16 November 2009

MRE 103 - Making and Phrasing Objections

1. Counsel's Objective. Make timely, well-reasoned objections; state and explain them accurately. Anticipate and defend your case against government objections.

2. Key points.

a. Do's:
(1) Be timely. Nowhere is waiver construed more strictly than with evidentiary objections. If you don't object right away, you've generally waived the objection ( see Mil. R. Evid. 103(a)). Object, therefore, as soon as you feel the instinct. Then pause for a second and . . .
(2) State your grounds (if you can). Try to be more specific than the old standby "irrelevant, immaterial and incompetent." As you fine tune your ear, you will hone the ability to state objections precisely. By pausing before stating grounds you accomplish two things: (a) you gain an extra second or two to think, and (b) you give the judge the chance to sustain (or, unhappily, to overrule) the objection before you state grounds. If you can't come up with a "tag" for the objection ( e.g., relevancy, asked and answered), then give your reasoning. "Your honor, counsel is asking the witness to talk about the theory of urinalysis testing when all he did was run the sample through the machine." The short objection would be "lack of foundation" or "competency," but that sentence accomplishes the same purpose. If you can cogently state your reasons without a summary heading, you have still accomplished your purpose. In addition, you have given the judge time to think -- sometimes the reason she asks for the grounds for the objection to begin with -- and improved your chances of being sustained. Mil. R. Evid 103(a)(1) requires "stating the specific ground . . . if [it] was not apparent from the context." TIP: place a list of common objections inside your trial notebook that you can scan when groping for a basis for an objection. Most importantly, never fail to object out of a fear that you won't be able to articulate the grounds. Trust your instincts that something is wrong.
(3) When do you object? Wait until the question is asked but state your objection before the witness starts to answer.
(4) Be aware of the panel. Panels may be inclined to think that objections are lawyers' gamesmanship. Consider this in deciding whether to object. A panel may assume you are trying to hide harmful evidence. An overruled objection also calls attention to unhelpful evidence that might otherwise have seemed less prominent; don't help the defense highlight its evidence.
(5) Style. Oral advocacy is important even when stating an objection, especially in front of a panel. Choose your wording carefully and be aware of your demeanor. As always, avoid the temptation to feigne outrage, but a weary tone may be appropriate, e.g., in making a reluctant "leading" objection after counsel has persisted in leading. Similarly, true outrage may be valid when counsel has led a witness to an obviously objectionable area.
(6) Plan, plan, plan. You know (or should know) before trial that the government is going to ask one of your witnesses about his prior conviction or to ask your client about prior bad acts under MRE 404(b). Anticipate and write out the objections. Similarly you know that the government likely will object to certain questions that you know you may properly ask. Prepare your responses so that you can reduce fumbling at trial, respond appropriately and keep your focus on your case.
(7) Reduce government openings. One common but easily overcome objection is "insufficient foundation." Such an objection is rarely fatal, because counsel can usually back up a few steps, ask a few more elementary questions, and lay the foundation. Thorough preparation, relying on sources such as Imwinkelried's Evidentiary Foundations, should foreclose most of these objections and contribute to your command of the courtroom.
(8) Stay cool when the government objects. Collect your thoughts and respond. You do not forfeit your legal standing by being courteous, and may even endear yourself to the judge or panel by responding with firm politeness to objections, even trivial ones. If you can quickly overcome the objection or perceive your mistake, offer to correct it ("Your honor, I'll rephrase"); generally, however, you should wait for the judge to rule, because he may overrule the objection.
(9) Respond firmly. Given the growing inclination to let in as much evidence as possible, many objections are overruled, especially those that are more purely matters of form. Therefore, don't retreat right away and offer to withdraw the question or to rephrase a question.
(10) Prepare to make an accurate offer of proof. When the government objects, for example, on relevancy or hearsay grounds a cautious (or indecisive) judge may ask you to make an offer of proof. You must be prepared to state what the witness will say (you will know this from pretrial preparation) and why this witness may properly, for example, quote the victim or lay the foundation for the checks or lab report, or offer an opinion as to cause of death. The judge may allow you to make an oral offer (Mil. R. Evid. 103(a)(2)) or may ask that you present the offer in question and answer form (Mil. R. Evid. 103(b)). In the latter circumstance, you call the witness and examine him just as you would at trial. The judge will then consider the questions and responses and determine how much, if any, of the exam will be admissible . This lets the government see your evidence in advance (not a major problem, given liberal discovery and government pretrial access to witnesses), but it also enables you to prepare your case in detail.
(11) Prepare your witnesses. They must know not to be intimidated by objections. Instruct them to stop speaking the moment an objection is made and not to speak again until directed by the judge; it is futile and rude to try to speak over an objecting attorney. Let them know that you'll be alert to rescue them with objections, but also not to edit their testimony after government objections are overruled. Also tell them they may try to give a more detailed answer than yes or no if such an answer would be incomplete or misleading. Better, insure they know you will rescue them with an opportunity to explain the answer if they are forced into a yes or no answer on cross-examination.
(12) Maybe a government objection can help you. When going through your mental checklist and deciding whether to object, think about how you may be helped. For example, the government might open the door to evidence that you would like to ask this witness -- or their witness -- by asking an otherwise objectionable question of your witness. The government also can help you re-order your case when making foundation or hearsay objections. By requiring you to go through the sometimes mechanical or exhaustive steps of laying a foundation (or laying it more comprehensively than you did the first time), you get the chance to recapture the focus of a panel whose attention you may have started to lose.
(13) Use motions in limine. It is risky to wait until the government asks a question to object. When you anticipate that the government will ask certain questions or offer certain evidence, you should prepare a motion in limine ("at the threshold") to seek a judge's ruling in advance that the government may not offer the disputed evidence. This applies to anticipated hearsay, speculative testimony about which there is inadequate foundation, expert testimony and other prejudicial evidence that you can anticipate. A judge is not required to rule on motions in limine, but often will do so in the interests of clarity and a smooth trial. Your motion alerts the judge, increases the pressure on the government (and smokes out government theories of admissibility) and increases the chance that your objection will be sustained. If denied in limine , you should renew your objection on the merits.
(14) Don't always use motions in limine. You may not want to give the government the advantage of knowing that evidence it plans to introduce is inadmissible. In such situations, consider holding your objection until the government asks the question or offers the evidence. This may derail the prosecution and keep you in control of the courtroom. This should not be your normal course -- you need to be sure your objection will be sustained and that the government will not harm your case just by attempting to offer the evidence, but there are times that you can benefit from remaining mum.
(15) Some common objections:
(a) "Leading." Strictly, a leading question is one that suggests the answer, such as "Isn't it true that it was raining that day?" Not all questions that require yes or no answers are leading. For example, "Was it raining that day?" is not leading, because the witness is free to answer "yes," "no," or "I don't recall." Some judges see this differently, so be prepared to adapt. Reserve this objection for instances in which your opponent is blatantly leading a reluctant, ill-prepared or inarticulate witness. In such circumstances, you should force the government to better craft its questions because (1) you will interrupt the flow of the exam, and (2) highlight to the jury that it is counsel and not the witness who is testifying. If the government puts important words in its witness's mouth, "counsel is testifying" is an effective way to phrase the "leading" objection, because it sounds less whiny ("leading" can sound like an insider's objection) and it tells the panel that counsel is manipulating the proof, afraid to risk its coming from the mouth of his own witness. Remember that counsel always may lead on cross-examination.
(b) "Asked and answered." You need a good reason to use this objection because it can sound petty. If opposing counsel is re-plowing old ground either because he is disorganized or is trying to emphasize a point, you can consider this objection. However, you probably do not care enough -- the jury may hold his tactics against him -- to waste an objection in this area. If he keeps rephrasing the question to get the exact answer he wants, take care of that on cross and in one sentence of argument in which you remind the panel of how the government counsel had to repeatedly mine the witness until the phrasing was to his satisfaction (suggesting that the testimony is less worthy of belief).
(c) "Badgering the witness." Sometimes the judge will sustain it, sometimes he won't. When you are cross-examining a hostile, unsympathetic witness you should badger him up to the point that you risk engendering sympathy. If your witness is being pilloried, however, a "badgering" objection, even if overruled, can be useful because it: (1) reminds the government you're alert and not going to tolerate abusive questions, (2) plants the idea in the government mind that you will renew this objection with this or other witnesses, further hampering the pace and control of the exam, (3) starts the judge thinking about overreaching conduct by the government and, sometimes most importantly, (4) lets your witness know that you'll not abandon him or her.
(d) "Assuming facts not in evidence." Counsel may not slip into a question material that is not before the court. It must either introduce such evidence or ask the question as a hypothetical.
(e) "Compound question." This is almost a neutral objection with a goal of clarity. If the government asks "Did you arrive at 0830 and see the accused in formation," a "compound" objection would lie, because it is unclear whether the response relates to the time of arrival or seeing the accused. For tactical reasons you may want to let the question go and point out in argument that the ambiguous answer is not probative evidence.
(f) "Argumentative." When the government's question is less a true question and more a statement for the jury, object as argumentative. Again, not worth using often but worth posing when counsel repeatedly uses the tactic under the guise of tough, leading cross-examination.
(g) "Beyond the scope of the direct." When the government tries to delve into areas wholly unrelated to the direct exam, use this objection to rein him in. It is worth risking jury curiosity ("What is the defense trying to keep out?") when the objectionable material is damaging but collateral. If especially significant, consider asking for a limiting instruction as well.
(h) "Degrading." Mil. R. Evid. 303 prohibits immaterial and degrading questions "before any military tribunal." This does not include courts-martial, but does include Art. 32 investigations. (16) If you receive a preliminary, tentative ruling from the judge on an objection or motion in-limine, you must object again at the appropriate time to preserve the issue for appeal. See Jones, 43 M.J. 708.

b. Don'ts:
(1) Don't object unless there's a good reason, legal or tactical. The major reasons: courtesy and inevitability.
(a) Courtesy. No one likes to be interrupted when speaking (counsel or witness) nor when a story is being told (judge or panel). Therefore, don't object unless the information is so prejudicial and objectionable that it truly must be kept out, or when there's a strong tactical reason, such as protecting your witness, sending a message to the panel or interrupting your opponent.
(b) Inevitability. If your know from pretrial preparation or experience that the information inevitably will be admitted, it often pays not to bother objecting because you look like the rule-bound counsel trying to play "legal gotcha" and trying to hide evidence.
(2) Don't object during argument unless you have an especially good reason. If the government counsel is stating something in an opening statement that she will not be able to prove, let her lay a trap for herself that you will personally spring when she hasn't kept her promise by the close of the case. If the government is exaggerating or quoting information not in evidence during the closing argument, slam that door in your closing. The statement would have to be especially egregious to warrant interruption of argument; very rarely is it worth the breach of courtesy (or risk of a payback).
(3) Don't argue until the judge asks you to do so. The government makes a spurious objection to which you want to respond, especially in front of a panel. Often the judge will decide immediately that the objection has no merit and say "overruled" without hearing argument. Therefore, there are two good reasons to wait: (1) don't trample on the judge and unnecessarily irk him and (2) the pause give you time to think.
(4) Speak to the judge, never to opposing counsel. Never address your opponent when making an objection and never let your opponent force you to answer him. If he asks you a question, ignore it until the judge asks you to answer it, then answer the judge only. Not only is this common sense (counsel make objections, judges make rulings) but it makes clear that you won't be baited by the government and signals to judge and jury that you remain in control of your case.
(5) State your case outside the hearing of the members. Do not exploit the opportunity to argue an objection in front of the members. If the substance of the discussion could taint the panel -- for good or bad -- request an Article 39(a) session.

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