Objections & related procedures

AuthorJustice Gerald Lebovits
§1:10 Applicable Rules
§1:20 Presentation and Admissibility of Evidence
A. Principles
§1:30 Purpose
§1:40 Admission of Improper Evidence
§1:50 Preserving Record for Appeal
§1:60 Fundamental Error
§1:70 Harmless Error in Civil Cases
§1:80 Harmless Error in Criminal Cases
§1:90 Bases for Objecting
B. Procedure
1. General Points
§1:100 Pretrial Preparation
§1:110 When Not to Object
§1:120 Objecting in Limine
§1:130 Objecting at Trial
§1:140 Objecting in Time
§1:150 Stating the Basis
2. Specif‌ic Types of Objections
§1:160 Objecting in Bench Trials
§1:170 Objecting to Question or Comment
§1:180 Objecting to Questions by Court
§1:190 Objecting to Documents
§1:200 Objecting to Opening or Closing Statement
§1:210 Objecting to Jury Charge
§1:220 Continuing Objections
3. Actions After Objection
§1:230 Taking an Exception
§1:240 Objection Sustained Against You
A. Motions in Limine
§1:250 Purpose
§1:260 Advantages and Disadvantages
§1:270 In Civil Cases
New York Objections 1-2
§1:280 In Criminal Cases
§1:290 Procedure
§1:300 Ruling on Motion
§1:305 Appeal
B. Offers of Proof
§1:310 Def‌inition and Purpose
§1:320 Procedure
§1:330 Opposing an Offer
C. Motions to Strike
§1:340 Def‌inition and Purpose
§1:350 When to Move to Strike
D. Curative and Limiting Instructions
§1:360 Def‌inition and Purpose
§1:370 Sample Curative Instructions
§1:380 Limiting Instructions
E. Motions for Mistrial
§1:390 Def‌inition and Purpose
§1:400 When to Move for Mistrial
1-3 Objections & Related Procedures §1:20
§1:10 Applicable Rules
In trying a case, you must follow the rules of procedure and evidence [CPLR Articles 40-45], the rules of court
[22 NYCRR 200.1 et seq.], and the rules of the particular trial courts themselves. You must also obey the state and
federal constitutions and comport yourself properly. 22 NYCRR §1200.00 (Rules of Professional Conduct); NY
Ct. Rules §§604.1, 700.2 et seq. (Rules of Appellate Divisions). For attorney conduct, see Ch. 18.
Trial court judges are also required to follow procedural and evidentiary rules, obey the state and federal con-
stitutions, and act appropriately on and o the bench. NY Ct. Rules §100.3; 22 NYCRR §§100.3(B), 700.2. For
judicial conduct, see Ch. 17.
§1:20 Presentation and Admissibility of Evidence
ere are four categories of evidence:
Testimonial. See Chs. 14, 15, & 16.
Documentary. See Ch. 11.
Real. See Ch. 9.
Demonstrative. See Ch. 13.
Generally, statutes, court rules, and custom provide a wide degree of latitude, allowing parties to present at
trial whatever evidence is relevant and probative to establishing their cases.
After a party presents direct evidence through a witness, the opposing party has the right to cross-examine
the witness on any disputed fact. Friedel v. Bd. of Regents of Univ. of the State of N.Y., 296 N.Y. 347, 73 N.E.2d 545
(1947); Hill v. Arnold, 226 A.D.2d 232, 640 N.Y.S.2d 892 (1st Dept. 1996) (cross-examination of adverse witness
is matter of right in every trial of disputed issue of fact). Cross-examination is designed to test the reliability and
veracity of testimony given on direct examination. Davis v. Alaska, 415 U.S.308, 94 S. Ct.1105, 39 L.Ed.2d 347
(1974); Feblot v. New York Times Co., 32 N.Y.2d 486, 346 N.Y.S.2d 256 (1973); Fusco v. Hobbes, 16 A.D.3d 1031,
791 N.Y.S.2d 790 (4th Dept. 2005).
As a general rule, non-testimonial evidence is authenticated when its proponent presents evidence sucient
to support a nding (not conclusively establish) that the item is what the proponent claims it to be. D M.
E  G W, N Y E:  C M 499-500 (2018); People
v. McGee, 49 N.Y.2d 48, 424 N.Y.S.2d 157 (1979). e jury may ultimately reject the authenticity of the evidence
and decline to believe the foundational witness’s testimony. D M. E  G W, N
Y E:  C M 500 (2018). Any person who has rst-hand knowledge that a matter
is what its proponent claims may establish the foundation. D M. E  G W, N
Y E:  C M 500 (2018). For example, a witness may need to establish a chain
of custody for evidence to be authenticated. D M. E  G W, N Y E:
 C M 500 (2018).
Normally, the only limit on the evidence a party may introduce comes as a result of another party ’s objection
to admitting that evidence. See People v. Mezon, 80 N.Y.2d 155, 603 N.E.2d 943, 589 N.Y.S.2d 838 (1992) (parties
to litigation may adopt their own rules by simple expedient of failing to object to evidence); Andresen v. Kirschner,
297 A.D.2d 235, 746 N.Y.S.2d 258 (1st Dept. 2002) (since there was no objection to the evidence when it was
introduced, it was erroneous to grant a new trial on the ground that settlement evidence had been admitted); CPLR
4017 (failure to object as prescribed in CPLR 4017 and 4110-b may restrict review on appeal under CPLR 5501).
Objections may be based on one or more of a variety of grounds. For common bases of objection, see §1:150; for
general procedure for objecting, see §1:130.
Once an objection is raised, the judge will either sustain it (ruling the evidence inadmissible) or overrule it
(admitting the evidence). For tactics after an objection has been sustained or overruled, see §§1:230-1:240.
For specic strategies applicable to presenting evidence in matrimonial trials, where unusual evidentiary issues
frequently arise, see Joel R. Brandes, New York Matrimonial Trial Handbook (2017).

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