From the January 2010 Idaho Observer:
Criminal Law - Part VII: To Object and Preserve
The government builds a story against the accused through something called evidence. To help ensure an effective defense each individual ‘piece’ of evidence must be challenged. Prior to and during trial, anticipated evidence should be challenged - before the evidence is actually offered, through a motion filed ‘in limine’, meaning on the threshold or at the beginning: see Luce v. U.S., 469 U.S. 38, 40 n.2 (1984). A motion to suppress is one example.
Such a challenge would not ordinarily warrant appellate review unless facts supporting appeal were discoverable only after trial, i.e., u.S. v. McKenzie, 768 F.2d 602, 609 (5th eir. 1985), or an objection at trial would have been futile.
The first line of defense at trial is through raising an objection. Challenging evidence includes objecting to witness examination: Common objections are:
- Objections to the substance of the question: The attorney raising this objection is objecting to the answer the question calls for. Generally, the objection would be the witness is incompetent to answer, the answer is immaterial/irrelevant, the question calls for hearsay or an inadmissible response, there was insufficient foundation for the question or the question is beyond the scope of the direct examination.
- Objections to the question: The wording of a question may be objected to for being argumentative, misstating facts, assuming facts not in evidence, being misleading/vague, calling for speculation, or for leading. An attorney is not allowed to lead his own witness. This is to help ensure the sought for response is not suggested to the witness. The judge has great discretion regarding leading of witnesses. If a witness appears to be hostile to examination, the attorney may request the witness be labeled a ‘hostile witness’; in this case, leading questions are allowed. Leading questions are also used during cross examination to test witness credibility and statements made during direct examination.
- It can be difficult to take in everything happening at trial - tone of voice, questions, body language - and be able to object fast enough to stop the witness from answering. If this happens, the attorney must try to frame the objection as one ‘to the answer’. Generally, these objections are for unresponsiveness, an inadmissible opinion or hearsay.
- If an objection is untimely made, say, during the fourth day of trial for something occurring on the second day, the issue is preserved for appeal, but only for ‘plain error’ review. Plain-error is one that is clear or obvious and affects the substantial rights of the defendant; see U.S. v. Olano 507 U.S. 732-35 (1993), also, Johnson v. U.S., 520 U.S.461, 467 (1997).
- Further, let’s say you are at trial and feel something should be objected to but you aren’t exactly sure why - can you object? Yes. Would this objection preserve some sort of issue for appeal? Yes. A non-specific objection is preserved for plain-error review. See, U.S. v. Stewart, 306 F.3d 295, 312-13 (6th cir. 2002).
Though it is seen as a requirement under the’ contemporaneous objection rule’, see Turner v. Murray, 476 U.S. 28, 37 (1986), failure to object during trial doesn’t necessarily preclude raising the issue on appeal. This review would be limited to ‘plain-error’ review. Plain error review may occur if rights were not timely asserted, which is mere ‘forfeiture’, but may not occur if the right to review was ‘waived.’, see Olano, supra at 733.
A criminal trial is a serious matter regardless of whether the potential sentence is 30 days or life without parole. All evidence must be tested through objection. Doing so may save your life.
Stay tuned for a discussion on Access to the courts.
D.M. Sal Salerno
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