I object – some reminders

Prof. Collin Miller has this item on his blog which is an excellent reminder about objections – an issue for the defense much more than prosecution.

You’ve seen it a million times in legal movies and TV shows. A lawyer asks a witness a question, opposing counsel stands up and exclaims, "Objection, your Honor," and the judge overrules (or sustains) the objection. Like many other aspects of legal movies and TV shows, this is not the way that things are usually done in courtrooms across the country. If an attorney merely stood up and said, "Objection," in response to a question without stating the grounds for that objection, that attorney would not have preserved the issue for appellate review. Indeed, as the recent opinion of the Supreme Court of Rhode Island in State v. Reyes, 2009 WL 4730822 (R.I. 2009), makes clear, even if an attorney does state a ground for his objection, but it is the wrong ground, he has not preserved the issue for appellate review.

Mil. R. Evid. 103(a)(1) requires that when making a motion counsel at court-martial, “[state] the specific ground of objection, if the specific ground was not apparent from the context[.]”

Remember that another requirement related to objections is an offer of proof where the MJ sustains a prosecution objection.

Under Federal Rule of Evidence 103(a)(2), the objecting party must make an offer of proof to the court, or else show that the substance of the excluded evidence was apparent from the context of the proceeding, to preserve an objection to a ruling excluding evidence. Fed. R. Evid. 103(a)(2); United States v. Quinn, 123 F.3d 1415, 1420 (11th Cir. 1997). Here, the government notes, there is no indication that the district court knew the nature of the evidence since Henderson did not identify it until a post-trial motion and his initial appellate brief. After trial, Henderson claimed that he wanted to present evidence that Collins was also dismissed because he had engaged in a domestic dispute with his wife that involved his service weapon. He argues that he could not have made an offer of proof at trial because the district judge did not permit bench conferences, requiring parties to reserve issues they did not wish to discuss before the jury to a time when the jurors were not required to be present in court. Moreover, he indicates that the district judge also forbade "speaking objections," where the objecting party explains the basis for its objection, allowing the objecting party to voice only a very abbreviated basis for its complaint.

United States v. Henderson, 409 F.3d 1293, 1298 (11th Cir. 2005).

And finally be attuned to the counsel who makes a “speaking” objection in front of the members.   Here is a little piece from the Utah State Bar Journal about speaking objections.  Note the reference to Senior Judge Cox, of CAAF.  The three primary reasons for such objections cited are:

  1. to coach a trial witness;
  2. to argue to the jury during trial – before the appropriate time for closing argument; and
  3. to make at least some objection when an attorney is at a loss over what to say about bothersome evidence or argument.

Romero’s counsel offered a speaking objection that the allegation was made by Cuellar, that it was not a conviction, that it was not a proven fact, and that there was no police or incident report. At sidebar, the district court overruled the objection and admonished defense counsel for arguing to the jury during an objection.

United States v. Romero, No. 08-40793, 2009 U.S. App. LEXIS 17350, at *7 n.2 (5th Cir. Aug. 4, 2009).

The prosecutor’s speaking objection misstating the law on the presumption of innocence was improper. A new trial is required if that misconduct taken in the context of the entire trial prejudicially affected the defendant’s substantial rights so as to deprive him of a fair trial. See United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir. 1996); United States v. Malone, 49 F.3d 393, 398 (8th Cir. 1995); United States v. McGuire, 45 F.3d 1177, 1189 (8th Cir. 1995), United States v. Emmert, 9 F.3d 699, 701 (8th Cir. 1993); United States v. Joson, 968 F.2d 768, 770 (8th Cir. 1992). Having reviewed the trial transcript, we conclude that the improper remarks could not reasonably have affected the jury’s verdict. See United States v. Alanis, 945 F.2d 1032, 1037 (8th Cir. 1991).

United States v. Grassrope, 342 F.3d 866, 871 (8th Cir. 2003) cert. denied Elder v. United States, 537 U.S. 1140 (2003).

And really finally of course, here’s how not to make an objection – and get removed from court in hand-cuffs in front of the members and your client.

Appellant Maurice Elder ("Elder") seeks review of his conviction and sentence on cocaine possession and distribution charges. With respect to his conviction, Elder argues that he was denied due process of law when the district court had lead defense counsel removed from the courtroom, especially given the nature of that removal [in handcuffs]. A careful examination of the record, however, reveals a persistent pattern of surly, disruptive and contemptuous behavior by a defense counsel with a history of antagonizing judges.  Over much of the trial and immediately prior to her removal, counsel was repeatedly warned about yelling at the court and making sarcastic remarks.

United States v. Elder, 300 F.3d 996, 0–2 (9th Cir. 2002).

The dissenting judge had this to say:

This case is remarkable for at least three reasons, and for these reasons, I must dissent.

First, Elder’s trial counsel x was physically brutalized by the District Judge in front of the jury for correctly insisting that the Judge was mistaken about a prior ruling he had issued in her client’s favor.

Second, in explaining his treatment of x, the District Judge stated before the jury that she deserved what she got because she was "trashing the United States." In other words, she was unpatriotic.

Third, the majority cites to a California state court decision as support that defense counsel is a bad person, with a history of "surly, disruptive, and contemptuous behavior." Majority op. at 8281. In doing so, the majority ignores the fact that the criticism of defense counsel throughout her career may be caused in part by anti-feminism within the legal community.  In particular, some in the legal profession may be more offended by aggressive and combative litigation tactics from a female attorney than from her male counterparts.

United States v. Elder, 300 F.3d 996 (9th Cir. 2002).

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5 responses to “I object – some reminders”

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  3. Keith Hodges (Army Defense Service) says:

    Great review on when and how to object. Unfortunately, the 15 Sep 2009 Army Trial Judiciary Rules of Court is pasted below. Gee, how does a counsel let the MJ know the basis of the objection before the MJ rules and the MJ doesn’t ask for the basis?

    RULE 19: Objections. When counsel initially enters an objection, he or she will state only “Objection, Your Honor.” Counsel will not provide a specific basis for it unless asked by the judge. Opposing counsel will immediately cease examination and await the judge’s
    resolution of the objection. Before making any argument on an objection, counsel will request permission from the judge. Any argument will be direct and succinct. Motions in limine are encouraged regarding evidentiary issues counsel believe are likely to be contested at trial. After the judge rules on an objection or makes any other ruling, counsel shall not make further argument or comment, except with the express permission of the judge.

    After a ruling, counsel may, however, make offers of proof to preserve an objection or issue for appellate purposes or request reconsideration. In trials with members, such offers of proof should normally be made in an Art. 39(a) session. See MRE 103(c).

  4. Phil Cave says:


    Thanks for this reference!

    Seems to me this Rule can be inconsistent or ambiguous under Mil. R. Evid. 103. But by the same token it could be a gift to defense counsel. CAAF follows RI in holding that an objection not raised is waived absent plain error or a reading of the context. Seems that all the defense need do now is object to preserve an objection, and then on appeal he can raise any objection he likes.

    I’m not averse to limiting how an objection is made for the reasons noted about a tendency to speaking objections. However, it seems to me that — and this is how I generally do it — “I object, 801, 602, 403” is the better path. The MJ then can focus on the objection without having the members tainted in some fashion.

    Of course the rule also presumes the MJ and counsel are tracking on the basis of the objection.


  5. Keep posting stuff like this i really like it

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