#2. Timeliness requirement. Not only is an objection necessary. An objection must be “timely.” See FRE 103(a)(1).

The requirement of timeliness has two sides; it has a Goldilocks flavor or quality:

An objection can't be made too soon.

But it also can't be made too late.

The timing of the objection must be just right.

First consider the problem of

premature objection articulation



If an objection is made too soon, it will be condemned as "premature": the trial court can safely ignore a premature objection for that reason alone. The judge will frown at you and say, "Counsel, your objection is premature. Overruled."

But when is an objection premature?

The answer (subject to some inevitable exceptions) is, first, that

• an objection made during the laying of the foundation is premature.

A party is not permitted to object to the answer to the punch line question – to the PLA – while the foundation for the punch line question -- PLQ -- is being laid. This is too soon.

Furthermore -- second -- , a party cannot object to the possibility of a punch line answer (in the presence of the jury) unless and until the punch line question is has been put (or, in the case of tangible evidence, until the proponent says, “Your Honor, we offer plaintiff's exhibit #26). So the OBJ cannot be made either during F or during PLQ -- but only after PLQ:

OBJ after interval F and after point PLQ:

TrJ

JJ C__I__O__B__F---->OFF (e.g., PLQ) __OBJ__SUBMIT (e.g., PLA)__

Jy

------->

time

But now look at the other side of the coin of the timeliness requirement. As I have already noted, the requirement that an objection be timely has a Goldilocks quality: the timing of an objection must be just right. The inverse (obverse? converse?) of the principle that an objection must not be premature is the principle is that an objection must not be made too late.

• If an objection is made late, if an objection is belated, a hard-nosed judge is entitled to say -- and sometimes will say -- that the party making the belated objection has forfeited or waived its right to object. The judge may well frown and say, "Counsel, I am overruling your objection as unseasonable. You did not make your objection in a timely fashion."

But when, precisely, is the right time to make an objection? How long can you wait before it is too late?

The answer is,

Not long!

Subject once again to those execrable exceptions that the law is so fond of, the more precise answer is:

In the case of both testimonial evidence and tangible evidence the opponent must object immediately after the offer of evidence is made.

• In the case of testimonial evidence, this means that the opponent must object before the witness answers.

• In the case of tangible evidence, the timeliness requirement means that the opponent must make its objection before the trial judge gets around to saying, "Admitted," before the trial judge rules favorably on the offer of tangible evidence.

The rule that an objection must be made before the witness answer (or, in the case of tangible evidence, before the judge rules on the offer) -- this rule is called the contemporaneous objection rule.

The contemporaneous objection rule means that the trial lawyer who wishes to keep evidence from the jury has just a little interval -- the space between PLQ and PLA -- ...

TrJ

{now [be quick!]:}

JJ C__I__O__B__F---->OFF (e.g., PLQ) __OBJ__SUBMIT (e.g., PLA)

|-----------------------------------------|

... (s)he who hesitates is lost!..

Jy

------->

time

... in which to lodge an objection. So trial lawyers literally have to be quick on their feet -- or, at least, they have to speak quickly (often before they know what they will say). [Rise to object and start thinking]

Motion to Strike

[we have already talked about this device enough; so we will not discuss this now]

***

(i) You have been reminded of the necessity of an objection (more precisely: of waiver by failure to object).

(ii) You have also been reminded that an opponent of evidence must make a timely objection.

But that's not all an opponent may be required to do.

The cases, textbooks, and codes all say that objections must be specific, not general.

Furthermore, like a proponent of evidence, an opponent may be required to provide supporting legal authority upon request; e.g., to cite a case or two, quote the language of any pertinent rule, etc.

Offers Redux

Now let's talk about offers again. Let me tell you two sad stories:

Story #1

The first story involves Wally Witness. He is your witness in an automobile accident case. You want him to testify that he saw the Defendant's car rocket through a red light and slam into your client. So you carefully lay a foundation for his expected punch line, you show that he was in a position to see the events at the intersection of 5th Avenue & 12 Street at 10:00 p.m. on June 1, 2001. You then ask your PLQ,

Q. What did you see?

Your opponent says,

" Objection. Hearsay."

You mutter and splutter. And then you finally say,

" Your Honor, there is no hearsay problem here. There can't be. I'm not asking Wally to recount what anyone said. I'm asking Wally to recount what he saw. And, your Honor, I assure that Wally's testimony will not involve any claims by Wally that he saw any writings or other symbols. It can't be hearsay."

The trial judge replies:

" Well, I will sustain the objection."

You mutter and splutter some more. And then you say, "Your Honor, I think this is an outrage. But you have ruled. And so I will just take an exception to your ruling, your Honor and, if I lose at trial, I will just have to take my chances on appeal. In view of your ruling you Honor, I have no more questions for this witness, Wally Witness."

The trial goes on. You call additional witnesses. But your heart is not in the effort: you have lost your chief witness. Eventually the trial ends. And it ends badly. The jury returns a verdict for the defendant. Judgment is entered on the verdict.

But you appeal! (Hope springs eternal.) Your sole assignment of error on appeal is the trial court's ruling excluding the punch line testimony of Wally Witness.

You argue on appeal that the trial court erred in sustaining your opponent’s hearsay objection. And you carefully explain to the appellate court that you carefully explained to the trial court why the hearsay objection was bad.

So you say, in effect, "I did my job! I gave the trial court the information it needed to make an informed ruling on the hearsay objection."

And you are correct in saying that the hearsay objection was bad.

But -- despite all of this -- you will almost certainly lose your appeal.

Why?

Answer:

Your failure to make an offer of proof.

Yes, that's right: if a trial court excludes evidence and the content of the evidence is not apparent, the unsuccessful proponent of the evidence must make an offer of proof.

C_ O_ I_ B_ F —> PLQ __ OBJ __ R (exclude!) __ OoP

This -- after PLQ, OBJ & R (exckude!) -- is now where you are.

Now -- being here --, having failed in your attempt, you must make an offer of proof.

Cf. the somewhat cryptic language in FRE 103 (quote the language)

Story #2

Now consider another story:

P dues D for injuries allegedly sustained as a result of D's negligent driving.

The collision occurred at Smith and Main Streets at 2:30 p.m. on June 1, 2000.

F was a passenger in D's car at the time of the collision.

P calls W.

She asks W if she was at Smith and Main Streets at 2:30 p.m. on June 1, 2000.

P asks if W saw the collision.

W replies that he didn't because he was turned in the opposite direction at the time of the collision. However, W testifies that he heard a loud noise, turned out, and saw two wrecked cars in the intersection, P's and D's and that he then rushed up to D's car to offer his help. He testifies that he first saw F lying in the passenger seat of D's car.

P asks W what happened then.

W: I asked him what happened.

Q. What did he say?

D'S ATTORNEY: OBJECTION, HEARSAY

P'S ATTORNEY:

Your Honor, the out of court statement falls within an exception to the hearsay rule.

COURT: Which exception is that?

P's ATTORNEY:

W's answer will make that plain, your Honor.

COURT: Might I be enlightened on how?

P'S ATTORNEY: I can't help you, your Honor.

COURT:

If you can't help me, I can't help you. OBJECTION SUSTAINED.

P's ATTORNEY:

Your Honor, I would like to make an offer of proof.

COURT:

Fine, I wouldn't want to prejudice your right to appeal, God forbid.

P's Counsel:

But, your Honor, may I say one more thing?

COURT: Well, what is it?

P’s Counsel:

I'd like to make the offer of proof after all the evidence is in. That way we won't have to interrupt these proceedings to remove the jury. Moreover, I might yet decide that an offer of proof is unnecessary.

COURT:

Well, this procedure is a bit irregular. But I see no harm in it. O.K. here's my ruling: you can make your offer of proof after the jury retires to deliberate.

P's counsel: Thank you, your Honor.

COURT: Don't thank me. I'm just doing my job.

There is further testimony, both for the plaintiff and the defendant, both sides rest, the attorneys make their closing arguments, the judge instructs the jury, and the jury retires to deliberate.

P then makes her offer of proof:

i.e.,

W retakes the stand and testifies that in response to his question, W's question, F said, "I guess it was because of crack. Just before the accident D and I were using it. Just then, the car ran through the intersection and collided with P's car."

P's counsel asks W where F is now.

W replies that F is dead: "After F answered my question, his head fell off and rolled into the street."

P's attorney then states, "Your Honor, the statement of F is relevant and it is a declaration against interest because F admitted the commission of a crime and he is now plainly unavailable. This satisfies the requirements of FRE 804(b)(3)."

P's attorney is correct about this. W's testimony is relevant and it is a declaration or statement against interest and it therefore is not barred by the hearsay rule.

P's attorney then states,

Your Honor, I move for a mistrial. You obviously made an error by excluding W's testimony and your error is likely to affect the outcome of the trial. In the alternative, I move that the jury be recalled so that it can hear W's testimony about F's statement.

The judge denies P's motions.

A few minutes later the jury troops back into the courtroom and announces that its verdict is for D.

P moves for a new trial, again on the ground that the trial court erred in excluding W's testimony.

The trial judge also denies this motion.

Judgment is entered for D, and P appeals. The ground of her appeal is the trial judge's refusal to allow W to testify.

During the oral argument on appeal a member of the appellate court asks P whether P preserved her claim of error for appeal. She responds that she did, saying,

"Your Honor, I made an offer of proof. Moreover, I explained the legal basis for the admissibility of W's testimony."

A few months later, however, the appellate court disposes of the appeal on the basis that D did not make an adequate offer of evidence. It states,

Although P made an offer of proof, she did not provide a timely description of the thrust and purpose of the evidence that she was offered and she did not explain why the evidence was not barred by the hearsay rule. The offer of proof satisfies our interests but P's lawyer did not consider the needs of the trial judge. Her offer of evidence came too late. The judgment below is affirmed.

The appellate court is saying several things:

1. P did satisfy her obligation to place the excluded evidence in the record. Hence, if there was error below, this court is in a position to decide whether or not the mistake was prejudicial.

2. However, a trial lawyer who offers evidence at trial also has an obligation to provide information to the trial court so that it can make an informed ruling. This P did not do before the trial judge ruled on the admissibility of the evidence.

3. P’s counsel did ultimately explain the nature of the evidence and the legal basis for its admissibility. This explanation, however, was made after the jury had retired to deliberate. This is much too late. Ordinarily, the explanation – the offer of evidence – must be made before the trial judge rules on the question of admissibility. This requirement of a timely offer parallels the requirement imposed by the contemporaneous objection rule.

In summary, P's basic mistake was in not giving the trial court the information the trial court needed to make a decision about the admissibility of the hearsay evidence of W. Although P made an offer of proof and although the evidence of W was in fact admissible, P has waived any claim of error on appeal.

Consider the two stories that I have just discussed. The first story illustrates the offer of proof requirement -- the requirement that excluded evidence be placed on the record after its exclusion by the trial court. Diagrammatically and chronologically that requirement looks like this:

C_ O_ I_ B_ F —> PLQ __ OBJ __ R (exclude!) __ OoP

C = call the witness, get the witness on the stand

O = oath or affirmation

I = witness identifies himself or herself

B = background evidence (about the witness)

F = foundation

PLQ = punch line question

OBJ = objection

R(exclude!) = trial court ruling -- "objection sustained" -- excluding the offered evidence

OoP = offer of proof

The common law required an offer of proof after an unsuccessful offer if the thrust of the proffered evidence is not already apparent.

The FRE, in the somewhat cryptic language of FRE 103(a)(2), codify that common law requirement -- or so innumerable judicial opinions have said & assumed.

The second story involves the offer of evidence requirement. Schematically and chronologically an offer of evidence looks like this:

C_ O_ I_ B_ F ----> PLQ __ OBJ __ OoE ___ R

Where OoE = offer of evidence

The story I told you -- the one about an attempt to introduce evidence that in fact satisfies the requirements of an exception to the hearsay rule -- is designed to teach three different lessons.

First, it is meant as a reminder that the requirement of an adequate offer of evidence is distinct and separate from the requirement of an offer of proof.

Second, story #2 emphasizes the obligation of an offeror to provide the trial court with pertinent and timely information prior to a trial court ruling. In my story the offeror pays a heavy penalty for her failure to provide the trial court with pertinent legal authority and a good legal explanation for the admissibility of the evidence that she offers.

But my little story also illustrates a yet broader principle, one that runs beyond the topic of the requirements applicable to the making of offers of evidence. My little story illustrates a general premise underlying the American version of an adversary system of litigation. That general premise is this:

The trial judge is entitled to have the lawyers in the case provide him or her (the trial judge) with the information the trial judge needs to make an informed rulings, including (but not limited to) rulings about the admissibility of evidence.

{This approach makes the job of being a trial judge an easy one: the judge don't need to know nuttin'.}

One corollary of this broad proposition about the obligations of the parties toward the trial court is that a proponent of evidence must provide the trial judge not only with a specific explanation of the reason or reasons for the admissibility of the proffered evidence, but also with the right specific explanation or reasons. One edition of Weinstein's Evidence Manual ¶2.03[3] at 2_20 & 2_21 makes the point this way:

In making an offer of proof [evidence], counsel must be careful to specify every way in which the evidence satisfies an evidentiary rule, and to articulate the purpose for which the evidence is being offered. A purpose not identified at the trial level will not provide a basis for reversal on appeal.

McCormick's hornbook §51 at 73 (4th ed.) makes the same point in the following way:

If counsel specifies a purpose, for which the proposed evidence is [in fact] inadmissible, [on appeal] counsel cannot complain of the [trial court's] ruling [rejecting the evidence] even though [the evidence] could have been admitted for another purpose.

Consider an illustration.

Suppose that a bank brings a civil action against a defendant to recover money that it claims the defendant took from it during a robbery on June 1, 2001. The defendant denies that he took any money or that he robbed the bank.

At the trial the bank offers to show that the defendant committed another bank robbery on January 3, 2000, by threatening a bank teller with a Doberman Pinscher. In response to the defendant's objection, the bank's attorney states, "Your Honor, this evidence shows that the defendant has a habit of robbing banks."

The trial judge sustains the defendant's objection to the evidence about the prior bank robbery.

Verdict and judgment are for DD.

The bank appeals.

On appeal the bank argues that while the evidence was not admissible to show defendant's general propensity to rob banks -- this because of a rule known as the character evidence rule or the propensity rule -- the evidence was admissible on the issue of the identity of the perpetrator of the second bank robbery because both robberies were committed by the use of Doberman Pinschers and the fact that the defendant committed the prior bank robbery with a Doberman is good evidence that he was the fellow who committed the other bank robbery with a Doberman.

This theory, as it happens, is probably a good one; evidence when offered in this way is not barred by the character evidence rule. The trouble is that the proponent of the evidence {the bank} gave the trial court the wrong explanation for the admissibility of the evidence. When that happens, the trial court's exclusion of admissible evidence will not result in reversal on appeal: the appellate court will say that the proponent did not make an adequate offer of evidence {"proof"}. What an appellate court means when it says that sort of thing is that the proponent of the evidence did not give the trial court the correct explanation for the admissibility of the evidence that it offered.

If you step back from the details of the rules governing the informational content of offers and objections, the general picture that seems to emerge is something like this:

The duties of proponents and opponents of evidence are roughly symmetrical because:

First, both sides are required to make their positions and desires known to the trial court; so the proponent must make an offer and the opponent must make an objection. Without these, no ground for complaint.

Second, both sides are required to inform the court of the reason or reasons bearing on the admissibility of proffered evidence. The proponent, the offeror, must explain the relevance and purpose of the evidence. The opponent must make a specific rather than a general (vague, uninformative) objection.

Third, each side is required to provide the trial court with pertinent legal authority.

The general theme here seems to be the trial court needs information to make an informed ruling and that it is the obligation of both parties to supply the necessary information to the trial court.

Right?

Consider this situation:

{now: parallel to the requirement that an offeror be usefully informative, the requirement that the party making an objection provide useful information, which in this instance generates the requirement that correct specific objection be made; but my story has a twist, because my story emphasizes the failure of the offeror to be informative and my hypo then also illustrates or makes the point that that defect (the offeror's failure to communicate) doesn't matter because the court chooses to rule against the mis-communicating objector [the objector who makes the wrong specific objection]}

In an automobile accident case P offers to have W testify that he heard an eyewitness to the accident say that D ran the red light and struck the plaintiff.

D's counsel states:

" Objection. The evidence is irrelevant."

COURT:

"Counsel for P, do you have anything to say?"

P's counsel:

" No, your Honor. The purpose and relevance of my offer are obvious."

COURT:

" Objection overruled."

V & J for P.

D appeals.

On appeal D's counsel argues that the testimony of W – the testimony that the trial court admitted – was hearsay evidence and that the trial court therefore erred in admitting it.

The appellate court agrees that W's testimony was about hearsay. But it refuses to disturb the verdict and judgment for the plaintiff.

The appellate court might well explain its ruling by quoting from U.S. v. Rubin, 609 F.2d 51 (2d Cir. 1979):

A specific objection overruled will be effective to the extent of the grounds specified and no further. An objection overruled, therefore, naming a ground which is untenable, cannot be availed of [even if] there was another tenable ground which might have been named but was not.

This result squares with the treatment of general objections.

"A general objection overruled will not avail the objector on appeal." Thus spake the august Wigmore -- and many, many appellate courts as well.

They say this sort of thing, they talk this way, because a specific objection is as uninformative as a general objection if the specific objection gives the wrong reason for the exclusion of the evidence proffered by the proponent, by offeror.

But now NOTE an oddity here: True, the party making the objection, the defendant, did not provide the trial court with useful information. But neither did the offeror. Nonetheless, the offeror [P] wins on appeal even though the offeror does not explain the relevance of the evidence.

Counsel for P refused to explain how the evidence was relevant. P nonetheless wins on appeal. Does this give the lie to the proposition that a good offer, like a good objection, must be specific and informative?

Let's try to answer this question by considering the six problems about offers and objections that I have posted on the course web site, http://tillers.net/seattle/materials/offerobjectionproblems.html

I preface those problems with a stipulation:

In the following problems "a general offer of evidence" is one in which the offeror does not explain the relevance or purpose of the evidence, and "a specific offer" is one in which the nature of the proffered evidence is made apparent to the trial court and the offeror does give a specific explanation (whether accurate or inaccurate) of the relevance and purpose of the evidence.

1.

PP makes a general offer of evidence.
DD makes a general objection.
The trial court sustains the objection.

For example:

P asks W, "What did you see?"

D states, "I object."

Court: {addressing P:} What's purpose of this evidence, counsel?

P: I think the relevance and purpose of this evidence are obvious.

Court: Objection sustained.

Verdict and judgment are for DD.
PP appeals.

Who wins?

Does it matter whether PP's evidence was admissible?

Answer: P will lose. The appellate court will say that P failed to make an adequate offer of evidence because he failed to explain the relevance and purpose of the evidence. It matters not whether the evidence was or was not admissible. The appellate court will invoke and apply the rule that a general offer that is rejected will not avail the offeror on appeal. (There are countless decisions that affirm this principle.)

2.

PP makes a general offer of evidence.
DD makes a general objection.
The trial court overrules the objection.

For example:

P asks W, "What did you see?"

D states, "I object."

Court: {addressing D:} What's basis of the objection, counsel?

D: I think the defect in the question is obvious.

Court: Objection overruled.

Verdict and judgment are for PP.
DD appeals.

Who wins?

Does it matter whether PP's evidence was admissible?

Answer: D will lose. The appellate court will say that D made a general objection and it will invoke the maxim that a general objection overruled will not avail the objector on appeal. It matters not whether the evidence was or was not admissible. The opponent of the evidence failed to give the trial court the information it needed and wanted.

3.

PP makes a specific offer of evidence.
But PP's explanation of the relevance and purpose of the evidence is incorrect.
DD makes a general objection.

In a negligence action --for negligent loss of entrusted property -- P offers to show that D once embezzled money from his employer. P argues that this evidence is admissible as a prior similar fact. However, that explanation is incorrect; the prior act is not very similar. But, as it happens, the embezzlement can be used to attack the credibility of D. But P fails to mention this last point.

The trial court sustains the objection.
V & J are for DD.
PP appeals.

Who wins?

Does it matter whether PP's evidence was admissible?

Answer: As you already know -- because Judge Weinstein told you so -- the proponent of admissible evidence must give the trial court a correct explanation of the relevance and purpose of the evidence. (An explanation not tendered to the trial court will not avail the offeror on appeal if the trial court rejects the offer.) Theory: The wrong explanation is of no help to the trial court. Bottom line in this situation: It matters not that the evidence offered was in fact admissible.

4.

PP makes a specific offer of evidence.
But PP's explanation of the relevance and purpose of the evidence is incorrect.
DD makes a general objection.
The trial court overrules the objection.
V & J for PP.
DD appeals.

Who wins?

Does it matter whether PP's evidence was admissible?

(I think the answer to these questions is unclear. After class, see if you can explain why given what you will shortly find out about problem #6. [I believe that this problem is the mirror image of problem #6. See if you agree with me.])

5.

PP makes a general offer of evidence.
DD makes a specific objection.
But DD's specific objection is incorrect.
The trial court overrules DD's objection.

For example:

P offers a document. D objects to the document as hearsay. It is not hearsay. But it is possible that the document violates the character evidence rule and it is possible that the document has not been adequately authenticated. D, however, did not mention these last two points; he objected on the incorrect ground of hearsay, and the trial court overruled the objection.

V & J for PP.
DD appeals.

Who wins?

Does it matter whether PP's evidence was admissible?

Answer: The wrong specific objection overruled does not avail the objector on appeal; a specific objection preserves objections only on enumerated grounds, and if the enumerated reasons for exclusions were incorrect, the objector loses on appeal. It matters not that the evidence was in fact inadmissible; it is immaterial that there was in fact a defect in the offer.

6.

PP makes a general offer of evidence.
DD makes a specific objection.
But DD's specific objection is incorrect.
The trial court sustains DD's [incorrect] objection.
V & J for DD.

PP appeals.
Who wins?

Does it matter whether PP's evidence was admissible?

For example:

PI Case: 5^th Ave & 12^th Street

Question to Wanda Witness: "Didn't you see the defendant's car rocket through the intersection?"

Objection: Hearsay, your Honor.

• In point of fact (or law): The answer sought is not hearsay. Reason: No attempt is being made to elicit testimony about an out-of-court statement. So the testimony cannot be evidence of hearsay. The trial judge nevertheless states:

Objection sustained.

PP makes an offer of proof.

J & V for DD.

PP appeals.

Will PP win or lose?

Answer: It depends.

In some jurisdictions the appellate court will invoke the rule that if the evidence was inadmissible for any reason, the ruling excluding the evidence will be upheld on appeal.

In other jurisdictions appellate courts would entertain the appeal – and would order a new trial in this situation – because in these jurisdictions appellate courts follow the alternative principle that when the wrong specific objection is sustained a new trial may be granted if (i) there is a substantial possibility that the excluded evidence might have led a different result and (ii) the defect in the objected-to evidence is curable.

• Here a new trial would be granted because the excluded evidence is plainly important and the evidentiary defect – the asking of a leading question – is plainly curable (though the harm has been done, yes?!).

One of the things you have learned is this:

There is only one situation in which the failure of an objector to give the trial court useful and accurate information may provide you with a basis for an appeal even though the trial court ruled against you after you failed to make an adequate offer of evidence. This is the situation in which you offer evidence that is in fact inadmissible for one reason -- e.g., because it violates the best evidence rule -- and your opponent makes a specific objection but makes it on the wrong ground, gives a different and wrong reason for the inadmissibility of your evidence.

Consider another example of this wrinkle in the rules governing objections:

You offer to have a witness testify about the contents of a document. Doing this, however, violates the best evidence rule; generally to show the contents of a document you must submit the document itself.

Your opponent, however, instead of saying, "Best evidence rule, your Honor," states, "I object. Hearsay."

The judge nevertheless sustains your opponent's objection.

You appeal.

On appeal your opponent states, "I made the wrong objection, but the evidence is in fact inadmissible. Hence, no error."

The courts in many jurisdictions, but not all, will respond by saying, there is appealable error -- presumably because the opponent misled the offeror.

In these jurisdictions -- i.e., in those that allow an appeal by the offeror in this situation -- the rule about appeals runs this way in its full glory: If the objector makes a specific objection but makes it on the wrong ground, the exclusion of the evidence is appealable error and reversal on appeal is possible – but only if the unchallenged defect in the offer was curable, only if the problem with the evidence could have been corrected by the offeror.

The possible bottom-line conclusion by an appellate court in this situation is this: Had you, the objector, made the right objection, the offeror would have realized that he faced a best evidence problem and the offeror might have cured the problem by showing that the written document is unavailable. Hence, if we find that there is a substantial chance that the excluded evidence might have produced a different outcome at trial, we will reverse.

Examples of incurable errors or defects are not as easy to come by.

{Why?}

But a possible example involves the same scenario:

Q. Please identify yourself.

A. Wanda Witness.

Q. Isn't it a fact that DD drove through the intersection at 5^th Avenue & 12^th Street at about 100 miles per hour?

Objection. Hearsay.

Sustained.

PP states, "Your Honor, for the record, if the witness had been allowed to answer, she would have said, "Yes."

Trial goes on.

V and J for DD.

PP appeals.

PP will probably lose.

Why?

Because although the evidence sought was not hearsay, there was no showing that the witness had personal knowledge. The appellate court has no basis for saying that on retrial the proponent of WW's testimony would be able to show WW's personal knowledge. So the appellate court might say that the evidentiary defect is “incurable.”

• What do you think? Should it?

Problem 4 again

PP makes a specific offer of evidence.

The evidence is admissible. But PP's explanation of why the evidence is admissible is incorrect.

DD objects to the evidence.

The trial court overrules DD's objection – perhaps because the trial court sees that the evidence is admissible for a reason and purpose not stated by PP {e.g., DD’s wrongful act is admissible to impeach DD even though it is not admissible as a prior similar reckless act as circumstantial evidence of the alleged reckless act by DD at issue in the lawsuit }.

V & J for PP.

DD appeals.

Who wins?

Consider this question in light of our discussion of problem #6.

Now, having considered Problem 6, what conclusion or conclusions do you draw about the appropriate treatment of the offer in Problem 4? I leave this problem to your discretion and wisdom.

***

New Question:

Putting aside the special cases in problems #4 & 6, what do the rules about offers & objections reveal about the adversary character of the process of proof?

I have given my answer in the course web page that I call:

"How to Savor the Sweet Smell of Victory without Knowing Anything about the Law of Evidence!"

There I wrote:

[Earlier] I told you that offerors of evidence must make specific and informative offers.

{Earlier] I also told you that parties objecting to evidence must make objections that are specific and informative.

But -- as I told you on my web page -- these statements of mine are lies, lies, lies! Yes, offers and objections do have to be specific sometimes. But not always!

 As a matter of fact, you can be completely ignorant of the law of evidence and still get evidence admitted or excluded – as long as two conditions are satisfied:

(1) Your opponent is as ignorant as you are about the law of evidence.

(2) The trial judge likes you and detests the opposing lawyer(s).

For example:

Your opponent offers inadmissible hearsay evidence.

But you are ignorant, ignorant, ignorant of the law of evidence. You therefore do not say, "I object. Hearsay." Instead, not having the foggiest idea of what if anything is wrong with your opponent's evidence, you say instead, "I object."

Your opponent, however, is as ignorant as you are, and he, she, or it does not know that the evidence he, she, or it is proffering is hearsay and, therefore, cannot explain away the hearsay defect.

Now (because of your ignorance) you have made only a general objection to this inadmissible hearsay evidence.

But the trial judge likes you and detests your opponent. The trial judge therefore (probably) exclaims (or mutters), "Objection sustained."

If your opponent assigns the trial judge's ruling as the basis for reversal on appeal, you will win – despite your ignorance of the law of evidence. This is because the appellate court will invoke the familiar Wigmorean maxim, "If a general objection is sustained and the evidence was inadmissible for any reason, the objection [though general] will be upheld on appeal." (The rare situations in which an exception to this maxim applies are hereby ignored.)

But now suppose:

The trial judge does not like you; the trial judge instead likes your opponent and detests you. In that event, the trial judge is likely to say, "Objection overruled."

If you lose at trial and then assign the trial judge's ruling on appeal, you will almost certainly lose. The appellate court will probably invoke the Wigmorean maxim, "A general objection overruled will not avail the objector on appeal."

In both of these two situations you have been unhelpful, you have been uninformative. But in one situation you win, in the other you lose.

What sense does that make?

***

In one of the situations we just considered you made a general objection and you won: your opponent offered inadmissible evidence and you won even though you didn't have the foggiest idea why your opponent's evidence was inadmissible.

But can you be an ignorant objector and win even when your opponent offers admissible evidence?

Suppose that your opponent again offers hearsay evidence. But this time your opponent offers admissible hearsay evidence. Can you keep the evidence out and win on appeal?

The answer is emphatically "yes!" -- as long as the two conditions I mentioned are satisfied.

For example, when your opponent offers the admissible hearsay, you say, naturally, "I object."

The trial judge turns to your opponent and states, "What about this, counsel? You've got hearsay here."

Since your opponent is ignorant, ignorant, ignorant, he, she, or it did not know that the evidence it is offering is hearsay or that it is admissible hearsay and, therefore, in response to the judge's question, he, she, or it can only say something like this, "Well, your Honor, I confess I did not know I was offering hearsay and I cannot tell why this apparent hearsay is admissible. But I stand on my rights! I offer this evidence. I am sure it is admissible. My counterpart should state the basis of his, her, or its objection."

Fortunately for you, the trial judge likes you and detests your opponent, and the judge therefore tells your opponent and everyone else in the courtroom [including the court reporter], "I'm sorry, counsel. Objection sustained."

If your opponent loses at trial and appeals on the ground that the trial court erroneously excluded the proffered evidence, you, the appellee, now cannot argue that the appeal should be rejected because the trial court sustained a general objection to inadmissible evidence. However, you will very probably still win on appeal(!) – because the appellate court will very probably apply the familiar maxim that it is incumbent on an offeror of evidence to explain to the trial court the relevance and purpose of the evidence proffered and legal basis for the admissibility of the evidence.

But everything changes if either of the two conditions I have mentioned is not satisfied. Suppose that the trial judge detests you and likes your opponent. In that event, the trial judge will overrule your objection, “I object.” If you then appeal and assign the trial judge's ruling on appeal, you will lose for two reasons: (1) you made a general objection and – as Wigmore said long ago – "a general objection overruled will not avail the objector on appeal," and (2) the admitted evidence was in fact admissible.

***

The principles I have just illustrated in reference to objections and objectors also apply to offers and offerors: offerors can afford to be ignorant if the trial judge likes them and their opponents are also ignorant.

If I am right about this, about this what conclusion should we draw about the occasionally-voiced thesis that the rules requiring specificity of offers and objections are intended to ensure that all parties are seasonably informed of the reasons for the admissibility or inadmissibility of evidence proffered in trials?

Answer: We should conclude that there is a big hole in this thesis. Objectors and offerors simply are not always required to make statements in the courtroom that provide information to their opponents about the reasons for the admissibility or inadmissibility of evidence.

But if the rules governing offers and objections are not meant to ensure that adversaries are informed of the reasons why evidence might be admissible or inadmissible, what is the purpose of the rules governing the obligations of the parties to supply pertinent information about objections and offers?

My answer:

• The law cares either not at all or very little whether one party or another is informed of the reasons for admission and exclusion.

• The law cares not who is required to supply such information.

• The law cares only that the trial court gets the information it wants.

The rules governing offers and objections are such that the trial court gets to decide which party will carry the informational burden. This is the adversary system with a vengeance: this kind of system – the one we have – is one that permits a trial judge gets to put a heavy thumb on the scales of justice.

***

What are some of the

strategy implications of these rules.

One possible implication: If you think you can get away with it {i.e., if you think or are pretty nearly certain that the trial judge will go your way, will rule in your favor}, your best strategy is always to be general and uninformative – at least when your opponent is general and uninformative

Why is that?

Answer:

1. You don't educate your opponent.

2. You don't take the risk of giving the wrong explanation.

But the real world is always more complicated than our hypothetical problems and our abstract conjectures.

One difficulty with the tactical recipe I have just suggested is that in the real world is that you cannot be certain which way the judicial wind is blowing; i.e., you cannot be certain that the trial judge will rule in your favor when there are two ignorant lawyers in the courtroom.

What do you do then?

Would it be a good idea to start by being general and then if you see that the judicial wind is blowing the other way, become more specific, but only then?

Does this tactic present a risk?

Of course.

1. Suppose that the trial judge turns to you and says, "Is that all you have to say counsel, that you object?" If you say, "Yes," do you suppose that something unpleasant might happen to you? What?

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