Verbalize the conduct by oral description,state grounds, authority, showharm, get a ruling, etc.2. Example:a. May the record reflect the prosecutorhas he words OrganizedCrime written on a box on the table in front of the ury.

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b.C.

d.

That box injects unsworn testimony.The jury may conclude hat Mr. Smith should be convictedbecause heyll think hes n the Mafia. (Objection sustained -remove he box).Continue o Object: The ury will never gnore that box--nomatter what instruction the court gives--we move for a mistrial.

V. PROTECT THE RECORD - FOLLOW THE CONTEMPORANEOUSOBJECTION RULE.A. Exclude the ury from hearing hat inadmissible videnceeven exists! (Rule 103(c);Motions to Suppressand Motions in Limine),B. Objections must be timely and specific (Rule 103 (a)(l) and cite anticipatedharm.)C. A proponent may offer for a limited purposeand he onnonent s responsible orrequestinga limiting instruction when the evidence s admitted. The opponent may object

to the sufficiency/adequacy f the courts imiting instruction.D. The defendantmust be denied requested elief.E. The record must show what was excludedand the harm from exclusion,or the harm fromevidencewrongly admitted.F. If evidence s admitted or a limited purpose,and used or argued or another purpose, heappellatecourt will assume orfeiture or waiver of the limitation unless he objection isrenewed.G. The appellatecourt will usually only considercontentionspresentedand overruled by thetrial court.H. What is admitted as relevant under Rule 402 may be properly objectionableunder Rule403. (See he Old Chief case, 117 S.Ct. 644 (1997))(Factsof prior convictionsinadmissible n felon in possession f a firearm case f Defendantwill stipulated o beingconvicted.).I. Force the prosecutor o state his Rule 402 relevance,his Rule 105 imited purposesandthen his Rule 403 ustification.J. If the objection is sustained,move for curative nstruction; f given, move for a mistrial.K. Have limiting instructions generally enewed n the ury chargeand move n limine torestrict improper use n jury argument.

VI. CONCLUSION

1. The making and meetingof objections s part of the show.-12-


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2.3.

Ignore the Rules of Evidence and the prosecutorand court will roll all over you, becausenothing is being preserved or appellate eview.Enforce the rule and the steamrollermay slow down.

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Trial Evidence: Making and Meeting Objections

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