TRIAL EVIDENCE: MAKING AND MEETING OBJECTIONS

TRIAL EVIDENCE: MAKING AND MEETING OBJECTIONS By: EDWARD A. MALLETT MALLETT GUIBERSON SAPER, L.L.P. 600 Travis Street, Suite 1900 Houston, TX 77002 713-236-1900 telephone 713-228-0321 facsimile edward@mgscounsel.com KEY WEST LEGAL SEMINAR DECEMBER 1-3, 2003 KEY WEST, FLORIDA - 1

TABLE OF CONTENTS I. THINK ABOUT THE JURY... 3 II. OBJECT FOR A REASON... 3 III. KNOW HOW TO OBJECT AND ANSWER... 6 IV. USE THE RULES OF EVIDENCE... 9 V. CONCLUSION... 16-2

I. THINK ABOUT THE JURY Working to Reform Marijuana Laws A. THE JURORS REMEMBER AND INTERPRET EVERYTHING THEY SEE AND HEAR. B. JURORS MIGHT OBEY CURATIVE AND LIMITING INSTRUCTIONS (RULE 105) WITH THEIR HEADS BUT NOT THEIR HEARTS. ("You will disregard the Defendant s criminal history in deciding whether he did it...(again). ) C. LIMIT WHAT THE JURY HEARS. 1. Rule 103 (C) Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests. 2. Rule 104 (C) In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury II. OBJECT FOR A REASON A. A TRIAL IS NOT AN EVIDENCE TEST. B. BUT, IT S HARD TO WIN ON APPEAL WITHOUT OBJECTIONS 1. Generally, there is a distinction between waiver and forfeiture. a. Waiver is an intentional, tactical, or strategic decision not to object. b. Forfeiture is a failure to object. 2. There must be an objection, or there must be Plain Error for an evidentiary issue to be raised on appeal. The leading cases included U.S. v. Olano, 113 S.Ct. 1770 (1993) and U.S. v. Calverly, 37 F.3d 160 (5 th Cir. 1994)(en banc). Omitting citations, Calverly holds at 37 F.3d 162: In U.S. v. Olano, the Supreme Court s most recent pronouncement on plain error, the Court carefully articulated the parameters of that standard. - 3

There first must be error. Error is defined as a deviation from a legal rule in the absence of a valid waiver. Waiver, the intentional relinquishment, or abandonment of a known right, is distinguishable from forfeiture, the failure to make the timely assertion of a right. Whereas the former results in no error, the latter does not extinguish the error. Thus, a forfeited legal error, or unobjected-to, unwaived error, may be reviewable if it qualifies. The second requirement is that the error be plain. Plain is synonymous with clear or obvious, and [a]t a minimum, contemplates an error which was clear under current law at the time of trial. The Fifth Circuit reiterated the Calverly standards in U.S. v. Webster, 162 F.3d 308, 350 (5 th Cir. 1998): To find plain error, we must perceive (1) an error by district court, in that it deviated from a legal rule, (2) that was clear and, at a minimum, obvious under current law at the time of the trial, and (3) the error must affect substantial rights. 3. The unobjected to error s affect on substantial rights must result in substantial prejudice. Olano was cited in U.S. v. Dukes, 139 F.2d 469, 476 (5 th Cir. 1998):... this Court need not correct forfeited errors that do not affect the fairness, integrity and public reputation of the judicial process. 4. Substantial prejudice means the unobjected-to error caused the conviction. Calverly quotes Olano, 37 F.3d at 164 and states, citations omitted, as follows: Olano counsels that in most cases the affecting of substantial rights requires that the error be prejudicial; it must affect the outcome of the proceeding. The burden of - 4

persuasion lies with the defendant. Absent a showing that a substantial right has been compromised, no remedy is available. This is the reverse of the harmless error analysis which provides that a defendant who has objected to an error at trial receives relief absent a demonstration by the government that no prejudice resulted. Comments: a. The government must prove objected-to error is harmless. b. If error is forfeited, the Defendant must show that the plain error affected the outcome, i.e., that he would probably have been acquitted or the case dismissed. c. Query: How do we do (b) without interviewing the jurors? 5. An unobjected to comment on the Defendant s silence, and a court s charge which omitted an instruction on the Fifth Amendment, was not reversible error. U.S. v. Griffith, 118 F.3d 318 (5 th Cir. 1997). C. YOUR PERFORMANCE IN MAKING AND MEETING OBJECTIONS CAN IMPACT ON MANY IMPORTANT AUDIENCES: 1. Judge. 2. Jury. 3. Appellate court. 4. Defendant. 5. Public in courtroom. 6. Media and the community. 7. Other lawyers. 8. Potential clients. 9. The 2255 lawyer. 10. Malpractice carrier, State Bar, etc. D. THERE MAY BE MULTIPLE REASONS TO OBJECT, INCLUDING: 1. We want a fair trial and we want it now. 2. Keep jury from hearing inadmissible evidence. 3. Protect the record. 4. Tell jury the prosecutor is unfair to justice and hiding the truth. - 5

5. Interrupt flow of prosecution's case. 6. Create opportunities to narrate themes and points to jury. 7. Demonstrate superior confidence that the law and the facts favor the defense. E. WHY WE RESPOND TO PROSECUTION OBJECTIONS: 1. See II-D, "Reasons to Object," above. 2. Inflict pain if prosecutor overruled. F. WHY NOT OBJECT? 1. It is rude to interrupt while someone is speaking; some members of the jury might be offended. 2. You'll be overruled and hurt twice as much. 3. You'll appear to be afraid of the truth. 4. You legitimize objections by, and rulings for, the prosecution. 5. Antagonizes the judge. 6. Paying attention to "the objection channel" is a mental distraction. III. KNOW HOW TO OBJECT AND ANSWER A. STEPS IN MAKING AN OBJECTION: 1. The "Hail" ("Objection"; "I rise, Your Honor, to object"; "Excuse me, please, for interrupting, but we object..."). 2. Grounds (This is "hearsay"). 3. Go to sidebar or excuse jurors, to avoid jury hearing harmful inadmissible evidence. ( May we approach, or May we please excuse the jury. ) 4. Authority ("Rule 803 forbids letting Judy testify about what she heard John say"). 5. Harm ("This is harmful, because..."). 6. Get a ruling ("Respectfully, Your Honor, by 'move along,' was the court sustaining the objection? or, May the record reflect the objection was overruled?"). 7. Obtain curative instruction or be denied relief. B. STEPS IN MEETING AN OBJECTION: 1. Assert standing ("May we reply?"; "May I be heard?"; "May the record reflect?;" etc.). 2. If a general objection is sustained, assume the objection is to form and rephrase the question. - 6

3. If objection is specific, state why the question is proper or a theory of limited admissibility. 4. If you really need the answer, but don't see the solution: a. Ask for a recess. b. Approach the bench and ask for help. c. Ask for a reason or a basis from the prosecutor and/or for the court to state the basis for its ruling (at side bar). d. Announce "we'll come back to that," or "we'll reserve this for when we recall the witness," and look for help from another defense lawyer or a book. e. Go to something else and come back later. 5. Style: a. Speak to the judge, not the prosecutor. b. Keep cool and courteous. c. Use plain language. d. Persist (don't be intimidated). ("I apologize. I don't mean to offend the court. And I don't want any other court to say Mr. Smith wanted to waive his right to a fair trial. I must state the grounds for my objection.") e. Don't show your injuries--accept defeat graciously--pretend you are satisfied ("Very well, Your Honor"). f. Accept victory--be a good winner--repeat and recycle favorable testimony admitted over objection. - 7

C. A FEW TACTICAL SUGGESTIONS 1. Plain Language objections; 2. If prosecution objection is General without a basis rephrase the question. 3. If the objection is leading, reconstruct the question with a convenient prefix: a. Is it true or not true... b. Tell us whether or not 4. Argue the relevance of the defense evidence (But don t let the prosecutor argue relevance of his evidence). 5. If interrupted, recap testimony with a short speech before the next question. 6. Never say It s prejudicial. 7. Never say, It s not offered for the truth; say it s offered to show D. TRADITIONAL AND COMMON LAW OBJECTIONS: 1. Relevance and 403 Objections a. Violates Motion in Limine. b. Violates prior ruling of the court. c. Leads the prosecution's witness regarding material or contested facts. d. Calls for narrative question or constitutes a narrative response (requests or gives more than one new, material, relevant, controverted fact). e. Misstates the record or prior testimony. f. Repetitive ("asked and answered"). (Reply: "Opposing counsel has asked a related question but I have not.") g. Assumes facts not in evidence (and not conceded). h. No proper foundation (no proper predicate). i. Waste of time. j. Bolstering (Rehabilitation before attack). k. Calls for a legal opinion (or expert opinion from unqualified witness). l. Invites speculation, not personal knowledge. m. Impeachment on a collateral matter (Mark Fuhrman in the O.J. Simpson trial). n. Non-responsive answer. o. No personal knowledge. p. Truthfulness of another's testimony. 2. Objections to the Form of Questions: a. Ambiguous (likely confusing to witness or jury). b. Argumentative: i. Asks witness to testify to his own credibility. - 8

ii. Merely an effort by counsel to summarize, comment or quarrel with an answer. c. Compound questions (contains more than one question). d. Confusing. e. Harassing or embarrassing the witness. f. Unintelligible. g. Unfair. h. Impolite, rude, offensive. 3. Objections to Observable Events during Trial: a. Verbalize the conduct by oral description, state grounds, authority, show harm, get a ruling, etc. b. Example: i. "May the record reflect the prosecutor has the words "Organized Crime" written on a box on the table in front of the jury." ii. iii. iv. "That box injects unsworn testimony." "The jury may conclude that Mr. Smith should be convicted because they'll think he's in the Mafia." ("Objection sustained -- remove the box"). Continue to Object: "The jury will never ignore that box--no matter what instruction the court gives--we move for a mistrial." IV. USE THE RULES OF EVIDENCE (A few of my favorites...) A. THE "MAKING THE RECORD" RULES: 1. RULE 103. Rulings of Evidence. (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or - 9

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. (b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. (c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury (emphasis added). (d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. Comment: On December 1, 2000 the following language will be added to Federal Rule 103(a): Once the Court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection to preserve a claim of error for appeal. BUT: Don t say No Objection, when the bad evidence is offered to the jury. In Texas state courts, the statement no objection, when the evidence is offered at trial, waives any objection to the pretrial ruling. Dean v. State, 749 SW 2d 80 (Tex. Crim. App. 1988) (en banc). However, in the Fifth Circuit, stating no objection does not waive the right to appeal an adverse pretrial ruling. U.S. v. Hope, 102 F.3d 114 (5 th Circuit. 1996). Also, see Luce, pg. 16: Waiver if defendant first introduces the evidence. 2. RULE 104. Preliminary Questions. (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence - 10

of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (emphasis added). (b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearing of the jury. Hearings on the admissibility of confessions shall in all cases be conducted out the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. (e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. B. LIMITED ADMISSIBILITY: RULE 105 When evidence which is admissible as to one party, or for one purpose but not admissible as to another party, or for another purpose, is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. 1. Mallett s Comment on "Limiting Instructions:" a. I have found little in the way of case law and examples on "limiting instructions." It is clear that the limiting instruction should be given when the evidence is offered and that it may be reversible error to defer giving a limiting instruction until the jury charge. However, I have not found a set of model in-trial limiting instructions in any form book or treatise. b. Paid Prosecution Witnesses: If requested, the court should give a special instruction on the credibility of a paid witness. United States v. Dukes, 139 F.3d 469,476 (5 th Cir. 1998). c. A confession by a non-testifying codefendant that implicates the Defendant cannot be cured by a limiting instruction. Gray v. Maryland, 118 S.Ct. 115 (1998). - 11

d. The Fifth Circuit's Pattern Jury Instructions -- Criminal Cases (West, 1990) gives only one example of a limiting instruction to be given when evidence is admitted. The full page of Pattern Jury Instruction 1.40 is reprinted, as follows: 2. "Cautionary Instruction During Trial--Transcript of Tape Recorded Conversation. *Exhibit has been identified as a typewritten transcript [and partial translation from Spanish into English] of the oral conversation which can be heard on the tape recording received in evidence as Exhibit. The transcript also purports to identify the speakers engaged in such conversation. I have admitted the transcript for the limited and secondary purpose of aiding you in following the content of the conversation as you listen to the tape recording, [particularly those portions spoken in Spanish], and also to aid you in identifying the speakers. However, you are specifically instructed that whether the transcript correctly or incorrectly reflects the content of the conversation or the identity of the speakers is entirely for you to determine based upon your own evaluation of the testimony you have heard concerning the preparation of the transcript, and from your own examination of the transcript in relation to your hearing of the tape recording itself as the primary evidence of its own contents; and, if you should determine that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent. Note This instruction should be given when the tape is played and again in the final charge." C. RULE 106 - REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it (emphasis added). (This is called "the rule of completeness.") D. EXCLUDE RELEVANT EVIDENCE: RULE 403 Relevant Evidence Not Admissible. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the - 12

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. [Example: The majority of a Sixth Circuit panel has written that testimony about a drug-sniffing dog s indication of drug odor residue on currency should be excluded under Rule 403. U.S. v. Buchanan, 213 F.3d. 302 (6 th Cir. 2000). E. PROPENSITY EVIDENCE: RULE 404(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, reasonable notice is given in advance of trial of intent to introduce in the state's case in chief such evidence other than that the arising in the same transaction. F. RULE 613(A) Cross-Examination with a prior statement: You may question the witness without handing over the statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. G. ARTICLE 8: HEARSAY: 1. Practical Rule in Practice: Hearsay is admissible if it helps the prosecution, not admissible if it helps the defense. 2. The Hearsay Rule according to Mallett: a. Definition: Hearsay is an out-of-court statement. b. Rules: (1) Hearsay is not admissible. (2) There are exceptions to the Rule. (3) Different judges have different notions of what the exceptions are. (4) If the prosecutor needs it, it is probably coming in, and any error is probably harmless. - 13

3. The "original source" of hearsay -- the declarant -- may be impeached. a. Rule 806 includes this language: "... the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness." b. The defense may use Rule 404(b), to show the declarant s motive, intent, bias, etc. by extraneous misconduct. c. The Federal Rules treat a conviction while on appeal as "final" for impeachment purposes (Rule 609(e)). Tex. R. Cr. Ev. 609(e) is the opposite. H. RULE 803(18) LEARNED TREATISES: The following [are]not excluded by the hearsay rule: To the extent called to the attention of an expert witness upon crossexamination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. I. RECORDS CUSTODIANS: Rules 803(b) and 902 have been amended effective December 1, 2000 to abolish the requirement a that records custodian lay the foundation for business records. Domestic Records (803 (b),) like foreign records will be selfauthenticating, based on a notice requirement and the custodian s written declaration. J. RULE 806: IMPEACH THE NON-TESTIFYING CONSPIRATOR: When a hearsay statement, or a statement defined in Rule 801(d)(2)(c), (d), or (e), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant s hearsay statement is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under crossexamination. - 14

V. PROTECT THE RECORD - FOLLOW THE CONTEMPORANEOUS OBJECTION RULE. A. Exclude the jury from hearing that bad evidence even exists! (Rule 103(c); 104(C); 105; 403; 404(B); Motions to Suppress and Motions in Limine). Comment: You may rely on a pretrial motion to suppress, without renewing the motion during trial. However, the Court of Appeals will not consider the trial testimony as it bears on the admissibility of the evidence unless the motion is renewed. U.S. v. McRae, 156 F.3d. 708 (6 th Cir. 1998) at 711: On appeal, defendant also relies on testimony presented during trial to support his claim such evidence, however, cannot be considered by this court because it was not offered at the suppression hearing and the defendant did not renew that motion to suppress at trial. B. Objections must be timely and specific (Rule 103 (a)(1)) and cite anticipated harm. C. A proponent may offer for a limited purpose and the opponent is responsible for requesting a limiting instruction when the evidence is admitted. The opponent may object to the sufficiency/adequacy of the court's limiting instruction. D. The defendant must be denied requested relief. E. The record must show what was excluded or what evidence was wrongly admitted and the harm. F. If evidence is admitted for a limited purpose, and used or argued for another purpose, the appellate court will assume forfeiture or waiver of the limitation unless the appellant objects. G. The appellate court will usually consider only contentions presented and overruled by the trial court. H. What is admitted as relevant under Rule 402 may be properly objectionable under Rule 403. (See the Old Chief case, 117 S.Ct. 644 (1997))(Facts of prior convictions inadmissible in felon in possession of a firearm case if Defendant will stipulated to being convicted.). I. Force the prosecutor to state the Rule 402 relevance; his proposed Rule 105 limiting instruction, and then the record should reflect a Rule 403 balancing ---- outside the jury s presence or hearing. J. If evidence is to be admitted with a limiting instruction, Rule 403 may be reurged and the 403 balancing repeated. K. If the jury heard an offending question or answer, and if the objection is sustained, move for curative instruction; if given, move for a mistrial. (Ascending order of relief requests). L. Have limiting instructions generally renewed in the jury charge and move in - 15

limine to restrict improper use in jury argument. M. Don t offer bad evidence or an adverse ruling on exclusion is waived. In Ohler v. U.S., 529 U.S., 2000 W.L. 646269 (May 26, 2000). The Supreme Court held that a defendant who first introduces evidence waives any error in a pretrial ruling that it will be admissible if offered by the prosecution. N. If there is a pretrial ruling that a prior conviction is admissible for impeachment, if the defendant testifies, any error is waived, if the defendant introduces the evidence in his direct examination OR if the defendant does not testify. Luce v. U.S., 469 U.S. 38, 105 S.Ct. 460 (1984). V. CONCLUSION 1. The making and meeting of objections is part of the show. 2. Ignore the Rules of Evidence and the prosecutor and court will roll all over you, because nothing is being preserved for appellate review. 3. Enforce the rule and the steamroller may slow down. - 16