Objection, motion to strike or motion in limine

An objection is not the only way to protest the admission of evidence. The attorney can object before trial in a motion in limine, or what until the question is asked, at which time the objection can be interposed. If the witness answers the question, a motion to strike may also be made.

Evidence Code section 353 prohibits setting aside a verdict or finding, or reversing a judgment due to the erroneous admission of evidence without an objection or a motion to exclude or strike on the record. (Evidence Code § 353(a).) The objection is typically used if the evidence has not come in while the motion to strike is used if the witness testifies before the attorney can object or before the trial court has an opportunity to rule on the objection. By then, the jury may have heard the evidence but at least the ground can be preserved for a later challenge on appeal.

If you are aware that the opposing party will seek to introduce certain damaging evidence, then you may want to use a motion in limine, which allows for a more in-depth discussion about the evidence and the law related to its admission or exclusion. “The advantage of such motions is to avoid the obviously futile attempt to ‘unring the bell’ in the event a motion to strike is granted in the proceedings before the jury.” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337.) Motions in limine can streamline trials so that the trial is not bogged down with objections, sidebar or in-chambers conferences, or hearings out of the presence of the jury, which might be milling around outside and frustrated with a delay that they know nothing about.

So, what is a proper objection?

To preserve an issue for appeal, the appellant must raise the objection below before the trial court. “‘The party also must cite to the record showing exactly where the objection was made.’” (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 948.) “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court . . . The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

The components of a proper objection are outlined in Evidence Code section 353: (1) it must be timely made, and (2) the specific ground of the objection must be included. “Section 353 does not specify the form in which an objection must be made; hence, the use of a continuing objection to a line of questioning would be proper under Section 353 just as it is under existing law.” (See Comment by Assembly Committee on Judiciary to Evidence Code section 353.) Typically, the attorney would use the word “objection” followed by the specific ground. Of course, there have been objections when that consist of “Objection” and “I object,” without the grounds stated, especially where the grounds may seem very obvious to all.

At a minimum, the attorney must state the grounds for an objection. Evidence Code § 353(a). “Evidence Code section 353 does not exalt form over substance. No particular form of objection or motion is required; it is sufficient that the presentation contains a request to exclude specific evidence on the specific legal ground urged on appeal.” People v. Morris (1991) 53 Cal.3d 152, 188 (disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1).

Interposing objections requires an attorney to be quick on his or her feet. After all, it does little good to ponder whether a question is objectionable but wait before making it until seven questions later. It may be untimely and worst yet, it may be impossible to undo the damage of the jury having heard the evidence.

And making an objection on the wrong ground may not help you on appeal. It is not enough that you made a general objection without a ground or objected on a different ground. If you object on one ground, that will not preserve the objection on another ground. (People v. Holt (1997) 15 Cal.4th 619, 669, modified at 15 Cal.4th 1385A.) Nor should you rely on a “continuing objection” to preserve the error. Be clear in making a specific objection to the evidence and possibly renew the objection when the questioning exceeds the scope of your original objection or too much time has passed since the original objection.

And what do you do in the event you want to object to a line of questions? A “continuing” objection to certain evidence or a line of questioning may not be necessary, but the objection should relate to the same ground. If you have a new objection on another ground, you should state it as an objection with the new objection, including the specific grounds. (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 285.) Be careful if the later questions are different in nature, especially where they cover different subject matter and are objectionable on different grounds. (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1676 [objection should relate to “a particular, identifiable body of evidence”].)

While the Supreme Court has indicated that the rule that objections not made are forfeited is not automatic, it also noted “the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) That means don’t depend on it, but if you can show some special circumstances, this rule of forfeiture may not be applied in your case.

The erosion of the jury system

When I was a kid, my grandfather, who immigrated to America from Greece and became a U.S. citizen, talked with such pride about the jury system. He couldn't imagine turning down a request for jury service, believing it was the highest form of a compliment that he could help decide a case in America. He thought it was a fascinating way to spend his time and I imagine if the courts had sought volunteers, he would have been the first in line, dragging me along when I reached an appropriate age.

Now that I am a lawyer and have been for most of my life - or so it seems - I have come to value the jury system as providing a forum for litigants to have disputes decided without any fear that the jury could be bought, threatened, or bribed. The jurors would come together as strangers, having no incentive to rule one way or another, except to apply the rules of law and bring with them a sense of fairness, to reach a decision.

In a recent article in the L.A. Times, reporter Carol J. Williams writes about the loss of potential jurors, which she believes is due partly to the recession. I think the problem is much broader because I think many of us lead such busy lives that we have little time to insert an extra eight hours into our day (maybe several days or weeks) to hear a jury case for impossibly low compensation. But the recession no doubt has had a significant impact on our citizens' willingness to serve. And, as Ms. Williams notes, potential jurors are getting openly hostile in getting their point across. If you are unemployed, do you really want to spend those hours - when businesses are open and available to consider employing you - locked in a courtroom where one or more plaintiffs are seeking a big bundle of money from one or more defendants> Money which you, potential juror, will never see or even get a slice of. For me, I can't even watch T.V. or movies for that long without squirming around.

And if you are lucky to have a job, there is always the fear of keeping that job, which could be jeopardized by your absence while attending a trial. This is especially true when the compensation for jury service is exceptionally low - under $40 - and no one serves on a jury to get rich. Now, of course, the attorneys and judge will thank you for your time, but that doesn't help when your employer is wondering how to fill the void your absence has created. And it doesn't help when the lawyers want to take days for voir dire or you observe unnecessary delays caused by sidebars, objections, and hearings outside the presence of jury. No wonder some judges are very tough when it comes to wasting the jury's time.

If you are an attorney or a party, do you really want to face those angry jurors? Of course not! The risks of litigation are mounting and jury impatience and anger can now be added to the list. The parties and attorneys profiled in Ms. Williams's article chose a court trial. They could have just as easily chosen arbitration or mediation. This is especially true if the trial is going to take a long time, involves complex theories, or unpopular themes. Perhaps that is one explanation of why more parties are opting for dispute resolution alternatives. Jurors seem to be saying, "If you have a private dispute or problem, find a way to solve it that doesn't involve me." And now, unlike my grandfather's day, there may be a penalty for doing so.

If you would like to read the article, you can find it here: http://www.latimes.com/news/local/la-me-reluctant-jurors15-2010feb15,0,824472.story

More on objections to preserve the record on appeal

If you don’t object, how can the error be corrected?

At the appellate level, an objection is necessary to show that objector did everything possible to correct the error by alerting the court and opposing counsel of the problem. Such an objection, if sustained, would have the effect of correcting the problem, while an overruled objection may not help at the trial level but at least will protect the record on appeal.

The failure to object and follow through can have fatal consequences to an appeal.

The failure to object and to take all steps necessary to properly follow through with an objection has serious consequences on appeal. It means that the error to which the objection might have been made is waived and cannot be challenged on appeal. “In light of this section [353], questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection.” (Leonardini v. Shell Oil Co. (1989) 216 Cal. App.3d 547, 584; Gallant v. City of Carson (2995) 128 Cal.App.4th 705, 710.)

The courts have made exceptions where the record shows that continued objections would be an idle act or the court refuses to rule on the objections, but you must still make a diligent effort to obtain a ruling. (City of Long Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780, 784-785.)

Preserving your objections for appeal

If you have complied with California Rules of Court, rule 3.1354(c) (and kept your objections down to a sensible number), then the judge will have a printed order with a space to make those rulings. It should be harder to overlook that duty or forget it during the hearing. Certainly you don’t want to waive the objection but neither do you want to annoy the judge by making repeated requests for a ruling. How many requests are enough? Well, I wouldn’t stop at one. A request should be made when the objections are discussed, and if nothing happens, at the conclusion of the hearing. If the trial court is refusing to rule, you want that refusal on the record.

In City of Long Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780, Justice Turner opined that two requests were enough to overcome a waiver argument, noting “Frankly, in this case, there was nothing further defense counsel could be expected to do in terms of seeking rulings on the previously filed evidentiary objections beyond personally raising the issue on two separate occasions in the presence of the trial court. It [] has been held that issues are preserved for review when it would be fruitless or an idle act for an attorney to object.” (Id. at p. 784.) What is a futile act may depend on the record, but the attorney should make every attempt to get an actual refusal to rule on the record, rather than open up the failure to rule to the possibility it was simply a matter of forgetfulness.

The magic number was three requests in Vineyard Springs Estates, LLC v. Superior Court (2004) 120 Cal.App.4th 633. The Third Appellate District issued a writ of mandate, requiring the trial court to fulfill its mandatory duty to rule on defendant’s evidentiary objections. As noted in Vineyard, how can a trial court fulfill its duty of specifying the evidence that supports its decision, as required by Code of Civil Procedure section 437c. “A trial court cannot faithfully carry out this mandate if it has not considered all objections to proffered evidence and ruled on their merits.” (Id. at p. 642.)

Objections are important on two levels, during trial and when the case is on appeal. At trial, the attorney is concerned with having some control over the flow of the trial, and especially, the testimony and other evidence. Generally, the goal is to keep out certain evidence or restrict the evidence presented by the opposing side.

Even before we became attorneys, we watched T.V. and movie attorneys objected vehemently during trial. Some of those objections were proper in form but usually the objection was fashioned to fulfill dramatic requirements. Unlike the world of movies, a proper objection must satisfy the procedural rules of the Code of Civil Procedure, as discussed below.

It is surprising to me how many attorneys will rely on a faulty memory to claim they objected below when a review of the reporter’s transcript often reveals that the objection has not been properly made or the attorney did not secure a ruling on the objection. No one likes to lose a good ground for appeal due to the failure to say a few magical words.