Objections (Ch.5)

Question 1

Who is responsible for challenging evidence or getting it in?

Answer 1

Lawyer (NOT judges)

Question 2

two ways to object

Answer 2

1. by objection

2. by a motion to strike

Question 3

objection

Answer 3

occurs before the evidence emerges fully

Question 4

motion to strike

Answer 4

occurs after the evidence has entered the record

Question 5

Requirements for objections

Answer 5

1. has to be timely
2. need to state the specific ground for any objection
   * sometimes it is apparent from the context

Question 6

timely (for objections)

Answer 6

must object to the evidence as soon as the ground for the object is known or reasonably should be known

Question 7

Who offers proof?

Answer 7

The one offering the evidence

Question 8

offer of proof

Answer 8

how you defend the evidence - show judge what the evidence entails
*need to offer proof to preserve objection for appeal

Question 9

What do you do if a judge defers a motion in limine?

Answer 9

You need to renew objections and offer proof at trial

Question 10

“Sustained”

Answer 10

judge agrees with an evidentiary objection - excludes the evidence

Question 11

“Overruled”

Answer 11

judge disagrees with the objection - admits the evidence

Question 12

Do limiting instructions work?

Answer 12

No, most people are skeptical about their effectiveness. Some people believe they can be harmful - bring attention to what the evidence CANNOT be used for.

Question 13

What is the appellate standard of review for evidentiary issues?

Answer 13

abuse of discretion

Question 14

Why is abuse of discretion the standard of review?

Answer 14

Trial judges more familiar w/evidence - defer to trial judge

Question 15

When is a “substantial right” of one of the parties affected?

Answer 15

If there is a reasonable probability that if the judge had made the correct ruling, the outcome of the case would have been different

Question 16

What is de novo?

Answer 16

a standard of review

Question 17

When do judges review de novo?

Answer 17

When a trial judge misinterprets a FRE or applies the wrong legal standard at trial
* RARE

Question 18

What happens when a party fails to preserve an objection at trial?

Answer 18

Court will only reverse if there was a plain error

Question 19

plain error

Answer 19

• a standard of review
• the error is
  1. clear and and obvioius under current law,
  2. affects a party’s susbstantial rights and
  3. would seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected

Question 20

Can a jury hear evidentiary disputes?

Answer 20

the process should shield the jury

Question 21

Error: judge admitted the evidence you want kept out

Answer 21

You must:

1. Preserve the claim
   a. Object or move to strike
   b. Do it in a timely manner
   c. Be specific about the reason (unless it is apparent from context)
2. AND show the mistake affected a substantial right

Question 22

Do you need to list all the grounds for objecting?

Answer 22

Yes! List them all

Question 23

Error: judge excluded the evidence you want in

Answer 23

1. preserve???
2. show the mistake affected a substantial right and
3. offer proof

Question 24

Ohler v. United States

Answer 24

a defendant who preemptively raises a prior conviction during direct examination waives the right to challenge the judge’s pretrial ruling on appeal

Question 25

How do you get evidentiary rulings reviewed?

Answer 25

1. appeal the judgment

2. interlocutory appeal (very unlikely)

Question 26

abuse of discretion

Answer 26

the judge failed to exercise discretion in the mistaken belief that they was bound by a rule

Question 27

types of error

Answer 27

1. reversible - probably did affect judgment
2. harmless - probably did not affect judgment
3. constitutional - ruling affected a constitutional right (lawyer comments on defendant not testifying)
   - appellate court doesn’t have to reverse if the prosecution shows beyond a reasonable doubt that the error was harmless
4. Plain error - warrants relief on appeal even though the appellant did not preserve the question

Question 28

Chapman v. California

Answer 28

I: lawyer commented on defendant not testifying
R: appellate court doesn’t have to reverse if the prosecution shows beyond a reasonable doubt that the error was harmless

Question 29

interlocutory appeal

Answer 29

pause trial - go to appellate court - get answer, go back to trial court

Question 30

invite error

Answer 30

preemptively do something

Question 31

opening the door

Answer 31

excludable/irrelevant evidence that becomes relevant because introduced the matter