If an obvious hearsay statement is made by a witness but the opposing counsel doesn’t object to it because he was distracted, not paying attention, conferring with his client, etc, is the statement still left to stand or would a judge say something on his own?
A judge could disallow it. I don’t know if any would allow it but if they did it could be a matter for appeal. I think that becomes more difficult lacking an objection but then the fairness and competence of the judge becomes questionable.
If an attorney doesn’t make an objection, then potentially objectionable material comes in. And if you intend to appeal, you have to preserve the issue for appeal (unless it’s a “fundamental error”).
Reason being, the courts don’t want you to wait to see if you want to challenge the evidence pending the result (imagine that an attorney thinks that the hearsay shows how unreliable the story really is, so he lets it come in. But he loses the trial, so he then appeals and says “it was hearsay! It shouldn’t have been allowed” and then gets a new trial. Appellate courts want to avoid that tactic)
Now, if the hearsay was blatant and ongoing, the judge may call the attorneys to the bench for a sidebar, to make sure both sides are clear on what is happening. This would be to avoid a later claim that the attorney who is letting stuff come in is doing it because he’s incompetent, as opposed to making a strategic choice.
But judges don’t typically raise objections in their own.
Hearsay that is not objected to is admissible. It happens all the time, as there are always facts and circumstances that both sides want the jury to hear. There is usually a hard way and an easy way to get evidence in (or you can do a formal stipulation). In the heat of the moment, a lawyer will often just not object if they want the jury to hear it.
Judges can keep out evidence on their own, but they shouldn’t do it in this case, as the evidence is admissible.
There are hundreds of cases that rule this way. Here’s a sample.
Hearsay admitted without objection may properly be considered as evidence by the trier of fact. State v. Lucio, 247 S.W.3d 131 (Mo. Ct. App. S.D. 2008).
Inadmissible hearsay that goes in the record without objection may be considered by the fact-finder in determining the facts. State v. Smith, 163 S.W.3d 63 (Mo. Ct. App. S.D. 2005).
Hearsay evidence which comes into the record without objection may be considered by the jury. State v. Mayabb, 43 S.W.3d 429 (Mo. Ct. App. S.D. 2001).
Admission of hearsay evidence is not plain error where no objection is made. State v. Petty, 967 S.W.2d 127 (Mo. Ct. App. E.D. 1998).
Where no objection is made, admission of hearsay evidence is not plain error. State v. Rush, 949 S.W.2d 251 (Mo. Ct. App. S.D. 1997).
A district court is free to consider hearsay testimony if there is no objection to its admission into evidence. Montanans for Justice v. State ex rel. McGrath, 2006 MT 277, 334 Mont. 237, 146 P.3d 759 (2006).
Hearsay subject to a well-founded objection is generally evidential if no objection is made. New Jersey Division of Child Protection and Permanency v. M.M., 459 N.J. Super. 246, 209 A.3d 227 (App. Div. 2019).
Thanks. That seems pretty definitive.
I didn’t intend it to be so Missouri centric. I just randomly cut and pasted a section from a long list of cases saying the same thing. But yes, it’s a well settled legal principle
ETA: Re-reading your OP, if the lawyer just missed it, he or she can later make a motion after the fact to strike the evidence. It would be generally be within the court’s discretion to grant or deny. The motion should be made as soon as possible and there should be a good excuse. I’ve seen it done at the first break, so the jury isn’t there. You can say something like “this was improper, but I didn’t want to highlight it again in front of the jury, so I’m asking the court now to strike it from the record and instruct the jury to disregard.” Some judges would say “you should have objected at the time, you’ve waived it.” Other judges would say, “yes, that was inadmissible hearsay, I’ll strike it.” One good reason to know your judge.
You see in court cases all the time (in TV Land) “the jury will disregard that…” Is that definitive enough? Presumably anything too dmagaing may impact the case, after all a person cannot really un-hear something. This means the jury should explicitly diregard that, but do they typically? Can a lawyer claim it was so prejudicial as to result in a mistrial?
I saw a movie ( Anatomy of a Murder ) in where a defense attorney ( played by James Stewart ) used that shrewdly and tactically ( or so it seemed to me ). He flung out a statement which could be taken as a cheap shot to the prosecution. Prosecution objects, and the judge supports it and instructs the jury to disregard.
Here’s the interesting part. In seeing this, the defendant whispers a question to his attorney “How can a jury disregard what it already heard?”. To which the defense attorney somewhat slyly muses: “They can’t lieutenant…they can’t”.
Ideally, when questioning a witness, you want to end on a high note. Sometimes, in cross examination, that means finishing off with a provocative question that you know will be objected to. You can respond with “I’ll withdraw the question“ knowing full well that merely asking the question brings some issue to the attention of the jury.
Even better is when the witness answers the question without waiting for their lawyer to object. Or, you just want to see the witnesses reaction to the question, even though you know you will not get an answer.
If an attorney anticipates some statements or issues coming up that would be prejudicial if even mentioned, they can try and head that off at the pass with the filing of a motion in limine.
Such a motion, which addresses issues on the eve of trial, might preclude the other side from even bringing up the subject.
This way, if something gets mentioned, you have more grounds to move for a mistrial, instead of just asking the judge to strike it (“judge, this is a violation of your pretrial order. And we [cue favorite lawyer analogy] we can’t unring this bell”
It’s not a guarantee, but this way you can avoid the prejudice that might come from some disclosure you wanted to avoid the jury hearing.
Yes. Such motions are made all the time. it’s rare for them to be granted. As one judge told me last year, “Every error doesn’t require a mistrial, we have other ways to deal with these things.”
Nearly all testimonial objections must be made contemporaneously or they are waived. The general principle is that the party offering the testimony should have the ability to cure the objection (for example, restating a question to ask a witness his understanding of something instead of a direct quote from a third party, or explaining a purpose of the testimony other than proving the truth of the statement).