To be timely, an objection to inadmissible evidence must be made at the earliest opportunity. 3 Witkin, California Evidence, Presentation at Trial §384 (5th ed).
When it comes to tangible evidence, the earliest opportunity means at the time it’s first offered into evidence.
When an objection is to testimony, it usually must be raised before the improper question is answered. You can’t speculate on getting a favorable answer to an improper question and then object if the answer proves unfavorable. Similarly, you can’t sit through voir dire examination of the jury without objecting and complain only after receiving an unfavorable verdict.
But you don’t need to be clairvoyant. That is, you’re not expected to object to a question before it’s answered if it’s not apparent until the answer that the evidence is inadmissible. But in that situation, once you hear the answer, you have to move to strike the evidence immediately. Evid C §353(a).
Nor do you need to speak at lightening speed. Sometimes, a witness will answer before you can interpose an objection. To avoid waiving the error in this situation, you must immediately object to the question and move to strike the answer. Evid C §353(a). If your motion to strike is granted, request that the judge admonish the jury to disregard the answer. If the witness (perhaps wrongfully coached to do so) persists in giving rapid-fire replies, ask the judge to direct the witness to pause before answering to allow for possible objections.
Another way to stop the witness from answering too quickly is to attract the witness’s attention by raising a hand and then rising to state the objection. It may even be appropriate under some circumstances to say something like “Wait, please” to stop the witness before the answer is stated.
Of course, you must also react quickly if the witness, in responding to a proper question, injects damaging inadmissible matter in the answer. If the answer is nonresponsive, move to strike the nonresponsive parts of the answer. Evid C §766. You should also specify the ground that makes the answer improper and request that the jury be admonished to disregard that part of the answer that is stricken.
For everything you need to know about making objections to evidence at trial, turn to CEB’s California Trial Objections, chap 4. And get expert advice on the rules and common-sense strategies for objecting in CEB’s Objections: Best Practices for Objecting to Evidence at Trial, available On Demand.
Check out these other CEBblog™ posts on evidence topics.
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Filed under: Evidence, Legal Topics, Litigation Strategy, Trial Strategy | Tagged: admissibility, evidence, inadmissible evidence, objecting to question, objecting to witness response, trial attorney, trial objections, witness testimony |