Effective Use of Evidentiary Objections: One Judge's Perspective

• Jurisdiction: Colorado,United States
• Citation: Vol. 33 No. 4 Pg. 45
• Pages: 45
• Publication year: 2004

33 Colo.Law. 45 Colorado Lawyer 2004.

2004, April, Pg. 45. Effective Use of Evidentiary Objections: One Judge's Perspective

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Vol. 33, No. 4, Pg. 45

The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page 45]

Departments
Judges' Corner
Effective Use of Evidentiary Objections: One Judge's Perspective
by Thomas L. Kennedy

Judge Kennedy is a District Court Judge for the Fourth Judicial District in Colorado Springs and currently presides over both criminal and civil trials--(719) 227-5192

After presiding over dozens of jury trials in the past four and one-half years, I have come to the conclusion that many lawyers need to develop a better understanding of the effective use of evidentiary objections. Lawyers frequently make meaningless objections; fail to object when appropriate object at the wrong time and often for the wrong reason; and fail to take advantage of available pre-trial procedures such as motions in limine, to attempt to exclude harmful or prejudicial evidence from the trial. Although it would appear that these mistakes would be limited to the newest members of the Bar, in my experience, that is not the case.

This article sets out a few of my own observations. It is hoped that practitioners can use these suggestions to improve litigation skills and more effectively represent clients in the courtroom. Also, many scholarly works on the rules of evidence have been published, which all lawyers should consult when necessary.1

Failure to Object

Trial courts have broad discretion to rule on evidentiary matters. On appellate review, the standard is generally an "abuse of discretion"; rarely will a court's ruling on evidentiary objections be the basis for reversal. However, failure to object at a critical time could very well affect the outcome of the case and, in the context of criminal cases, could certainly bring about a claim for ineffective assistance of counsel. If nothing more, a lawyer who can effectively state or respond to evidentiary objections creates a favorable impression in the eyes of the jury, while a lawyer who bungles evidentiary matters may lose credibility with a jury.

Failure to Anticipate
Evidentiary Problems

As a preliminary matter, I believe one of the most common mistakes lawyers make is in failing to anticipate evidentiary problems during case preparation. Regardless of the type of case, in most instances...