§ 6.02 OBJECTIONS: RULE 103(A)(1)

• Jurisdiction: United States

§ 6.02. OBJECTIONS: RULE 103(a)(1)

Under Rule 103(a)(1), an objection or motion to strike must be made to preserve a challenge to the admissibility of evidence on appeal.² This rule is subject to the plain error doctrine.³ The objection must be timely and specific as discussed below. Another consequence of failing to object is that the admitted evidence becomes part of the trial record and may be considered by (1) the jury in its deliberations, (2) the trial court in ruling on motions (i.e., directed verdicts), and (3) a reviewing court determining the sufficiency of the evidence.⁴ For example, evidence that could have been excluded as hearsay may be considered for whatever probative value it may possess in the absence of an objection.

Rationale. The objection requirement serves two purposes. First, it alerts the trial judge to the nature of the claim of error, thus facilitating a ruling on the objection.⁵ Under the adversary system, counsel are presumed to be better acquainted with the facts and issues in the case than is the trial judge, and thus the burden of objecting is cast on the parties through counsel. The judge may not appreciate the irrelevance of an item of evidence when first introduced; counsel should. Second, an objection affords opposing counsel an opportunity to take corrective measures.⁶ In response to an objection, for instance, opposing counsel may be able to rephrase the question in unobjectionable terms or withdraw the question and present unobjectionable evidence through another witness.

[A] Specificity: Grounds

Rule 103 requires specific objections; that is, a statement of the grounds upon which the objection is based must accompany the objection unless the grounds are apparent from the context.⁷ For instance, "objection, hearsay" is a specific objection. In contrast, an objection that is not sufficiently specific is called a general objection. Statements such as "I object," "Objection, inadmissible," and "Objection, incompetent" are general objections. They do not highlight the issue for the trial judge. An objection on the ground that evidence is "incompetent, irrelevant, and immaterial" is also a general objection⁸ because virtually every provision of the Rules of Evidence falls under one of these terms. In one case, a lawyer even objected "on all the grounds ever known or heard of."⁹

All grounds for objection should be specified at the time the objection is made.¹⁰ Generally, a party who has made a specific objection on one ground waives all other grounds and therefore cannot assert those grounds in the appellate court. For example, a party who objects on relevance grounds cannot raise hearsay issues on appeal.¹¹

"Speaking objections." Some trial judges refuse to permit "speaking objections." Because trial counsel do not want to appear as if they are trying to hide something from the jury, counsel often like to object in a way that the jury understands — for example, "objection, your honor, counsel is putting words in the witness's mouth. This is leading."¹² Sometimes counsel go further, making mini-speeches through this technique. If a judge does not permit the reasons for objections to be given, counsel still must get the specific grounds for objection into the record at the first opportunity.¹³

"Apparent from the record." Under Rule 103(a), stating the specific ground for an objection is not necessary if the ground is apparent from the context. However, the risk of relying on an appellate court to find that the ground was obvious from the context is substantial. Trial counsel can never assume that an appellate court will later find that the grounds are "apparent."

[B] Specificity: Parts of Documents

Although not explicitly stated in Rule 103, the specificity requirement further demands that counsel indicate which particular portion of evidence is objectionable.¹⁴ This aspect of the specificity requirement is rarely important with testimonial evidence because counsel is required to object immediately, but it arises frequently with documentary evidence — for example, only one page of a ten-page document may contain inadmissible hearsay.¹⁵

[C] "Continuing" or "Running" Objections

Many jurisdictions recognize "continuing objections," which remove the need to object repeatedly on the same issue after an adverse ruling on an earlier objection.¹⁶ If the trial judge, for instance, overrules an objection to fingerprint testimony from one expert, it often seems both a waste of time and unnecessarily disruptive to make the same objection to a second fingerprint expert.

Caution, however, demands periodic statements on the record that the prior objection still pertains; otherwise, counsel runs the risk that an appellate court may construe a continuing failure to object as a waiver.¹⁷ Moreover, continuing objections do not work when resolution of the issue depends on the specific context of each part of the testimony. As one court observed: "At times, a continuing objection is enough to preserve error. However, it was not sufficient in this case. The existence of the marital privilege turns on the specific circumstances surrounding each allegedly privileged communication, e.g., whether a third party was present. Thus, appellant had to object specifically so the circumstances could be determined."¹⁸

[D] Timeliness of Objections

Rule 103(a)(1) requires that objections be timely. The rationale for this rule is that counsel should not be permitted to wait and see whether the answer is favorable before raising an objection.¹⁹ If a question is improper, an objection should be made with reasonable promptness — perhaps, the term "immediately" is a more accurate description of this requirement.²⁰ Indeed, this requirement is frequently called the "contemporaneous objection rule." With documentary evidence, the objection should be made when the document is first mentioned at trial or proffered as an exhibit.²¹

[1] Motions to Strike

In some instances, a witness may answer before counsel can object, or a question's tendency to elicit an objectionable response may not become apparent until the response is given. For example, if the prosecutor asks a witness in a homicide prosecution whether that witness knows the accused (a typical preliminary question) and the witness replies: "Sure, I know that...