OBJECTION! PSYCHOLOGICAL PERSPECTIVES ON JURORS' PERCEPTIONS OF IN-COURT ATTORNEY OBJECTIONS.

• Author: Reed, Krystia

1. INTRODUCTION

   Attorneys are responsible for the important task of objecting to evidence during trial; objections can correct an error immediately, or at least preserve the record for review. (1) However, the decision to object can be a Catch-22 according to many lawyers, with "disastrous consequences" if an important objection is missed or if an objection is made improperly. (2) Many legal professionals fear that objections can harm credibility with the jury--if the objection is sustained, the jury may believe the attorney is trying to hide something; if the objection is overruled, the jury may believe that the attorney is wrong or wasting time. The objection may even lead the jury to pay more attention to the evidence and give it more weight. Thus, trial attorneys are forced to conduct an immediate balancing test weighing the costs and benefits of objecting with those of not objecting.

   Although trial attorneys are frequently required to make speedy decisions about objecting that could potentially make or break their case, social scientists have not provided much guidance to aid lawyers in this difficult choice. However, more general psychological research can be applied to objections to help attorneys make the decision to object (or not). For example, research on inadmissible evidence indicates that objections may draw attention to the subsequent evidence. (3) Moreover, objections may influence attention processes and alter jurors' memory formation. (4)

   Part I of this Article examines the legal basis and understanding of objections. (5) Part II discusses several relevant psychological theories that may explain how objections influence juror perceptions. (6) Specifically, Part II focuses on theories of attention that are relevant to jurors' reactions to objections as well as theories related to attributions jurors may make regarding attorneys (or the parties which they represent) when an objection is made. (7) Part III will conclude with a summary of the research and a discussion of the implications and recommendations for trial attorneys. (8)

2. LEGAL BACKGROUND

   This Part briefly explains the legal background of objections in the trial. Section A briefly examines the role of objections under the Federal Rules of Evidence. (9) Section B describes the process of objecting. (10) Section C discusses the balancing test attorneys must apply instantaneously when deciding whether to object and highlights both the benefits of and costs to objecting. (11)

   1. FEDERAL RULES OF EVIDENCE

      Legally, objections serve the important purpose of enforcing the evidentiary rules and protecting the right of a fair trial. The Federal Rules of Evidence ("FRE"), which guide evidentiary admissibility in federal court, state that their primary purpose is "to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination." (12)

      Objections are the primary way in which an attorney can enforce the evidentiary rules against the other party; when an opposing party violates one of the evidentiary rules, the other attorney can object to the violation. (13) In fact, under the FRE, timely objections are required if the party wants to preserve a challenge to an error in admissibility of evidence in the future--if an attorney does not object when a rule is violated, the party cannot later claim there was an error. (14) Therefore, objections play an important role in enforcing the rules of evidence.

      Although the FRE or state evidentiary laws provide attorneys with rules on when and how they are allowed to object, objections are not automatic. Attorneys decide throughout a trial whether or not to object. In order to understand the factors involved in an attorney's decision to object (or not), it is important to understand the objection process as well as the balancing test attorneys must apply in their decision.

   2. PROCESS OF OBJECTING

      The FRE require timely objections or movements to strike and the attorney must state "the specific ground, unless it was apparent from the context...." (15) However, there are two other important considerations beyond individual differences that drive the process of objecting: the type of objection being made and the timing of the objection.

      1. Type of Objection

         There are a litany of objections permitted under the FRE. For the purposes of this review, the discussion focuses on two primary categories of objections: procedure-based objections and content-based objections.

         Procedural objections revolve around the basic idea that attorney questions should be clear and direct. (16) When questions are not clear or direct the opposing attorney may object. One of the primary rules of the FRE is that "[ijrrelevant evidence is not admissible," thus if a question is aimed at eliciting or if an answer provides irrelevant evidence, an attorney may object. (17) Attorneys may also object to questions that are "confusing," "misleading," or that "wast[e] time." (18) In most instances, attorneys are not permitted to ask their own witnesses leading (yes/no) questions, so if the question is not open-ended, the opposing party may object. (19)

         Additionally, it is possible for an attorney to object to a question or answer for a combination of reasons. For example, asking a multi-part question can create confusion, especially if it is not clear which part of the question the witness is answering. Therefore, the opposing attorney may object to a multi-part question because it is ambiguous, confusing, misleading, or a waste of time. (20)

         Perhaps more concerning for attorneys are objections based on the content meant to be elicited by the questioning. There are many types of inadmissible evidence, primarily driven by the goal of excluding evidence which is more prejudicial than probative. (21) Thus, an attorney may object to evidence, even if it is relevant, if it is potentially more prejudicial than probative. There are several specific types of prejudicial evidence that have been specifically identified as either inadmissible or mostly inadmissible under the FRE.

         One example of mostly inadmissible evidence is hearsay. (22) Hearsay is a statement that was not made "while testifying at the current trial" and is being used to "prove the truth of the matter asserted in the statement." (23) The concern with hearsay is that the probative value is not as high because there is a greater potential for lying when the statement is not made under oath and the jury does not have the opportunity to observe the demeanor of the witness. There are several exceptions to the hearsay rule; however, unless one of the exceptions applies, hearsay evidence should not be allowed. (24)

         Another type of evidence that is not allowed unless an exception applies is character evidence regarding defendants in criminal cases. (25) For example, criminal history is not permitted to prove that a criminal defendant "acted in accordance with the character or trait." (26) Thus, if a prosecutor attempts to bring in criminal history or other character evidence without some exception, such as using the evidence for impeachment, (27) the evidence should not be permitted if the opposing party objects. (28)

      2. Objection Timing

         In addition to the type of objection being made, another important consideration for attorneys is how to time the objection. Specifically, objections must be timely in order to preserve a claim of error for future proceedings. (29) This results in two primary opportunities for attorneys to object to evidence being admitted--before trial or during trial. Objections made after trial usually will be unsuccessful because they are untimely unless there is "plain error affecting a substantial right" which the court is allowed to take notice of "even if the claim of error was not properly preserved." (30) Therefore, objections are often verbal and made instantaneously at trial as soon as a potential evidentiary violation arises. (31) At a minimum, the objection must include a clear statement of the grounds for objecting. (32)

         Alternatively, attorneys may object prior to trial by using a motion in limine, which allow attorneys to block certain prejudicial evidence of which the attorney is aware. (33) However, because motions in limine occur prior to trial, they cannot be used for most procedural objections (e.g., ambiguous, leading, or unclear questions) or for surprise evidence, all of which are in response to specific trial behavior. Nevertheless, motions in limine are extremely useful for some contentbased objections. (34) Since motions in limine do not involve the jury, there is less potential to prejudice the decision maker by virtue of making the objection; the rest of this review will therefore focus on objections made during trial. However, it should be noted that objecting to the admissibility of unwanted evidence prior to trial, out of the presence of the jury, might be the best option for attorneys attempting to balance the need to object with the desire not to frustrate the jury, as long as the method does not upset the judge.

         a. Balancing Test

         Considering objections made during trial must be made nearly instantaneously to be considered timely, attorneys need to be aware of the potential costs and benefits of objecting and quickly balance them before reaching their decision. Attorneys are encouraged to balance the benefits of objecting against the costs to objecting; therefore it is important to understand exactly what the benefits and costs are. (35) In fact, some commentators argue that trial attorneys must strike a delicate balance between objecting and losing at trial or not objecting and losing on appeal. (36)

         b. Benefits of Objecting

         There are several benefits to objecting, the most obvious being the immediate alteration of what evidence is admitted. (37) If the judge sustains an objection, particularly when the...