Evidentiary Objections and Evidence Rulings

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 303-346

EVIDENTIARY

OBJECTIONS, RULINGS

CHAPTER 29

EVIDENTIARY OBJECTIONS

AND EVIDENCE RULINGS

§29:01 New York Trial Notebook 29-2

EVIDENTIARY

OBJECTIONS, RULINGS

I. MAKING OBJECTIONS

A. GENERAL POINTS

§29:01 What Is an Objection?

In general, evidence offered by a party will be

admitted if another party does not object to it. Thus,

an evidentiary objection is not only a suggestion

that evidence should not be admitted, but is a

request for a ruling from the court as to whether

the evidence should be admitted or not. The trier

of fact may not consider evidence unless the court

permits it to be presented to them.

NOTE:

If you know your adversary intends to

offer certain evidence that you believe is

objectionable, consider a motion in limine

to have the matter decided before a jury is

sitting in the box. See Chapter 13.

§29:02 Purpose of Objection

A party objects to an offer of evidence by

another party for at least two reasons:

• To prevent the trier of fact from considering

the evidence.

• To preserve the issue for review in the

event of an adverse ruling. [See CPLR

4017 and §29:07.]

A party must make known to the court

requested actions, or objections to the court’s

actions. Failure to object may restrict review upon

appeal. [CPLR 4017; see CPLR 5501(a)(3), (4).]

However, once the court has ruled on the objection,

formal exceptions are unnecessary. [CPLR 4017.]

Older practice often had lawyers sullenly voicing

the word “exception” after an adverse ruling; if

a lawyer does that today, he or she risks being

admonished by the court.

§29:03 Objecting to Non-Testimonial

Evidence

Non-testimonial evidence, such as documents

or other tangible evidence [see Ch 28], is offered

for admission before being presented to the fact

finder, giving the opposing counsel an opportunity

to raise any objection [Benderson Development

Co., Inc. v. State of New York, 139 AD2d 927,

928, 529 NYS2d 50, 51 (4th Dept 1988) (“it is

fundamental that an adversary must be afforded

the opportunity to examine a document offered

as proof of a material fact”).] In fact, if opposing

counsel is silent, the court will often ask, “Any

objection, counsel?” and then note that “Exhibit

‘__’ is admitted without objection.”

IN PRACTICE:

Rather than remaining silent when the

other side offers evidence, the better practice

is to say “No objection, your honor.” The

jury will have the impression that your goal

is to move the trial along and not nit-pick

and you are saving your objections for battles

that really matter. Some counsel use a tone of

voice calculated to convey, very subtly, the

message that the evidence is not important,

perhaps not even worthy of objection. It is

easy to step over the line; a “no objection”

in an off-handed manner is far preferable to

the same words voiced in tones dripping with

sarcasm.

§29:04 Objecting to Testimony

In contrast to tangible evidence, testimonial

evidence demands a much quicker reflex on the

part of counsel. Once a witness is sworn, the

jury may consider all testimony by the witness

unless stricken [see §29:190 ff]. Accordingly,

counsel must be extremely alert whenever opposing

counsel is questioning a witness. Do not hesitate

to interrupt with an objection before the witness

can answer or finish an answer. If the question is

clearly inappropriate, object before the question is

completed.

§29:05 Tactical Objections

Depending on the situation, there may also be

tactical reasons for objecting, for example, to break

the flow of your adversary’s case.

CAUTION: Do Not Object Without

Legitimate Reason

You should not object to break the flow of

your adversary’s case unless there is otherwise

a legitimate reason for objecting. Making

29-3 Evidentiary Objections and Evidence Rulings §29:07

EVIDENTIARY

OBJECTIONS, RULINGS

frivolous objections simply to muddle the

proceedings will quickly gain you the enmity

of the judge and the jury will think you

have something to hide. Whatever trust you

have earned with the jury will be dissipated.

Objections that the court repeatedly overrules

may raise doubts about your competence, as

well as give the jury the impression that you

are simply wasting time. You should object

only if you believe that the jury should not

consider the information about to be conveyed

to it and there is at least some colorable basis

for the objection. It is also not appropriate to

object just to give the witness more time to

consider his or her answer or to take his or

her cue from the objection. This practice will

become obvious and will probably result in the

judge calling attention to it and admonishing

counsel.

Many times your opponent will ask a question

that may be technically objectionable, but relatively

innocuous. When this happens, ask yourself if

it is worth objecting to. Most jurors do not like

objections. They believe they should hear whatever

there is to hear and sort it out for themselves.

Judges become impatient with counsel who make

objections based on technicalities, sometimes

overruling them with a curt, “I’ll allow it, counsel.”

For example, judges will usually allow counsel to

lead a witness on direct to get through preliminary

matters, or if the witness is having understandable

difficulty with the proceedings, e.g., a very young

or infirm witness. [See, e.g., Moebus v. Herrmann,

108 NY 349, 15 NE 415 (1888) (how far leading

questions elicited conscious experience of not-

quite-7-year-old was for the jury); In re William

T., 182 AD2d 766, 582 NYS2d 759 (2d Dept

1992) (court acted within its discretion in allowing

leading questions to 13-year-old reluctant victim;

conviction affirmed).] If the judge consistently

permits the inquiry, the jury may resent your

interference with the flow of the trial. If the trial is

lengthy the jury may hold you responsible for the

delay.

§29:06 Keep Objections to Minimum

As a general rule, objections to testimony

should be kept to a minimum. Some objections will

result in the jury hearing the evidence anyway.

EXAMPLE:

Q. (on direct) It was hot that day, wasn’t it?

(Objection leading, sustained)

Q. What was the temperature like that day?

A. It was hot.

Depending on the circumstances, it may

or may not be worthwhile to object to such

questions. If the information being imparted is

of little importance, the jury may think you

are simply being picayune when you object.

Also, some jurors think that an attorney objects

only when something important has been or is

about to be said. So making an unnecessary

objection could have a negative effect, even

if it is sustained. However, if it is clear to you

that the witness is being coached, continued

objections to leading questions may help the

jury appreciate that your adversary is simply

putting words in his or her own witness’s

mouth. You may then state that you have

been patient with leading questions up to

now, but you must insist that the witness,

rather than counsel, do the testifying.

§29:07 Objection Required to

Preserve Error for Review

The requirement for objecting in CPLR 4017

has been crystallized in the case law. “When a

timely objection is not made, the testimony offered

is presumed to have been unobjectionable and any

alleged error considered waived.” [Horton v. Smith,

51 NY2d 798, 799, 412 NE2d 1318, 1319, 433

NYS2d 92, 93 (1980); also Matter of Giacalone,

143 AD2d 749, 533 NYS2d 457 (2d Dept 1988).]

“Failure to timely object to an error when the error,

if one exists, could be cured, is a waiver of that

objection.” [Sanchez v. Kato, Inc., 115 AD2d 646,

646, 496 NYS2d 482, 483 (2d Dept 1985) (failure

to object to unified trial until after evidence on

both liability and damages had been heard); see

also Marine Midland Bank v. John E. Russo

Produce Co., Inc., 50 NY2d 31, 41, 405 NE2d

205, 210, 427 NYS2d 961, 966 (1980) (plaintiff

deemed to have waived objection to jury’s failure

to return a general verdict for “failing to press

them when it would have been possible to prevent

or correct the ‘error’”); Nolan v. Nolan, 107 AD2d