Objections to Evidence; Motions for Mistrial; Proffers; Rulings on Evidentiary Questions

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 745-756

745

CHAPTER 34

OBJECTIONS TO

EVIDENCE; MOTIONS

FOR MISTRIAL;

PROFFERS; RULINGS

ON EVIDENTIARY

QUESTIONS

§ 34.01 Objections and Motions to Strike;

Making a Record

Except in unusual circumstances, a claim of error in the admission of evidence wil l not

be entertained on a postverdict motion for a new trial or on appeal or in postconvict ion

proceedings unless an objection to the evidence was made and overruled at the time of

its introduction. See, e.g., Wainwright v. Sykes, 433 U.S. 72 (1977).

Accordingly, if counsel wants to preserve a claim of error, s/he should be sure that

the record clearly shows (a) that counsel did object and (b) that the court did rule on

counsel’s objection dispositively and unfavorably. In some jurisdictions it is also neces-

sary for counsel to note a formal exception to the unfavorable ruling.

The trial tr anscript reflects only what the court rep orter hears. Counsel must there-

fore make his or her objections—and obtain the court’s rulings on them— orally and

explicitly. Often, in the heat of the tr ial, the judge will see that counsel is rising to object

and will ru le on the objection before counsel begins to speak . Whether or not counsel

gets to say anyth ing, the court may overrule counsel by a shake of the head or by wav-

ing counsel down or by saying something ambiguous, like “G o on.” Countless appeals

have been lost on account of these rulings. If something of the sort happens, counsel

should say, “If the Court please, I would like to state for the record the grounds of t he

respondent’s objection to this evidence and to have the record reflect that the objection

has been overruled.” Then the grounds of objection should be stated.