In criminal or civil trials, do the objections raised by counsel serve additional purposes other than for the matter at hand? Do they influence appeal, are there specific rules around how appeals can be filed if objections were or were not raised? Basically, what are the nuances to objections that aren’t obvious?
I just listened to a great podcast called “more perfect” that I read about here on this board and it inspired this question.
As a general rule, you can’t bring an appeal unless you’ve raised the objection below. So from a procedural standpoint, you have to object (and make sure the objection is part of the record) to preserve an issue for appeal.
Sent from my iPhone using Tapatalk
They also influence a jury, sometimes making it look like the other side is trying to do something against the rules, but more often making it look like the objector is trying to hide things from the jury.
Another role that objections play is as a way for attorneys to (improperly) coach witness testimony.
Question: Why do you think your boss did that?
Attorney: Objection! Calls for speculation.
Judge: Overruled. You can answer.
Witness: I couldn’t really say without speculating.
They can also be use to interrupt–or highlight–certain testimony.
It is important for future appeals to make sure that you/your counsel objected to something, made a relevant argument, and then recorded the judge’s ruling. If you get to your appeal and then try to argue that the court made an error, the first thing the appellate court will ask is, “Prove it.” If you have no record of the objection and the ruling, they will probably say something like, "Great argument; not preserved.” Essentially: We have no record that the judge made a certain ruling, therefore you cannot complain that he committed an error.
Appellate judges also do not look fondly on people who have grounds for an objection but do not object at the time. An objection too early or too late can be the same as no objection at all. If you wait until your appeal and then point out that there was a judicial error, the appellate court is likely to say, “Why didn’t you mention this when you had the chance?”
It is also a bad move to invite an error by objecting to something and then trying to un-object later. Imagine a case in which the counsel said, “I object to the inclusion of this photo because it is prejudicial to my client.” Then later at appeal they say, “We have cause for appeal because this photo proves my client’s point.” Well, that’s nice, but you were the one who objected to the photo in the first place. Contradicting yourself is not a good way to get your appeal considered.
I expect there are appeal options available that exist sans objections, no?
And as for influencing, coaching, etc. yes I agree. I’m thinking of more procedural or quantitative rules surrounding objections and appeals.
Yes, some appeals are not related to whether you objected or not. Denial of a motion to suppress evidence, for example. But, for almost everything, you do have to have created a record where you at some point asked the trial judge to do what you wanted. An exception to that rule would be an appeal based on ineffective assistance of counsel, where the failure to do required things at trial formed the basis of the appeal.
There are many bases for appeals in both criminal and civil cases that can be made without having made some kind of objection in the trial court–though some of those appeals have to be preserved in another way, such as by moving for judgment notwithstanding the verdict. The most common form of appeal in civil cases without any obligation of preservation is appealing a judgment as a matter of law, as on summary judgment or a preliminary motion.
But there are definitely some types of challenges to a proceeding–mostly limited to evidentiary and procedural issues–that must be raised by objection or otherwise in order to be preserved for appeal.
There are all kinds of intricacies about what exactly needs to have been said in the objection to preserve the issue. Often parties are faced with having objected, but objected on a wrong or slightly dissimilar basis from what they want to appeal, and courts have to sort out whether the right issue was adequately preserved.
This is why a trial team should ideally be composed of trial litigators and appellate specialists working together so that all bases are covered in case the matter is appealed. Some US Attorneys offices tried to use these types of teams for especially important cases, but these are limited by manpower and budget issues.
Obligatory:
Chicolini: I object.
Prosecutor: You object? On what grounds?
Chicolini: I couldn’t think of anything else to say.
Rufus T. Firefly: Objection sustained.
Prosecutor: Your Excellency, you sustain the objection?
Rufus T. Firefly: Sure, I couldn’t think of anything else to say either. Why don’t you object?
A more efficient way is for trial attorneys to do a few appeals. You quickly learn the importance of protecting your record when you get shot down a few times by the appellate courts. You don’t have to be an “appellate specialist” to learn to do a trial with one eye on the appellate record.
But, you are right, in some cases one side or both will have appellate lawyers present at trial. (Often when they don’t have much hope on winning with the jury but really think the case should have been thrown out by the judge).
When I served on a jury, one of the things that struck me is that, unlike fictional depictions of trials in movies/TV, when either side raised an objection, they didn’t give a reason. There was no “objection, your honor! That’s hearsay.” It was just “objection.” The judge would either sustain or overrule it. If an objection was raised several times in quick succession, both the prosecution and defense attorneys would approach the bench and discuss the matter with the judge in hushed tones, out of earshot of the jury. The judge explicitly told us this was done because hearing the reasons for objections, and the reasons for their being sustained or overruled, was thought to be able to influence the jury.
This is common, though not universal practice with juries.
Of course, many hearings and trials do not involve juries, and so what you see on TV does actually happen.
Do they ever actually do that thing where they ask an obviously objectionable question, and then immediately withdraw it when the opposing counsel objects?
“Aren’t you just saying that because you’re a lying scumbag?”
“Objection!”
“Withdrawn. No further questions.”
Regards,
Shodan
Yes, that happens.
Not exactly as you phrased it, of course.
But sometimes you get on a roll and no one is objecting, so you push it a little more to see if you can get away with it. When the objection comes, you back down.
Alan Dershowitz served this role during O.J. Simpson’s murder trial. He was part of Simpson’s legal team but he really didn’t participate in the defense. He was there to make sure the proper groundwork was laid during the trial for future appeals if Simpson had been found guilty.
I was sued in a civil matter, with both parties going in pro se.
I objected when the other dude tried entering hearsay testimony and the magistrate sustained my objection. The other dude just kept trying to rephrase his testimony and I repeatedly objected, the magistrate repeatedly sustained.
Eventually the plaintiff lost his shit and screamed, “Well, fuck this, how the fuck am I supposed to tell what happened?”
I won.
This is exactly why I both love and loathe handling pro se cases.
Can you elaborate? These are the types of nuances that I find really interesting, but don’t know what to look for, or even what they would be called.
Sure. Here’s an example:
Example A:
A witness, David Wallace, testifies that George Saunders told him that the Defendant was high on crack. The Defendant’s attorney objects to the testimony without stating the grounds for the objection. The Court, believing the objection to be about Saunder’s expertise in judging who is and who is not high on crack, overrules the objection because George Saunders has enough specialized training to know. However, the testimony was hearsay and should have been stricken.
Can the appellate court review the hearsay issue? The answer is generally “no.” You have to object on the correct ground, and you have to state the ground. Same result if the attorney objected and identified only the expert opinion issue without identifying the hearsay issue.
Here’s a harder one–
Example B:
A witness, David Wallace, testifies that George Saunders told him that the Defendant’s car was speeding. The Defendant’s attorney objects. Hearsay! The attorney who wants to admit the testimony tells the judge that it isn’t hearsay, because George Saunders was making a spontaneous declaration in response to seeing the car zoom past him. The judge sustains the objection as outside the scope of that exception to hearsay. But, as it turns out, as earlier testimony had established, George Saunders was an employee of the defendant company, and the hearsay testimony is admissible as a vicarious party admission.
May the appellate court reviewing the admission of the testimony find that the judge made the wrong decision about hearsay? I don’t know. The outcome depends on the appellate court’s precedent concerning these things (which is very often non-existent), and it is often difficult to predict just whether the court of appeals will consider the objection to be adequately preserved.