Advisory Committee’s Notes May 1, 2000

Rule 46, making exceptions unnecessary, addresses a practice that has not existed for forty years. The rule is completely revised to pertain to objections, now fully covered by the Maine Rules of Evidence. The title is amended to be entitled “Preserving Objections.”

Annotations:

Rule 46: Unpreserved objections. Morey v. Stratton, 2000 ME 147, 8-10.

COMMENTS

§46.1 Objections to Evidence:

M. R. Evid. 103 is the basic rule governing objections at trial. It is short and to the point. Key features of Rule 103 indicate that:

(a) To be reversible, an error must affect “a substantial right” of the objecting party.

(b) Objections to admission of evidence must be “timely” and state the specific ground for the objection, if it is not apparent from the context.

(c) Objections to excluding evidence must make the substance of the excluded evidence known to the court, if it is not apparent from the context. This is usually done through an “offer of proof.”

(d) The court may expand the record regarding the objection and the ruling and can control how an offer of proof is made.

(e) Issues addressed pretrial must be subject to renewed offers or objections at trial, unless the court, or the context, indicates that a pretrial ruling is final and will preserve the point for appeal.

(f) In a jury trial, counsel must present and oppose objections in ways that do not suggest inadmissible evidence to the jury.

(g) The court may take notice of “obvious errors affecting substantial rights” even if there was no objection.

Trial objection practice requires brevity and precision. The objection must be prompt to avoid or limit objectionable material coming before the fact-finder. It must be precise, but sufficient to notify the trial court and any reviewing court of the basis for the objection. It must also be brief, particularly in a jury trial, to assure that the jury hears no improper statement or innuendo regarding the objectionable subject matter.

The following are some suggestions for objection practice. They are not listed in any particular order of importance or priority.

* Is It Important?

An objection can draw attention to a point like moths to a light.(fn1) Certainly object at points where the rules are clear and the offered information is potentially harmful, but if the rules are less clear and the tactical advantage uncertain, be cautious. Objections are a valuable, but limited, resource. Their use is vital to preserve and protect the client’s interests, but if objections are used too frequently they can damage the case and compromise your ability to object successfully when you really need to. As Professor Keeton(fn2) observed in his seminal text, Trial Tactics and Methods, “many jurors will eventually draw from your persistent objections either the inference that you do not trust the jurors or else the inference that you want to hide everything from them that you can and let them hear only

(fn1) For the same reason, choosing not to ask for a limiting instruction regarding adverse evidence may be a good strategic choice. See State v. Roman, 622 A.2d 96, 99 (Me. 1993); State v. Rogers, 389 A.2d 36, 38 (Me. 1978). See also Maine Jury Instruction Manual, §4-14 (4th ed. 2001).

(fn2) Now U.S. District Judge. your own side of the case.”(fn3) Do not let such inferences hurt your case with a judge, a jury or a local planning board.

* Do Not Give a Speech.

When you object, say “objection” and not much more. Be prepared to follow up with a brief justification, e.g., “hearsay,” “best evidence.” A justification is important to preserve the reason for your objection in the record. An “objection” without any reason being given that is “overruled” may be regarded as preserving nothing for appeal, unless the reason for the objection was “obvious.” State v. McMahon, 557 A.2d 1324, 1326 (Me. 1989); State v. White, 619 A.2d 92, 94 (Me. 1993); Field & Murray, Maine Evidence §103.2 at 7 (2000 ed.).

If a jury is present, avoid any rhetorical statement of your reasons for an objection. Such a statement in front of a jury is questionable as a matter of trial ethics. If your rhetorical flourishes are met only with a curt “overruled” from the bench, you may look foolish or overreaching. Rhetorical statements or evidentiary argument by counsel in front of the jury may violate M.R. Evid. 103(d), which states: “[i]n 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.”

* Stand.

Standing to object and argue objections demonstrates your respect for the court or any other forum and emphasizes the seriousness of the proceedings. Remaining seated while objecting looks sloppy and suggests carelessness.

There will be times, when seated, when you must object quickly

do so. If you do not act quickly, the objection issue may be waived or made ineffective by the witness’s answer. See Field & Murray, Maine Evidence §103.3 at 11 (2000 ed.); Stanley v. DeCesere, 540 A.2d 767, 769 (Me. 1988); State v. Brown, 410 A.2d 1033, 1036 (Me. 1980). Getting the objection out is more important than whether you are standing or sitting, but get up as quickly as you can.

(fn3) ROBERT E. KEETON, TRIAL TACTICS AND METHODS §4.2, at 168 (1973).

All rules, however, are not absolute. If for any reason standing is difficult, do not try to stand. Tell the court about any problem in advance. An accommodation can easily be made to both object and ask questions seated, in a way that may not highlight any difficulty you may have.

* When to Say “Thank You.”

A well placed “thank you” can improve the atmosphere for you and those around you. But there are times to be cautious. Saying “thank you” when a judge rules for or against you may sound patronizing. A “thank you” or “okay” response to losing an objection may be interpreted, on appeal, as acquiescence in the judge’s ruling and waiver of your objection.

* Limit Risks of Objectionable Answers to Your Own Questions.

When an objectionable answer is offered to a question you have asked on cross-examination, it is usually because you have broken one of two basic rules:

(1) Do not ask a question on cross-examination to which you do not know the answer; or (2) Do not argue with a hostile witness, or any expert. Counsel who argue with or try to embarrass hostile witnesses get hurt more often than they get helped. And if you object, the ruling might be: “You asked the question, you’re entitled to the answer.”

If you must present a hostile witness in your direct examination, make sure your questions are carefully structured to invite only short and specific answers. “A party may interrogate any unwilling or hostile witness by leading questions.” M.R. Evid. 611(c). Do not be afraid to seek help from the court in directing a witness to limit his or her answers to the questions that you ask, but this help is only useful if your questions have not invited the objectionable statement.

* Be Prepared to Make an Offer of Proof.

Where evidence may be excluded pre-trial or during trial, an offer of proof of what the evidence is intended to establish is necessary. An offer of proof promotes reconsideration by the trial court and preserves for review the issues of whether the exclusion was error and, if so, whether that exclusion was prejudicial. For review purposes, an offer of proof is not necessary if the nature of the excluded evidence “was apparent from the context in which the questions were asked.” M.R. Evid. 103(a)(2). However, be cautious to ensure that the purpose for which the evidence was offered is apparent to the trial court and in the record for review.

The trial court has considerable control over how an offer of proof is made. Offers of proof can be made through a statement by counsel, a written document or report indicating the nature of the excluded evidence, or questions to and answers from the proffered witness. For a discussion of offer of proof practice, see State v. McMahan, 2000 ME 200, 14-17, 761 A.2d 50, 53-55.

* Make the Objection Appropriate to the Media of the Event.

An objectionable event may occur in any media: sight, sound, live, on tape, at a view, inside or outside the courthouse. Most objections must be made in one media

an oral statement that will appear in a written transcript for later review. Stating, “I object to that,” preserves nothing if you are objecting to a witness making a threatening gesture towards your client, but you do not say that. Keep the media in mind as you object. Your objection on the record should sufficiently describe any sound, scene or action to provide an accurate description in the record for later review.

* Watch for Signals from the Court.

As questioning is proceeding, keep alert to the judge’s demeanor. On occasion, that demeanor may signal when or where to make objections if you deem it appropriate.

Judges respect the obligations of the obvious error rule, M.R. Evid. 103(e), M.R. Crim. P. 52(b), but judges are very reluctant to inject themselves into the flow of an examination. Judges recognize that attorneys generally know the case far better than they do, and may have tactical reasons for not objecting that may not be apparent to the court. Thus, when judges sense objectionable material being offered, they often look at counsel awaiting a statement or some move to signal an objection and justify action by the court.

* Do Not Wear a Path to Sidebar.

If you believe the judge has ruled mistakenly on an important matter, ask for a conference or similar opportunity to discuss the issue further. Sidebar conferences are useful when you want to avoid identifying and discussing objectionable issues in front of the jury, witnesses, or a client.

Remember, you know far more about the case than the judge. In ruling on the issue, the judge may not have fully understood the context in which the question was asked or the objection was presented. The only way to get a better understanding of these issues is by a conference. However, even at the conference, try to make a very brief statement of the issue and the basis for your position. See supra “Do Not Give a Speech.”

In jury trials, frequent sidebar conferences disrupt the proceedings and invite displeasure of both the judge and the jury. When they become overused, judges sometimes even refuse further sidebar requests. If matters are of sufficient concern that they require frequent conferences on issues, they probably should be addressed in a chambers conference or a motion in limine. The attorney who asks for frequent sidebar conferences or is regularly arguing evidentiary issues tends to be perceived as petty and unprepared.

* Apply Early for Important Rulings.

If areas of significant objection are anticipated, try to resolve the matter in advance and out of the presence of the jury through motions in limine or chambers conferences.

Getting questionable areas of evidence resolved before testimony begins will allow you to better plan and prepare your trial presentation in a way that is more coherent and looks more professional.

* There Is No Forest Through the Trees.

Rulings on objections are individual responses to particular trial situations. Do not make anything more of them than that. There is no box score. No standings are kept in objection practice. Those who try to keep score, or worry about it, only hurt themselves and their case.

A judge’s rulings on objections represent the judge’s good-faith efforts to deal most appropriately with the particular issues presented in the context of trial. They are not an implicit judicial comment on your skills as an attorney or the quality of your case. If you take rulings on objections personally or read into those rulings as comments on broader issues that are not there, it will harm your presentation. Reading too much into the court’s rulings on objections will also give the court and any jury the impression that the rulings have a greater significance than they may deserve.

§46.2 REVIEW OF OBJECTIONS ON APPEAL

If the result of the trial is appealed, be selective about which rulings on your evidentiary objections you appeal. Most rulings on evidentiary issues are based on discretionary judgments that are unlikely, by themselves, to justify a reversal of the judgment. Dolliver v. Dolliver, 2001 ME 144, 10-12, 782 A.2d 316, 317-18; State v. Tomah, 1999 ME 109, 7, 736 A.2d 1047, 1050; State v. McKenna, 1998 ME 49, 3-4, 707 A.2d 1309, 1310; Field & Murray, Maine Evidence, §611.1 at 300-02 (2000 ed.).

* Error and Reversible Error.

For a claimed error to cause the Law Court to reverse a trial court result, the Law Court must decide two issues in the appellant’s favor: first, the Court must find that the trial court committed error, second, the Court must decide that the objecting party was prejudiced by the error. In re Joshua B., 2001 ME 115, 10, 776 A.2d 1240, 1243; see also Phillips v. Eastern Maine Med. Ctr., 565 A.2d 306, 308 (Me. 1989). Prejudice to justify reversal is found when a “substantial right” of the objecting party is affected by the error. State v. Burdick, 2001 ME 143, 30, 782 A.2d 319, 328; State v. Phillipo, 623 A.2d 1265, 1268 (Me. 1993); see also M.R. Civ. P. 61; M.R. Crim. P. 52(a); M.R. Evid. 103(a).

* Objection Usually Necessary to Preserve Error.

Most trial court or administrative agency rulings on the facts, the evidence, procedural matters or legal issues, must have been raised by opposition or objection in the trial court or administrative agency to be “preserved” so it may be considered on appeal. MP Assocs. v. Liberty, 2001 ME 22, 18, 771 A.2d 1040, 1046; Morey v. Stratton, 2000 ME 147, 8-9, 756 A.2d 496, 498-99; New England Whitewater Ctr. Inc. v. Dept. of Inland Fisheries and Wildlife, 550 A.2d 56, 58-61 (Me. 1988); Hale v. Petit, 438 A.2d 226, 232 (Me. 1981).

There is an exception to the rule that errors not “preserved” or argued are waived. This exception is for “obvious” errors, where a trial court ruling is obviously not correct as a matter of law and the ruling affects substantial rights. See M.R. Crim. P. 52(b); M.R. Evid. 103(e). This “obvious error” rule is infrequently applied in criminal cases and almost never applied in civil cases.

However, civil obvious error review is possible. See Morey, 2000 ME 147, 10-11 & n.3, 756 A.2d at 499.

* Harmless Error.

Any action of the trial court that is deemed to have been in error will also be reviewed by the “harmless error” standard set in the rules. See M.R. Civ. P. 61; M.R. Crim. P. 52(a); M.R. Evid. 103(a). This means that a trial court ruling, even if in error, will not result in reversal of the trial court’s judgment if the Law Court determines that the error was “harmless” that is, that the error did not result in substantial injustice or affect substantial rights.

The distinctions between harmless error and obvious error, and what makes either error reversible on appeal were addressed in In re Joshua B., 2001 ME 115, 9-11, 776 A.2d at 1243-44. A trial error is harmless “when it is highly probable that it did not affect the jury’s verdict.” State v. DeMass, 2000 ME 4, -17, 743 A.2d 233, 237; see also Phillips v. E. Maine Med. Ctr., 565 A.2d 306, 308 (Me. 1989). When an error in a criminal case is viewed as one affecting constitutional rights, the appropriate harmless error inquiry is whether, upon review of the whole record, the Court is satisfied beyond a reasonable doubt that the error did not affect substantial rights or contribute to the verdict obtained. See State v. Warren, 1998 ME 136, 17, 711 A.2d 851, 857-58.

An unpreserved trial error is “obvious” when the Law Court regards it as depriving the party of a fair trial or resulting in such a serious injustice that the Court cannot in good conscience let the judgment stand. State v. White, 2002 ME 122, 8, 804 A.2d 1146, 1149; In re Joshua B., 2001 ME 115, 11, 776 A.2d at 1243-44.