By John L. Conlon
- Key Factors Affecting Trial Strategy
- Techniques for Advancing Your Strategy
- Sample Plaintiff’s Trial Strategy
- Sample Defendant’s Trial Strategy
The first decision to be made when confronted in a jury trial with a proffer of evidence that should be excluded as inadmissible hearsay is whether you should object to the evidence. There may be very good strategic reasons for not objecting. As observed in United States v. Moon, 512 F3d 359, 361 (7th Cir. 2008):
Hearsay usually is weaker than live testimony, and defendants may prefer the hearsay version rather than making an objection that would compel the prosecution to produce a stronger witness. If a confrontation-clause objection had been made and granted in this case, for example, the result would have been the appearance of Olson [the individual who conducted the tests] on the stand, and then defendants would have been worse off than they were with DeFrancesco—for defense counsel could undermine DeFrancesco’s testimony by reminding the jury that he had not done any of the work and that flaws in Olson’s procedures may have been omitted from the lab notes.
Also, in making an objection on a ground that can readily be remedied by your opponent, you may only give greater prominence to evidence that strategically should be downplayed.
Upon reaching a decision to object, you should make a proper objection.
The purpose of requiring a contemporaneous objection at trial is to ensure the trial judge has an opportunity to consider and rule on the admissibility of the proffered evidence. United States v. Vargas, 471 F3d 255, 262 (1st Cir. 2006); United States v. Price, 458 F3d 202, 2006 (3d Cir. 2006), cert. den., 127 S Ct 1014 (2007). The Rules do not require that an objection be presented with a pinpoint citation to the Rules or reference to a relevant precedent. United States v. David, 96 F3d 1477, 1480 (D.C. Cir. 1996); United States v. Whitaker, 127 F3d 595, 601 (7th Cir. 1997). Nevertheless, a good objection must state specific grounds on which is based. United States v. Spiller, 261 F3d 683, 689 (7th Cir. 2001); United States v. Stover, 329 F3d 859, 868 (D.C. Cir. 2003), cert. den., 541 US 1018 (2004). Mere general objections will not suffice. United States v.Swan, 486 F3d 260, 264 (7th Cir. 2007) (objection “hearsay” not sufficient to notify court of claim that speaker was not an agent of defendant); United States v. Moore, 923 F2d 910, 915 (1st Cir. 1991) (objection stated as “Foundation” not sufficient to constitute objection to computer records as not being reliable);Hollywood Fantasy Corp. v. Gabor, 151 F3d 203, 211 (5th Cir. 1998) (objection “no foundation” not sufficient that question called for expert opinion from an unqualified witness).
The requirement of specificity for objections requires more than a reference to a general area. See, e.g., Desai v. Hersh, 954 F2d 1408, 1412 (7th Cir.), cert. den., 121 L Ed 2d 133 (1992) (pretrial motion to preclude testimony because of “fairness, equity and applicable law” not sufficiently specific to draw trial judge’s attention to balancing of probative value versus unfair prejudice under Rule 403); United States v. Arbolaez, 450 F3d 1283, 1291 n 8 (11th Cir. 2006) (“A hearsay objection to testimony at trial, standing alone, does not preserve a constitutional challenge under the Confrontation Clause for appeal.”); Anderson v. Siemens Corp., 335 F3d 466, 471 (5th Cir. 2003) (point is not preserved for appeal where party objects to evidence on hearsay grounds by only “generically” stating that relevant hearsay objection does not apply). As the United States Court of Appeals for the District of Columbia Circuit observed in United States v. David, 96 F3d 1477, 1481 (D.C. Cir. 1996), cert. den., 117 S Ct 1003 (1997):
This is a very intricate branch of the law of evidence, and counsel will often have to take extra care in explaining the basis of an objection that raises these subtle issues, in order sufficiently to alert the judge to the nature of the evidentiary problem asserted.
Thus, an objection that proffered evidence constitutes hearsay, without more detail, may not be sufficiently specific to preserve the issue for review. If, for example, opposing counsel proffers business records, the objection should focus on which requirements of Rule 803(6) have not been met. United States v. Willis, 482 F2d 1034, 1040 (8th Cir. 1973). Similarly, a bare-bones citation to the Rule concerning co-conspirator statements was not sufficient to bring objection that proffered statement was not “in furtherance” of the alleged conspiracy before the court.United States v. Burton, 126 F3d 666, 673 n.8 (5th Cir. 1997).
Whether the court of appeals will consider on appeal grounds not stated in the trial court depends to a significant extent on which party seeks to argue the new grounds. Where the trial court denied the objection, the appellant can only argue the grounds stated in the objection, unless the appellate court excuses the timely objection requirement. United States v. Whitaker, 127 F3d 595, 600 (7th Cir. 1997) (“a specific objection made on the wrong grounds and overruled precludes a party from raising a specific objection on other, tenable grounds on appeal”). However, on appeal the party that prevailed on the issue in the trial court may assert new grounds in support of the correctness of the ruling. See United States v. Barone, 114 F3d 1284, 1296 (1st Cir. 1997) (“we may affirm the district court’s evidentiary rulings on any ground apparent from the record on appeal”; Gilbrook v. City of Westminster, 177 F3d 839, 859 (9th Cir. 1999) (although trial court admitted statements under co-conspirator exception, can affirm because they constituted admission of party opponent); United States v. Davis, 181 F3d 147, 149 (D.C. Cir. 1999) (although trial court admitted document as a public record, appellate court may affirm admission as a statement of identification).
While most laypersons have heard the term hearsay and know that it is somehow not the best evidence, they do not have a full appreciation of why hearsay is deficient. An objection to a proffered report that it contains hearsay is not as effective with the jury as an objection to the report because it contains statements of individuals who will not be witnesses who we can cross-examine.
Sometimes evidentiary disputes are resolved in side-bar conferences without a court reporter recording the argument, and the court proceeds with the trial on making its ruling. Obviously, whatever objections counsel had to the admitted evidence are lost by not having them recorded either during the conference or at a convenient break in the trial. United States v. Reed, 227 F3d 763, 769 n.5 (7th Cir. 2000) (“The side-bar conference was held off the record. Therefore, if defense counsel did object, this court would have no way of knowing it.”). United States v. Tannehill, 49 F3d 1049, 1057 n.10 (5th Cir.), cert. den., 116 S Ct 167 (1995).
On appeal, general objections intended to cover a whole line of questioning will not necessarily be treated that way, unless the trial judge expressly accepts that approach to keep counsel from popping up with an objection after each item of testimony. Accordingly, when a judge takes an item-by-item approach to ruling on a witness’s testimony, seeking to distinguish between the witness’s personal observations and matters the witness “knew” only because he or she had been told by someone else, adopt a similar approach and object to each inadmissible statement. United States v. Roach, 164 F3d 403, 410 (8th Cir. 1998), cert. den., 120 S Ct 117 (1999) (“A standing objection may be appropriate to cover the same recurring issue, but it can not protect a party where there are distinct foundation questions involved. In such instances, an objecting party must alert the court to the particular points on which an objection is based.”).
Sometimes the offering party overcomes a valid objection by representing that it offers the evidence only for some limited purpose. Ferguson v. United States, 484 F3d 1068, 1074 (8th Cir. 2007). If the judge decides to conditionally admit evidence on opposing counsel’s representation that it is being offered for some purpose other than its truth, request that the court give a limiting instruction to the jury at the time of the admission of the evidence. Ev. Rule 105; Maday v. Public Libraries of Saginaw, 480 F3d 815, 821 (6th Cir. 2007) (when statement is offered for limited purpose, court should instruct jury on its limited use). A jury instruction later in the trial on the limited purpose of the evidence may have little effect on removing the impermissible effects of the evidence from the jurors’ minds.
The Circuit pattern jury instructions and jury instruction manuals rarely have limiting instructions. Impromptu limiting instructions by judges are sometimes so brief and weak that they do not truly inform the jurors of the limited purpose for which they may use the evidence. If the evidence and the proposed limitation are foreseeable, have a limiting instruction ready that will properly caution the jury about the use of the evidence.If opposing counsel does not meet the condition set for admission, move to have the court strike the evidence and instruct the jury to disregard it.
You must ask the court to strike the evidence and for a limiting instruction to the jury to disregard it. In the absence of a request, the court is not required to give a limiting instruction. United States v. Edwards, 388 F3d 896, 902 (D.C. Cir. 2004); United States v. Akinrinade, l61 F3d 1279, 1284 (7th Cir.), cert. den., 116 S.Ct. 541 (1995); United States v. Locklear, 24 F3d 641, 642 n.2 (4th Cir.), cert. den., 130 L Ed 2d 195 (1994). If the trial court does not give an appropriate limiting instruction, the appellate court may conclude that the jury considered the evidence for an improper purpose. See, e.g., American Eagle Insurance Co. v. Thompson, 85 F3d 327, 332 n.5 (8th Cir. 1996).
To introduce documentary evidence and have the court admit it under an exception to the hearsay rule, counsel will frequently lay the foundation through the testimony of the custodian of the documents. Foundation testimony from document custodians is rarely exciting for a jury. Frequently, counsel seeking admission of the evidence will obtain short, conclusory answers from the custodian in an effort to get to something interesting for the jury. Paolitto v. John Brown E&C, Inc., 151 F3d 60, 64 (2d Cir. 1998). Under such circumstances, the judge could not be faulted for overruling an objection. However, if you believe that a more thorough examination would disclose that some of the requirements for the particular exception are not present, consider requesting an opportunity to question the witness before the judge rules on the evidence’s admissibility. Waiting for cross-examination is usually too late; the jury will have already received the evidence and the judge will be loathe to change the earlier ruling, treating the effective points made on cross-examination merely as going to the weight rather than the admissibility of the evidence.
John L. Conlon is a recently retired principal in the firm of Schwartz Cooper Chartered, Chicago, Illinois. He was involved exclusively in civil and criminal litigation during the forty four years he was in practice.
Upon his graduation from Georgetown University Law Center, he was an Assistant State’s Attorney of Cook County, Illinois, and then an Assistant United States Attorney in Chicago. Mr. Conlon thereafter entered private practice, handling a broad spectrum of litigation matters, including antitrust, banking practices, commercial disputes, director and officer liability arising from failed financial institutions, accountant, and attorney malpractice, discrimination claims, product liability, federal and state taxation, environmental claims, and fraud charges.
Mr. Conlon is a fellow of the American College of Trial Lawyers. His publication activities include: participation in the Task Force of the American Bar Association’s Antitrust Section, which drafted Sample Jury Instructions in Civil Antitrust Cases, published by the ABA; contributions to ABA publications concerning grand jury investigations and the trial of criminal antitrust cases; and contributions to Julian O. Von Kalinowski’s multi-volume treatise Antitrust Counseling and Litigation Techniques. He has been a speaker on a number of programs relating to the FDIC and claims against directors, officers, accountants and attorneys.