“OBJECTION” is a phrase so synonymous with lawyers that, should you mention to anyone that you are either in law school or a practicing litigator, they will at some point during an initial conversation utter “I object” to you. Although I am more than sure we have all spent hours watching law-related films or Law and Order episodes, what exactly is an objection? We learn in the average evidence course that an objection is a phrase uttered to prevent inadmissible material from entering the trial. However, they are far greater than just the admission of evidence and its consequences. On the standard of review of an appellate court, they can be fatal to a case.

1. What is an Objection?

An objection is “a formal statement [made by a party] opposing something that has occurred, or is about to occur, in court and seeking the judge’s immediate ruling on the point.”[1] In simpler terms, an objection could occur when one party  “think[s] the other side is doing something improper,”[2] such as introducing inadmissible hearsay, irrelevant evidence or the trial court itself has committed a mistake that requires immediate correction.[3]

2. Purpose of an Objection?

An objection is meant to prevent evidence that is harmful to your case from entering the trial[4], avoid the potentiality of a retrial,[5] and to preserve potential claims of error for appellate review.[6]

3. To Object or Not to Object?

One should object to prevent harmful material from being admitted. However, does this mean you should object during the trial proceeding anytime that your opposing counsel attempts to question a witness or introduce evidence? Of course not. There are various statutory and perceptual reasons why one should not object. First, under the Federal Rules of Evidence (FRE) or Federal Rules of Criminal Procedure (FRCP), there might not be grounds to object to the evidence being admitted. Second, the evidence being admitted is not harmful and at times may even support the theory of your case.[7] Third, the jury may view an objection as “disruptive and dilatory tactic” meant to conceal important details[8] and will not take kindly to having information withheld.[9] Lastly, frivolous objections usually do not sit well with the trial court.[10]

Rather than aimlessly objecting to frustrate your opposing counsel, familiarize yourself with the case file, the FRE and FRCP, and the types of objections that can be made ranging from hearsay to leading questions. By doing this, you can anticipate potential questions that your opposing counsel may attempt to use to admit possibly inadmissible evidence.

4. Consequences of Either Not Objecting or Failing to Make a Specific Objection

Let’s say that at trial, you either do not object or make a general objection to a question by opposing counsel which is overruled. The evidence was inadmissible hearsay and has now led to an unfavorable outcome for your client. What do you do next? File an appeal on the issue, write a brief, and prepare for oral argument. Surely the appellate court will reverse the erroneous judgment, right? Maybe. Issues raised for the first time at the appellate court level are either not considered or reviewed under the “plain error” standard.[11] In general, federal courts are reluctant to reverse lower court judgments when an issue is raised on appeal.[12]

Now, bear in mind, this article provides a general overview on objections and appellate review as each state and federal circuit court of appeals has their own criteria on the matter respectively. However, to demonstrate an example, this article will focus on the United States Second Circuit Court of Appeals interpretation and application of the FRE and FRCP.

5. Standards of Appellate Review in the Second Circuit Court of Appeals

The Second Circuit Court of Appeals like all other federal courts throughout the country must adhere to the FRE and FRCP. Under FRE 103(a):

A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.[13]

The Second Circuit has generally applied FRE 103(a), requiring lawyers to make their objection prior to the witness responding to the question and state the specific reason why the objection is being made.[14] Under FRCP 51(b), “A party may preserve a claim of error by informing the court…of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection… A ruling or order that admits or excludes evidence is governed by Federal Rule of Evidence 103.[15]

When a timely and specific objection is made and overruled by a district court judge, the harmless error standard of review will apply.[16] However, a failure to object or raising an issue for the first time on appeal causes the Second Circuit to review the issue under the strict plain error standard. In order to satisfy the plain error standard, the issue must be an “(1) error (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings”.[17] An error that seriously affects the fairness, integrity, or public reputation of judicial proceedings far exceeds the harmless error standard because not only must the error have been harmful but to such a degree that to uphold it would impinge upon the integrity of the judicial system. Therefore, “[t]he error that may be grounds for reversal under [the harmless error standard] may be insignificant under [the plain error standard].”[18]

For instance, in U.S. v. Johnson, the defendant was charged with conspiracy to distribute narcotics[19]. During trial, a government Drug Enforcement Administration (DEA) special agent testified against the defendant.[20] The DEA agent’s testimony contained his own belief in the defendant’s guilt, assertions of the defendant’s drug dealing practices although, he did not directly witness them, vouched for other governmental witnesses, and “replete with hearsay”.[21] Defense counsel failed to object[22] and the defendant was convicted.[23] The Second Circuit stated that “where the defendant did not object,” the issue will be reviewed under the “plain error” standard.[24] In addition, the court highlighted that the agent’s testimony was “an abusive disregard of the rules”.[25] Nevertheless, the Second Circuit upheld the defendant’s conviction and stated “[h]ad there been an objection or even slightly less conclusive proof, we might well have been compelled to vacate the conviction.[26]

6. Conclusion

While the “plain error” standard may frighten an individual to object to every single question or misconduct that is under the sun, the intent of this article is not to frighten, but rather to encourage students to be aware of these potential burdens, and to prepare themselves. Preparation can take many forms such as joining a mock trial team, taking a trial advocacy course, or watching actual trials. To quote Professor Hatcliffe, “to be a good trial attorney, you have to make quick decisions. You are best equipped for this when you are prepared, know your case, and know what you want from each witness.”[27]

[1] Objection, Black’s Law Dictionary (11th ed. 2019).

[2] Jared Hatcliffe, Trial Advocacy: The Art of Storytelling 178 (Carolina Academic Press ed., 2022).

[3] Tessa l. dysart et al., Winning on appeal: better briefs and oral argument 49 (Wolters Kluwer ed., 2017).

[4] Hatcliffe, supra note 2, at 178.

[5] Robert E. Larson, Navigating the Federal Trial §3.3 (Thomson Reuters ed., 2022).

[6] Bennet L. Gershman, Criminal Trial Error and Misconduct 498 (Matthew Bender ed., 3rd ed. 2015).

[7] Hatcliffe, supra note 2, at 179.

[8] Gershman, supra note 6, at 500.

[9] Hatcliffe, supra note 2, at 179.

[10] See generally Gershman, supra note 6, at 501 (discussing an attorney’s reluctance to object to a trial judge’s questions because it may “antagonize the judge.”).

[11] dysart et al., supra note 3, at 50-51.

[12] See generally Id. at 9-10 (stating that from 1998 to 2015, the odds of reversing a federal district court judgment on appeal was “1 in 10”).

[13] Fed. R. Civ. P. 103(a).

[14] Robert a Barker & Vincent C. Alexander, Evidence in New York State and Federal Courts §1.10 (Thomson Reuters ed., 2nd. 2022).

[15] Fed. R. Crim. P. 51(b).

[16] Id. at 52(a).

[17] U.S. v. Riggi, 541 F.3d 94, 102 (2d Cir. 2008)(emphasis added); Rasanen v. Doe, 723 F.3d 325, 333 (2d Cir. 2013)(plain error “should only be invoked with extreme caution in the civil context.”).

[18] dysart et al., supra note 3, at 51.

[19] U.S. v. Johnson, 529 F.3d 493, 494 (2d Cir. 2008).

[20] Id. at 497-98.

[21] Id. at 499.

[22] Id. at 501.

[23] Id. at 494.

[24] Id. at 501.

[25] Johnson, 529 F.3d at 503.

[26] Id. (emphasis added).

[27] Hatcliffe, supra note 2, at 179.