{"id":372,"date":"2015-11-18T11:31:04","date_gmt":"2015-11-18T11:31:04","guid":{"rendered":"http:\/\/www2.law.temple.edu\/voices\/?p=372"},"modified":"2021-12-16T14:58:51","modified_gmt":"2021-12-16T14:58:51","slug":"when-i-object-is-not-enough","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2015\/11\/18\/when-i-object-is-not-enough\/","title":{"rendered":"When “I Object” Is Not Enough"},"content":{"rendered":"

The words \u201cI object\u201d should be passe<\/em>. The availability of pre-trial motions in limine<\/em>, as guaranteed by FRE 103, should ensure that evidentiary issues are thoughtfully considered and resolved before trial begins. But time constraints or unexpected developments may require a time-of-trial challenge to the admission of evidence, so knowing the \u201cwhy\u201d and \u201chow\u201d of objecting is essential. And, as is developed below, a mere \u201cI object\u201d may serve no legal or practical end.<\/span><\/p>\n

Before turning to the \u201chow\u201d issues, attention must be paid to the \u201cwhy.\u201d In the trial arena, two rationales are espoused; \u201csuch rules allow the trial judge to correct possible errors in the most timely and efficient fashion, when the evidence is the freshest\u2026 Second, contemporaneous objection rules prevent a defendant from \u2018sandbagging,\u2019 taking a chance on a jury verdict while reserving his claim in the event of an unfavorable verdict.\u201d Spencer v. Kemp<\/em>, 781 F.2d 1458, 1472-1473 (11th Cir. Ga. 1986).<\/p>\n

Whether judges can rule accurately in the heat of the moment is debatable. There are ample data confirming that some areas of evidence law \u2014 the Daubert<\/em> rule being one example\u00a0\u2014 are not well understood by judges. [See, e.g. Moreno, Einstein on the Bench?: Exposing What Judges Do Not Know About Science and Using Child Abuse Cases to Improve How Courts Evaluate Scientific Evidence<\/em>, 64 Ohio St. L.J. 531 (2003).] Regardless of how well they do know the law, objections in the midst of an adversary proceeding may be difficult to rule on. \u00a0A recent Judicial Edge<\/em> article promoting judicial education on evidence <\/a>urged judges to develop an \u201cevidence ear\u201d and concluded that \u201cIt is easier for an attorney to object than for a judge to decide.\u201d So a time of trial objection may be an ineffectual tool for preventing error. (And, although without supporting hard data from jury studies, textbooks on advocacy hypothesize reasonably that upon hearing the word \u201cobjection\u201d jurors will assume the evidence at issue has special importance.)<\/p>\n

But beyond error correction at trial lies the real reason for focusing on the \u201chow\u201d of making objections\u00a0\u2014 ensuring an issue is properly preserved for appellate review. This often becomes a waiver trap\u00a0\u2014 the unwary lawyer, by not objecting with specificity, may have surrendered the right to appellate review except under the less-than-favorable \u201cplain error\u201d doctrine.<\/p>\n

So, what must lawyers say when objecting? Consider the command of Federal Rule of Evidence 103 that the objection must \u201cstate[] the specific ground, unless it was apparent from the context\u2026\u201d Thus, when the witness says \u201cI heard John say\u2026\u201d and the lawyer shouts \u201cObjection,\u201d it seems \u201capparent\u201d that the challenge is grounded in the hearsay rules. But if the objection embraces what<\/em> was said, such as an opinion or a character aspersion, the generic objection will preclude appellate review.<\/p>\n

Cases abound where appellate review was denied:<\/p>\n