“Preparation is the be-all of good trial work.”1
— Louis Nizer, New York trial lawyer
Mastering trial objections requires one to be conversant with the rules of evidence. The reasons for objecting are to shape the testimony heard by the jury and preserve the record for a directed verdict, judgment notwithstanding the verdict, motion for a new trial, and appellate review.
Many lawyers are oblivious to the pitfalls of bringing law school methodology into the courtroom. This is not a law school examination where an objection must be raised to every technical violation of the rules of evidence. The consummate trial lawyer considers whether to object at all, deciding in a split second the overall effect the proffered evidence and potential objection will have on the judge, the jury, and the appellate record.
For example, objecting to leading questions on undisputed and preliminary facts on direct examination is a waste of time. Do not make repetitive objections; asking for a running objection is sufficient. Repetitive objections are annoying when a single objection to a line of questioning will suffice. In addition, repetitive objections signal to the jury that you are attempting to hide information from them. Do not make any objection without a good reason. Unless it is necessary to preserve the record or unless you believe you will be sustained, it is usually unwise to object. Finally, do not make objections when the evidence is harmless.
OBJECTIONS AT TRIAL
An objection must be timely and specific, otherwise it is waived.2 To be effective, the opponent must specify both what they object to and why they are objecting. The opponent should identify the word, phrase, or question they object to and state the specific legal ground for their objection.
For example, I usually state:
- “Your honor, I object to the admission of exhibit A on the ground that there has been insufficient authentication.”
- “Objection your honor, relevancy, Rule 401 or leading.”
- “Your honor, counsel is putting words in the mouth of the witness or unreliable hearsay.”
Michigan Rule of Evidence 103(a) (1), which is identical to Federal Rule of Evidence 103, requires that the opponent state “the specific ground of objection, if the specific ground was not apparent from the context[.]”
REQUEST TO TAKE A WITNESS ON VOIR DIRE
Voir dire, an Old French phrase that means “to speak the truth,” is functionally a cross-examination during the proponent’s direct examination. It applies when there is a question of preliminary fact such as authentication of a document, best evidence rule, hearsay, opinion, competency of a witness, and other matters. The opponent interrupts by requesting the judge’s permission to take the witness on voir dire. The opponent asks the witness a series of questions to determine the authenticity of a document, whether the witness has personal knowledge of a fact, or whether the witness qualifies as an expert. The questions depend on the issue.
Michigan Rule of Evidence 104(a), which is identical to Federal Rule of Evidence 104, provides that the trial judge make the final decision, such as whether a witness qualifies as an expert, the authentication of a document, and other preliminary questions.3
MOTION TO STRIKE
A motion to strike applies when a witness answers a question so rapidly that the opponent does not have a fair opportunity to interpose an objection, or the answer is improper. In these instances, the opponent should move to strike rather than object. The motion to strike must be timely and specific, and it must be particularized. If the answer contains nonresponsive hearsay, the motion should be based both on nonresponsiveness and hearsay to protect an appeal.
OFFER OF PROOF
When the trial judge sustains an objection, he precludes the proponent from a line of inquiry. The proponent should make an offer of proof stating what the witness would have testified to and why the proponent wanted to elicit that testimony.4 Michigan Rule of Evidence 103(a)(2) regarding offer of proof requires that the proponent ensure that “the substance of the evidence was made known to the court by offer[.]” The court may direct the making of an offer in question-and-answer form.5 The proponent should make the offer of proof out of the presence of the jury. The judge may reconsider and change the ruling, and you have protected the record for appellate review.
MOTION IN LIMINE
Trial attorneys must master procedural rules pertaining to presenting and excluding evidence. If counsel anticipates an evidentiary issue at trial, they need not wait until the trial to object; the attorney may raise the objection by a pretrial motion in limine to get an advance ruling of the evidence’s admissibility.
MRE 103(c) encourages the use of motion in limine by providing:
In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
A motion in limine can be used in both civil and criminal cases to obtain an advanced ruling to offer or exclude evidence. It must state the grounds with the same specificity as a trial objection.
For example, the opponent may use the motion in limine to prevent mention of liability insurance, the defendant’s prior criminal record convictions, evidence of subsequent remedial measures, evidence of compromise or offers to compromise, or to offer or exclude video evidence. It is preferable to determine the issue before the trial and preclude the proponent from even mentioning prejudicial evidence during the trial.
Further, the opponent may need an advance ruling to make strategy decisions for trial. For example, if the judge grants a pretrial motion in limine to exclude the defendant’s convictions, defense counsel can consider placing the defendant on the stand.
Judges like to move proceedings along without delay or interruptions. Lengthy objections in open court are counterproductive. Provide the judge and opposing counsel with a trial brief outlining your position and significant evidentiary issues that are likely to arise. Do not include anything in your trial brief or motion in limine that might alert your opponent to something that they otherwise may have overlooked.
CONCLUSION
Trial attorneys must master two sets of procedural rules: how to present evidence and how to exclude evidence. If counsel anticipates
an evidentiary issue at trial, they need not wait until trial to voice an objection. The attorney may raise the objection by pretrial motion in limine to obtain an advance ruling of the evidence’s admissibility. A motion in limine can be used to offer or exclude evidence.
Effective pretrial discovery, preparation, and mastery of the rules of evidence enhances your credibility with the judge and the jury. Counsel should anticipate potential evidentiary problems, both offensive and defensive, and how to address them. Enter the trial brief, motion in limine, and offer of proof.
If you want to stay in good standing with the judge through a trial, limit objections. Only object to the most important issues. The notion that a trial objection must be raised to every technical violation should be discarded. When it is important to object, your objection must be timely and specific. You cannot raise your objection for the first time on appeal.
Read Michigan Rules of Evidence and Federal Rules of Evidence 103, 104, 401, 403, 801, 803, 804, and 901 in their entirety. Know the distinctions between state and federal courts. Attend seminars on evidence and trial practice and read the many sources of excellent information on the subject.6 This knowledge is priceless.
The ability to make and meet objections well is one of the hallmarks of a consummate trial lawyer. Eventually, you will gain confidence and skill in the courtroom.