TRIAL EVIDENCE:

MAKING AND MEETING OBJECTIONS

By: EDWARD A. MALLETT

Mandell & Wright, L.L.P. 712 Main, Suite 1600 Houston, TX 77002-3297

713-228-1521 713-228-0321fax mallett@mandellwright.com

TCDLA FEDERAL LAW SEMINAR September23, 1999 Dallas, Texas

EDWARD A. MALLET-F

Education: A.B., Government,Dartmouth College (1967) J.D., The University of Texas (1970)
Job:

Partner, Mandell & Wright, L.L.P., Houston, Texas Board Certified in Criminal Law, TexasBoard of Legal Specialization,since 1975 ProfessionalActivities: President-Elect,National Associationof Criminal DefenseLawyers, 1999-2000 Life Member, National Associationof Criminal DefenseLawyers President,Texas Criminal DefenseLawyers Association, 1988-89 President,Harris County Criminal Lawyers Association, 1982-83 Author and Grader, StateBar of Texas,SpecializationExaminationin Criminal Law, 1986-89 Fellow American Board of Criminal Lawyers, 1988-present Director, Advanced Criminal Law Course,StateBar of Texas, 1985 Treasurer,Texas Young Lawyers Association, 1981-82 Life Fellow, Texas Bar Foundation Life Fellow, Texas Criminal DefenseLawyers EducationalInstitute Fellow, Houston Bar Foundation TeachingPositions: Faculty, National Criminal DefenseCollege,Mercer Law School,Macon, Georgia, 1990-present Adjunct Professor,University of Houston School of Law (19834996) Author/Speakerfor the StateBar of Texas,Professional DevelopmentProgram,AdvancedCriminal Law Course, 1976-99 Wrote outlines and lectured on thesetopics: Grand Jury Representation,Indictments and ChargingInstruments,Multiple DefendantCases, Jury Argument,Impeachment, Extraneous Offensesand Privileges.

TABLE OF CONTENTS

I. II. III. IV. V. VI.

THINK ABOUT THE JURY ....................................................................... .l OBJECT FOR A REASON ........................................................................... 1 KNOW HOW TO OBJECT AND ANSWER ............................................... 4 USE THE FEDERAL RULES OF EVIDENCE ............................................ 5 PROTECT THE RECORD. ........................................................................ 12 CONCLUSION ........................................................................................... 13

ii

I.

THINK

ABOUT THE JURY

A. B. C.

THE JURORS REMEMBER AND INTERPRET EVERYTHING THEY SEE AND HEAR. REMEMBER: THE JURY DOESNT HEAR EVERYTHING. JURORS MIGHT OBEY CURATIVE INSTRUCTIONS (RULE 105) WITH THEIR HEADS BUT NOT THEIR HEARTS, (You will disregardthe Defendants criminal history in decidingwhether he did it . . (again).)

II.

OBJECT FOR A REASON

A. B.

A TRIAL IS NOT AN EVIDENCE TEST. BUT, ITS HARD TO WIN ON APPEAL WITHOUT OBJECTIONS 1. 2. Generally,there is a distinction betweenwaiver and forfeiture. Waiver is an intentional, tactical or strategicdecisionnot to object. Forfeiture is a failure to object. There must be an objection, or there must be Plain Error for an evidentiary issueto be raisedon appeal, The leading casesincluded US. v. Olano, 113 SCt. 1770(1993) and U.S. v. Cahdy, 37 F.3d 160 (5* Cir. 1994)(enbane). Omitting citations, Calverly holds at 37 F.3d 162: In U.S. v. Olano, the SupremeCourts most recent pronouncement plain error, the Court on carefully articulated the parameters of that standard. There first mustbe error. Error is definedas a deviation from a legal rule in the absence a of valid waiver. Waiver, the intentional relinquishment or abandonmentof a known right, is distinguishablefrom forfeiture, the failure to makethe timely assertion a right. of Whereas the former results in no error, the latter does not extinguish the error. Thus, a forfeited legalerror, or unobjected-to, unwaived error, may be reviewableif it qualifies.

The second requirement is that the error be plain. Plain is synonymouswith clear or obvious, and [a]t a minimum, contemplates an error which was clear under current law at the time of trial. The Fifth Circuit reiteratedthe Calverly standardsin U.S. v. Webster, 162 F.3d 308, 350 (SLh 1998): Cir. To find plain error, we must perceive (1) an error by district court, in that it deviatedfrom a legal rule, (2) that was clearand, at a minimum, obvious under current law at the time of the trial, and (3) the error must affect substantial rights. 3. A defendantwhose lawyer fails to object also hasthe burden of proving substantialprejudice. Olano was cited in U.S. v. Dukes, 139 F.2d 469, 476 (5 Cir. 1998): <.. . this Court neednot correct forfeited errors that do not affect the fairness,integrity and public reputation of the judicial process. A substantialright of the defendantmustbe affectedby the erroneous ruling. Calverly quotesOlano, 37 F.3d at 164 and states,citations omitted, as follows: Oluno counselsthat in most casesthe affecting of substantialrights requires that the error be prejudicial; it must affect the outcome of the proceedinK The burdenof persuasion with lies the defendant. Absent a showing that a substantial right has been compromised, no remedy is available. This is the reverseof the harmlesserror analysiswhich provides that a defendantwho has objectedto an error at trial receives relief absent a demonstrationby the governmentthat no prejudiceresulted. Comments: a. The governmentmust prove objected-to error is harmless. b. If error is forfeited, the Defendantmust show that the plain -2-

4.

error affectedthe outcome,i.e., that he would probably have beenacquittedor the casedismissed. c. How do we do (b) without interviewing the jurors? An unobjected-to commenton the Defendantssilence,and a courts 5. chargewhich omitted an instruction on the FiRh Amendment,was not reversible error. U.S. v. GrifJh, 118 F.3d 3 18 (5* Cir. 1997). C. YOUR PERFORMANCE IN MAKING AND MEETING OBJECTIONS CAN IMPACT ON MANY IMPORTANT AUDIENCES: 1.
2. 3. 4. 5. 6. 7. 8. 9.

10. D.

Judge. Jury. Appellate court. Defendant. Public in courtroom. Media and the community. Other lawyers. Potential clients. The 52255 lawyer. Malpractice carrier, StateBar, etc.

THERE MAY BE MULTIPLE REASONS TO OBJECT, INCLUDING: 1.

2. 3. 4. 5. 6. 7.

We want a fair trial and we want it now. Keepjury from hearinginadmissible evidence. Protect the record. Tell jury the prosecutoris unfair to justice and hiding the truth. Interrupt flow of prosecutionscase. Createopportunitiesto narratethemesand points to jury. Demonstratesuperior confidencethat the law and the facts favor the defense.

E.

WHY WE RESPOND TO PROSECUTION OBJECTIONS: 1.

2.

SeeII-D, Reasonsto Object, above. Inflict pain if prosecutoroverruled.

F.

WHY NOT OBJECT? 1. It is rude to interrupt while someoneis speaking;somemembersof the jury might be offended.
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2. 3. 4. 5. 6. III.

Youll be overruled and hurt twice as much. Youll appearto be afraid of the truth. You legitimize objectionsby, and rulings for, the prosecution. Antagonizesthe judge. Paying attention to the objection channelis a mentaldistraction.

KNOW HOW TO OBJECT AND ANSWER A. STEPSIN MAKING AN OBJECTION: The Hail (Objection; I rise, Your Honor, to object; Excuse me, please,for interrupting, but we object . . .I). Grounds (This is hearsay). 2. Go to sidebaror excusejurors, to avoid jury hearingharmful inadmissible 3. evidence. Authority (Rule 803 forbids letting Judy testify about what sheheardJohn 4, say). Harm (Johnsstatementis harmful, because , .I). . 5. Get a ruling (Respectfully,Your Honor, by move along,was the court 6. sustainingthe objection? or, May the record reflect the objection was overruled?). Obtain curative instruction or be deniedrelief 7. Move to strike (Rule 103(a)(1)). a. Motion for Instruction that Jury Disregardthe Objectionable b. Question,Answer, Statementor Event. Move for mistrial (No instruction can cure. . .). C. Rule 403 objection, d. e. Move for limiting instruction (Rule 105), to be given when the evidenceis first admittedand renewedin the Instructions on the Law. STEPSIN MEETING AN OBJECTION: 1. 1. 2. 3. 4. Assert standing(May we reply?I* May I be heard?; May the record , reflect?; etc.). If a generalobjection is sustained, assume objection is to form and the rephrasethe question. If objection is specific, statewhy the questionis proper or a theory of limited admissibility. If you really needthe answer,but dont seethe solution: Ask for a recess. Approachthe benchand ask for help. i: C. Ask for a reasonor a basisfrom the prosecutor and/or for the court -4-

B.

d. 5. Style: i:
C.

to state the basisfor its ruling (at sidebar). Announcewell comeback to that, or well reservethis for when we recall the witness, and look for help from another defense lawyer or a book. Speakto the judge, not the prosecutor. Keep cool and courteous. Use plain language. Persist(dont be intimidated). (I apologize. I dont meanto offend the court. And I dont want any other court to sayMr. Smith wanted to waive his right to a fair trial. I must statethe grounds for my objection.) Dont show your injuries--acceptdefeatgraciously--pretendyou are satisfied(Very well, Your Honor). Accept victory--be a good winner--repeatand recycle favorable testimony admittedover objection. Always acceptan invitation to explain to the jury why your evidenceis relevant. (The relevance,may it pleasethe court, is . . . .II1 Dont allow prosecutorto makerelevanceor any other arguments in jurys presence.(Excuse me, we needto take this up, at the benchor during the next recess,as the law requires . . . .I)
RULES OF EVIDENCE THE RECORD RULES:

d.

e.

f. g* h.

Iv.

USE THE FEDERAL A. THE MAKING

1.

RULE 103. Rulings of Evidence. (a) Effect of erroneous ruling. Error may not be predicatedupon a ruling which admitsor excludesevidenceunlessa substantialright of the party is affected; and In casethe ruling is one admitting evidence,a timely objection or motion to strike appearsof record, stating the specific ground of objection, if the specificground was not apparentfrom the context; or
(1) Objection.

(2) Offer of proof. In casethe ruling is one excluding evidence, the substance the evidencewas madeknown to the court by offer or was of apparentfrom the context within which questionswere asked.
(b) Record of offer and ruling. The court may add any other or further -5-

statementwhich showsthe characterof the evidence,the form in which it was offered, the objection made,and the ruling thereon. It may direct the making of an offer in questionand answerform.
(c) Hearing of jury. In jury cases, proceedingsshall be conducted,to the extent practicable,so asto prevent inadmissibleevidencefrom being ugested to the iun! by any means,such as making statementsor offers of proof or asking questionsin the hearingof the jury (emphasisadded). (d) Fundamental error. Nothing in theserules precludestaking notice of plain errors affecting substantialrights althoughthey were not brought to the attention of the court.

2.

RULE 104. PreliminaryQuestions.

(a) Questions of admissibility generally. Preliminaryquestions

concerningthe qualification of a personto be a witness, the existenceof a privilege, or the admissibilityof evidenceshall be determinedby the court, subjectto the provisions of subdivision(b). In making its determinationit is not bound bv the rules of evidenceexceptthose with respectto privileges (emphasisadded).
(b) Relevancy conditioned on fact. Whenthe relevancyof evidence

dependsupon the fulfillment of a condition of fact, the court shall admit it upon, or subjectto, the introduction of evidencesufficient to support a finding of the fulfillment of the condition. Hearingson the admissibilityof confessionsshall in all casesbe conductedout of the hearingof the jury. Hearings on other preliminary mattersshallbe so conductedwhen the interestsof justice require or, when an accusedis a witness,if he so requests.
(c) Hearing of jury. (d) Testimony by accused. The accuseddoesnot, by testifying upon a prehminarymatter, becomesubjectto cross-examination to other issues as in the case. (e) Weight and credibility.

This rule doesnot limit the right of a party to introduce before the jury evidencerelevantto weight or credibility.

3.

RULE 105. Limited Admissibility. When evidencewhich is admissible to one party, or for one purposebut as not admissibleas to anotherparty, or for anotherpurpose,is admitted, the court, upon request,shall restrict the evidenceto its proper scopeand instruct the jury accordingly. -6-

Malletts Commenton Limiting Instructions: I havefound little in the-wayof caselaw and exampleson limiting a. instructions. It is clear that the limiting instruction should be given when the evidenceis offered and that it may be reversibleerror to defer giving a limiting instruction until the jury charge. However, I havenot found a set of model in-trial limiting instructions in any form book or treatise. b. Paid ProsecutionWitnesses: requested,the court should give a If specialinstruction on the credibility of a paid witness. United Statesv. Dukes, 139F.3d 469,476 (Sti Cir. 1998). A confessionby a non-testifyingcodefendant implicatesthe that Defendantcannotbe curedby a limiting instruction. Grq v. Maryhnd, 118 S,Ct. 115 (1998). The Fifth Circuits PatternJut-vInstructions -- Criminal Cases (West, 1990) gives only one exampleof a limiting instruction to be given when evidenceis admitted. The full pageof Pattern Jury Instruction 1.40 is reprinted,as follows:
Cautionary Instruction During Trial--Transcript Recorded Conversation. of Tape

C.

d.

*Exhibit _ hasbeenidentified as a typewritten transcript [and partial translationfrom Spanishinto English] of the oral conversationwhich can be heardon the tape recording receivedin evidenceas Exhibit -_ The transcript also purports to identi@the speakersengagedin suchconversation. I haveadmittedthe transcript for the limited and secondary purposeof aiding you in following the content of the conversation asyou listen to the tape recording, [particularly those portions spokenin Spanish],and also to aid you in identifying the speakers. However, you are specificallyinstructedthat whether the transcript correctly or incorrectly reflects the content of the conversationor the identity of the speakersis entirely for you to determinebasedupon your own evaluationof the testimonyyou haveheardconcerningthe preparationof the transcript, and from your own examinationof the transcript in relation to your hearing of the tape recording itself asthe primary evidenceof its own -7-

contents;and, if you should determinethat the transcript is in any respectincorrect or unreliable,you should disregard it to that extent.
Note

This instruction shouldbe given when the tape is played and againin the final charge. 4.
Rule 106 - Remainder of or Related Writings or Recorded Statements.

When a writing or recordedstatementor part thereof is introduced by a party, an adverseparty may require the introduction at that time of any other part or any other writing or recorded statementwhich ought in fairnessto be consideredcontemporaneously with it (emphasisadded). (This is called the rule of completeness.) B. THE RELEVANCY RULES: 1. RULE 40 1. RelevantEvidenceDefined. Relevant evidencemeansevidencehaving any tendencyto makethe existenceof any fact that is of consequence the determinationof the to action more probableor lessprobablethan it would be without the evidence. RULE 402. RelevantEvidenceGenerallyAdmissible;Irrelevant Evidence Inadmissible. All relevantevidenceis admissible, except as otherwise provided by the Constitution of the United States,by act of Congress,by theserules, or by other rules prescribedby the SupremeCourt. pursuantto statutory authority. Evidencewhich is not relevantis inadmissible. RULE 403. RelevantEvidence&t Admissible. Although relevant, evidencemay be excludedif its probative value is substantiallyoutweighedby the dangerof unfair prejudice, confusion of the issues,or misleadingthe jury, or by considerationsof undue delay, waste of time, or needless presentationof cumulativeevidence. RULE 404(b). PropensityEvidenceNot Admissible. (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes,wrongs, or acts is not admissible prove the characterof a personin order to show to that he acted in conformity therewith. In may, however, be admissiblefor other purposes,suchas proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence mistakeor accident,provided, of upon timely requestby the accused,reasonable notice is given in advance of trial of intent to introduce in the statescasein chief such evidenceother

2.

3.

4.

than that the arising in the sametransaction. 5. OTHER GROUPSOF RULES: READ THESE RULES: 1. 2. 3. 4. 5. 6. 7. C. PRIVILEGES: The FederalRules simplycite I. . . the principlesof the commonlaw as they may be interpreted . . . in the light of reason and experience. Federal evidence is evolutionary. In 1980the Supreme law Court profoundly changed the law of spousalprivileges, Trammelv. United States, 100 S.Ct. 906, so that the testimonial privilege now belongs only to the testifying spouse. In 1996the Supreme Court createda privilegefor communications with a social worker and psychotherapist, Jafee v. Redmond,116 S.Ct. 1923. Rule 803(lS) Learned treatises. To the extentcalledto the attention of an expert witness upon cross-examination relied upon by the expert or witness in direct examination,statementscontained in published treatises, periodicals,or pamphletson a subjectof history, medicine,or other science or art, established a reliableauthority by the testimonyor admissionof the as witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidencebut may not be received as exhibits. D. ARTICLE 8: HEARSAY: 1. 2. Practical Rule in Practice:Hearsayis admissibleif it helps the prosecution, not admissibleif it helpsthe defense. The HearsayRule accordingto Mallett: a. Definition: Hearsayis an out-of-court statement. Rules: b. Hearsayis not admissible. (1) There are exceptionsto the Rule. (2) Different judges havedifferent notions of what the (3) exceptionsare. If the prosecutorneedsit, it is probably coming in, and any (4) error is probably harmless. -9Rule 404: CharacterEvidence Rule 405: CharacterEvidence Rule 608: Characterand Conduct of Witness Rule 406: Habit, Routine, Practice Rule 410: Inadmissibilityof PleaDiscussionsand Related Statements Rule 602: Lack of PersonalKnowledge Rule 607: Who May Impeach

3.

The original source of hearsay-- the declarant-- may be impeached. Rule 806 includesthis language: I. . . the credibility of the a. declarantmay be attacked,and if attackedmay be supported,by any evidencewhich would be admissiblefor those purposesif declaranthad testified as a witness. The defensemayuse Rule 404(b), to show the declarantsmotive, b. intent, bias, etc. by extraneousmisconduct. The FederalRulestreat a conviction while on appealas final for c, impeachment purposes(Rule 609(e)). Tex. R. Cr. Ev. 609(e) is the opposite.

E.

HOW TO QUESTION: See RULE 611. MODE OF INTEIRROGATION: WHEN DIRECT QUESTIONS ARE REQUIRED AND LEADING QUESTIONS PERMITTED.
(a) Control by court. The court shall exercisereasonablecontrol over the mode and order of interrogatingwitnessesand presenting evidenceso as to (1) makethe interrogationand presentationeffective for ascertainingthe truth, (2) avoid needless consumptionof time, and (3) protect witnessesfrom harassment undueembarrassment. or

Cross-examination should be limited to the subjectmatter of the direct examinationand mattersaffecting the credibility of the witness. The court may. in the exerciseof discretion, permit inauirv into additionalmattersas if on direct examination. (Emphasisadded.)
(b) Scope of cross-examination. Comment: Respondto the Outside the Scope objection by referring (9

(ii)

to the 61l(a) and(c) discretionto permit affirmative use of the witnesscalledby the prosecutor. Sayyoull connect it up later as permitted by Rule 104(b).

(c) Leading questions. Leading questionsshould not be used on

the direct examinationof a witnessexcept as may be necessary develop to the witnesstestimony. Ordinarily leadingquestionsshould be permitted on cross-examination.Whena partv calls a hostile witness. an adversepar&, or a witness identified with an adverseparty, interrogation mav be by leading questions.(Emphasisadded.) F. TRADITIONAL AND COMMON LAW OBJECTIONS (RULES 402 AND
403):

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1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. G.

Violates Motion in Limine. Violates prior ruling of the court. Leads the prosecutionswitness regardingmaterialor contestedfacts. Calls for narrative questionor constitutesa narrative response(requestsor gives more than one new, material,relevant,controverted fact). Misstatesthe record or prior testimony. Repetitive (asked and answered).(Reply: Opposing counselhas asked this questionbut I havenot.) Assumesfacts not in evidence(and not conceded). No proper foundation (no proper predicate). Waste of time. Bolstering (Rehabilitationbefore attack). Calls for a legal opinion (or expert opinion from unqualified witness). Invites speculation,not personalknowledge. Impeachmenton a collateralmatter (Mark Fuhrmanin the O.J. Simpson trial). Non-responsiveanswer. No personalknowledge. Truthfulnessof anotherstestimony.

OBJECTIONS TO THE FORM OF QUESTIONS: 1. 2. Ambiguous (likely confusingto witnessor jury). Argumentative: Asks witnessto testify to his own credibility. a. Merely an effort by counselto summarize, commentor quarrel with b. an answer. Compound questions(containsmore than one question). Confusing. Harassingor embarrassing witness. the Unintelligible. Unfair. Impolite, rude, offensive.

3. 4. 5. 6. 7. 8. H.

OBJECTIONS TO OBSERVABLE EVENTS DURING TRIAL: 1. 2. Verbalize the conduct by oral description,stategrounds, authority, show harm, get a ruling, etc. Example: May the record reflect the prosecutorhasthe words Organized a. Crime written on a box on the table in front of the jury. -ll-

b.
C.

d.

That box injectsunsworn testimony. The jury may concludethat Mr. Smith should be convicted because theyll think hesin the Mafia. (Objection sustained-removethe box). Continue to Object: The jury will neverignore that box--no matter what instruction the court gives--we move for a mistrial.
THE CONTEMPORANEOUS

V.

PROTECT THE RECORD - FOLLOW OBJECTION RULE.

A. Exclude the jury from hearingthat inadmissibleevidenceevenexists! (Rule 103(c); Motions to Suppressand Motions in Limine), B. Objectionsmust be timely and specific(Rule 103 (a)(l) and cite anticipatedharm.) C. A proponent may offer for a limited purposeand the onnonentis responsiblefor requestinga limiting instruction when the evidenceis admitted. The opponentmay object to the sufficiency/adequacy the courts limiting instruction. of D. The defendantmust be deniedrequestedrelief. E. The record must show what was excludedand the harm from exclusion,or the harm from evidencewrongly admitted. F. If evidenceis admitted for a limited purpose,and usedor arguedfor anotherpurpose,the appellatecourt will assume forfeiture or waiver of the limitation unlessthe objection is renewed. G. The appellatecourt will usually only considercontentionspresentedand overruled by the trial court. H. What is admittedas relevant under Rule 402 may be properly objectionableunder Rule 403. (Seethe Old Chief case, 117 S.Ct. 644 (1997))(Factsof prior convictions inadmissiblein felon in possession a firearm caseif Defendantwill stipulatedto being of convicted.). I. Force the prosecutor to state his Rule 402 relevance,his Rule 105 limited purposesand then his Rule 403 justification. J. If the objection is sustained,move for curative instruction; if given, move for a mistrial. K. Have limiting instructions generallyrenewedin the jury chargeand move in limine to restrict improper use in jury argument.

VI.

CONCLUSION

1.

The making and meetingof objectionsis part of the show. -12-

2. 3.

Ignore the Rules of Evidence and the prosecutorand court will roll all over you, because nothing is being preservedfor appellatereview. Enforce the rule and the steamrollermay slow down.

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