Chapter 1 - 1.2 Procedures And Definitions

• Jurisdiction: Virginia

1.2 PROCEDURES AND DEFINITIONS

1.201 Objection Sustained. When the court agrees with the point of law that objecting counsel makes, the objection will be sustained. If an objection is sustained, it may be appropriate, depending on counsel's position, to do one of the following:

A. Motion to Strike and Disregard. When the objection is sustained, counsel may need to make a motion to strike the evidence to ensure that the offending question or answer is not made a part of the evidence. If a jury is the finder of fact, the moving party should also request that the court instruct the jury to disregard the offending question or answer if the court does not do so when ruling on the motion. Because motions to strike may serve only to draw the jury's attention to the offending information, they should be used sparingly unless the harm would be significant.

Motions to strike are appropriate in instances where:

• The question to which an objection has been made contains improper or incorrect statements of fact, etc.;

• The testimony given is nonresponsive to the question that was asked;

• Opposing counsel assured the court that a proper foundation will be laid for testimony that has been the subject of objection, but the proper foundation is not laid;

• The witness answers the question before opposing counsel has an opportunity to make an objection; or

• The question itself is proper, but the witness's answer is objectionable even if responsive to the question.

B. Offer of Proof. An offer of proof, sometimes called a "proffer," allows the party against whom an objection has been sustained to put on the record what the excluded evidence would have been and to make an argument against its exclusion. A proffer must be made to create a record so that the excluded material, as well as counsel's rationale against exclusion, can be reviewed on appeal.⁴⁸ Although preservation of the evidence is the primary goal, it is also possible that the trial court may, on receiving the proffer, reconsider the ruling on the objection.

A proffer may be made in a number of different ways, including:

• By having counsel ask the questions that would have been propounded to the witness and receiving the responses. This is the best and safest way to make a proffer;

• By orally summarizing what the evidence would have been;

• By submitting a written summary of the evidence; or

• By submitting deposition testimony of the witness that counsel seeks to have admitted.

Typically the proffer is made during a break in the proceedings, for example, during a lunch hour or otherwise.

Whether the proffer consists solely of proposed testimony or exhibits, it must be complete, containing all of the proposed testimony or all of the proposed exhibits.⁴⁹ Lack of a proffer may mean that the objection cannot be reviewed because the appellate court cannot know and will not speculate on what the omitted evidence might have been.⁵⁰

If the case is being heard by a jury, the proffer is made out of the jury's presence. A written proffer is an effective way both to make a record and to give the trial judge material to review that may generate reconsideration of the initial ruling.

Even though the objection has been sustained, the attorney who is on the receiving end of an offer of proof should clearly note whatever objections exist to that line of questioning or to the testimony or summary that has been given as part of the proffer.

A similar issue arises where the court has permitted redactions of documents over counsel's objection. To preserve for appellate review an objection to a redaction, counsel must either (i) insert into the record a clean copy of the challenged exhibit, containing the redacted language; or (ii) recite into the record the excised language. This enables the reviewing court to determine whether the exclusion of the redacted material was harmless error.⁵¹

1.202 Exhibit Denied and Returned. In a court of record, if the court denies an exhibit, and the exhibit is returned, counsel must be certain the exhibit stays in the court file with a notation that it was denied.

1.203 Objection Overruled. Even if the court overrules an objection, it may be appropriate for objecting counsel to request a limiting instruction in which the judge would tell the jury that the evidence presented, although admissible, may be considered only for a specific purpose.⁵² Such instructions are of questionable value. A party must ask for a limiting instruction if circumstances require it; otherwise the court's failure to restrict the use of the evidence will not be preserved for appeal.⁵³

1.204 Curative Instructions. Black's Law Dictionary defines a curative instruction as "[a] court's instruction to the jury to disregard something that should not have happened in court, such as an improper outburst, misconduct by a lawyer, or testimony that flouts an order in limine."⁵⁴ If counsel does not agree that the curative instruction will repair the harm done, the objection or motion for a mistrial should be renewed. No challenge can later be brought to the court's action if counsel agrees to the action taken.⁵⁵

1.205 Structural Error. In criminal cases, a structural error in the trial cannot be evaluated using a harmless error analysis and, on direct appeal, requires automatic reversal without any inquiry into harm. Structural error is "a defect affecting the framework within which the trial proceeds rather than simply an error in the trial process itself."⁵⁶ This type of error that affects substantial rights of the defendant can necessarily render the trial fundamentally unfair and require the reversal of a conviction.⁵⁷ Examples include the denial to the right to counsel in criminal cases;⁵⁸ constitutionally deficient instruction on reasonable doubt given to the jury;⁵⁹ or the denial of an impartial trial judge.⁶⁰

1.206 Waiving Objections.

A. Cross-Examination or Presentation of Evidence Where Objection Has Been Overruled. If an objection is overruled, the losing party on that objection may still inquire into that subject matter on rebuttal or as part of cross-examination. Such a line of questioning may, however, waive that party's earlier objection.⁶¹ A distinction should be made between cross-examination and affirmative presentation of evidence on this topic. Before cross-examining, counsel should renew the objection and ask for the court's permission to cross-examine without waiving the objection.⁶² The presentation of evidence is more problematic, but if it is necessary to present evidence on the topic, counsel can proceed in the same manner as described above. When the objecting party elicits evidence of the same character, either during cross-examination of a witness or in rebuttal testimony, a duly made objection is not waived. To constitute such a waiver, the party objecting to the evidence must go further and introduce on its own behalf evidence similar to that which the objection applies.⁶³

Some general rules as to conducting cross-examination or presenting evidence where your objection has been overruled:

• Ask permission of the court to cross-examine or to present evidence without waiving objections;

• The cross-examination needs to be narrowly defined; and

• If presenting

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