EVIDENCE PROCEDURES & RULES FOR HANDLING EVIDENCE OBJECTIONS
From MN Bench Book - Trial Procedures & Practices for Judges
EVIDENTIARY ISSUES AT TRIAL
THE FOLLOWING RULES, PRACTICES AND PROCEDURES WERE DEVELOPED AND ARTICULATED BY JUDGE JAMES MORROW, A RETIRED DISTRICT COURT JUDGE FROM MINNESOTA, JUDGE FRED KARASOV A DISTRICT COURT JUDGE IN MINNESOTA AND EMERITUS PROFESSOR STEVE SIMON.
THESE RULES AND PROCEDURES ADDRESS HOW EVIDENCE ISSUES SHOULD BE MANAGED AND HOW RULINGS ON EVIDENCE SHOULD BE MADE. THEY DO NOT ADDRESS THE SUBSTANCE OF OBJECTIONS AND RULINGS, RATHER THEY ADDRESS FAIR AND EFFICIENT PROCEDURES A JUDGE CAN USE TO RULE ON OBJECTIONS.
GENREAL PRINCIPLES THE TRIAL JUDGE IS THE ADMINISTRATOR OF JUSTICE THE TRIAL JUDGE IS THE ADMINISTRATOR OF JUSTICE AND HAS AN AFFIRMATIVE OBLIGATION TO KEEP COUNSEL WITHIN BOUNDS AND TO INSURE THAT THE CASE IS DECIDED ON THE BASIS OF RELEVANT EVIDENCE AND THE PROPER INFERENCES THEREFROM, NOT ON THE BASIS OF IRRELEVANT OR PREJUDICIAL MATTERS 
SPECIAL FUNCTIONS OF THE TRIAL JUDGE ABA PROFESSIONAL STANDARDS
Standard 6-1.1. General responsibility of the trial judge(a) The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose.
FEDERAL RULES OF EVIDENCE
RULE 102. These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
1. ENCOURAGE ATTORNEYS TO BRING MOTIONS IN LIMINE FOR DIFFICULT, COMPLEX OR OUTCOME DETERMINATIVE EVIDENTIARY ISSUES. CLAIRIFY THAT MOTIONS IN LIMINE ARE NOT LIMITED TO CONSTITUTIONAL ISSUES.
2. REQUIRE ATTORNEYS TO PRE-MARK EXHIBITS. CLARIFY YOUR DESIRED METHOD OF MARKING EXHIBITS. MANY JURISDICTIONS ARE NOW JUST USING NUMBERS; ASSIGNING A SET OF NUMBERS TO ONE SIDE AND THE SUCCESSIVE SET OF NUMBERS TO THE OTHER SIDE. E.G. THE PLAINTIFF HAS 1 THROUGH 100 AND THE DEFENSE HAS 101. THROUGH 200. Require attorneys to refer to exhibits by their number when referring to an exhibit.
This is crucial to create a clear record. If an attorney begins to lay foundation for a physical exhibit without referring to the exhibit's number, interrupt the attorney and ask them to state the exhibit number.
3. STATE YOUR COURTROOM GROUND RULES IN ADVANCE. ATTORNEYS BELIEVE IT "LEVELS THE PLAYING FIELD" IF THEY AND THEIR OPPONENT HEAR THE TRIAL RULES AT THE SAME TIME FROM THE JUDGE. CONSIDER GOING OVER THE GROUND AND TRIAL RULES IN THE COURTROOM WITH THE JURY PRESENT. IF THE ATTORNEYS KNOW THE JURY KNOWS THE RULES THEY WILL BE MUCH MORE LIKELY TO FOLLOW THEM.
COMMON TRIAL RULES:
- What movement you allow in the courtroom;
- Whether or not (and in what form) you want attorneys to request permission to approach a witness;
- The timing and method of marking exhibits;
- Whether or not you allow speaking objections;
- Whether or not motions or other requests are to be made in presence and hearing of the jury
- Clarify that nothing stated by the judge, attorneys or a witness during the trial in the courtroom will be stricken from the record.
- Inform the attorneys that it is not necessary for them to thank you for your rulings
RULE EXPLICITLY USE ACTIVE VOICE, SAY; “OVERULED” OR “SUSTAINED” DO NOT SAY; “I AM GOING TO OVER RULE THAT OBJECTION” DO NOT SAY; “ASK ANOTHER QUESTION” OR “RE-PHRASE YOUR QUESTION.”
5. WHEN YOUR RULING IS CLEAR AND YOU ARE CONFIDENT IN IT, RULE WITHOUT ASKING THE OPPOSING ATTORNEY TO RESPOND. THAT BEING SAID YOU SHOULD GIVE OPPOSING COUNSEL AN OPPORTUNITY TO RESPOND ON OBJECTIONS ON SIGNIFICANT OR OUTCOME DETERMINATIVE EVIDENTIARY ISSUES.
6. OTHER THAN STATING YOUR RULING ON A SPECIFIC OBJECTION WHERE THE GROUNDS HAVE BEEN CLEARLY ARTICULATED, JUDGES SHOULD SELDOM EXPLAIN THE BASIS FOR HIS OR HER RULING ON AN OBJECTION. SUCH EXPLANATION OR ANALYSIS SHOULD NOT BE DONE IN THE PRESENCE OR HEARING OF THE JURY.
7. IF YOUR RULING EXCLUDES EVIDENCE, YOU MAY GRANT THE PROPONENT OF THE EXCLUDED EVIDENCE AN OPPORTUNITY TO MAKE AN OFFER OF PROOF AS TO THE ADMISSIBILITY OF THE EXCLUDED EVIDENCE. THIS IS FACT BASED AND NOT BASED ON AN ARGUMENT ON THE RULE EVIDENCE(S) YOU APPLIED TO MAKE YOUR RULING.
8. WHEN AN ATTORNEY MAKES A SPEAKING OBJECTION, AND YOUR GROUND RULES STATED THAT ATTORNEYS SHALL NOT MAKE SPEAKING OBJECTIONS, IT IS PROPER TO INTERRUPT THE ATTORNEY AND REQUIRE THEM TO STATE THE GROUND(S) FOR THEIR OBJECTION.
9. WHEN AN OBJECTION IS MADE AND MULTIPLE GROUNDS ARE STATED, EXPLAIN THE BASIS FOR YOUR RULING IF YOU ARE SUSTAINING THE OBJECTION. ANALYZE THE OBJECTION STARTING WITH THE SIMPLEST NON-CONSTITUTIONAL GROUNDS FIRST.
10. DO NOT REACT VISIBLY TO QUESTIONS OR OBJECTIONS. AVOID SARCASTIC QUIPS, VOCAL INFLECTIONS, FACIAL EXPRESSIONS AND GESTURES THAT MIGHT GIVE THE APPEARANCE OF SCOLDING OR FAVORING ONE SIDE OR THE OTHER. IF YOU HAVE TO REACT, DO IT IN CHAMBERS.
11. IT IS NOT NECESSARY TO GRANT EVERY REQUEST TO APPROACH THE BENCH, MANY ATTORNEYS WILL MAKE SUCH A REQUEST AFTER LOSING AN ADVERSE RULING ON OBJECTION. IF YOU AS THE JUDGE NEVER DENY A REQUEST TO APPROACH THE BENCH THE ATTORNEY IS NOW CONTROLLING THE TRIAL NOT YOU.
12. WHEN AN OBJECTION IS MADE (and if the objection is made succinctly; the grounds stated in one two or three words) AND YOU BELIEVE IT IS NECESSARY TO GIVE OPPOSING COUNSEL AN OPPORTUNITY TO RESPOND TO THE OBJECTION, THE RESPONSE WILL IN ALMOST ALL SITUATIONS, INVOLVE AN ARGUMENT MUCH LONGER THAN THE INITIAL OBJECTION. THE RESPONSE SHOULD BE AT THE BENCH, AS ATTORNEYS SHOULD NOT ARGUE OBJECTIONS IN FRONT OF THE JURY. BENCH CONFERENCES SLOW THE TRIAL DOWN. TO AVOID THIS DELAY, YOU CAN INFORM THE OPPOSING ATTORNEY, THAT THEY MAY, ON THE RECORD, RESPOND AND ARGUE THE OBJECTION DURING THE NEXT BREAK. THIS IS A DIFFICULT AREA AND IF THE EVIDENTIARY ISSUE IS CENTRAL AND OUT COME DETERMATIVE, THE OPPOSING ATTORNEY SHOULD BE GIVEN AN OPPORTUNITY TO RESPOND IMMEDIATELY AT THE BENCH.
13. SIDEBAR AND CHAMBERS DISCUSSIONS, IF NOT CONTEMPORANEOUSLY PUT ON THE RECORD, SHOULD ALWAYS BE SUBSEQUENTLY PUT ON THE RECORD. THE JUDGE CAN PUT A SUMMARY OF WHAT WAS SAID AT THE SIDE BAR OR IN CHAMBERS ON THE RECORD, GIVING THE ATTORNEYS THE OPPORTUNITY TO ADD OR CORRECT ANYTHING SAID BY THE JUDGE.
14. WHEN A FOUNDATION OBJECTION IS SUSTAINED BASED ON THE CASE LAW OF MOST JURISDICTIONS, IT IS PROPER TO REQUIRE THE OBJECTOR TO STATE WHERE FOUNDATION IS LACKING. DOING SO ALLOWS THE PROPONENT OF THE EVIDENCE TO ATTEMPT TO CURE THE FOUNDATION DEFECT. THIS RULE ALLOWS FOR THE QUICK ESTABLISHMENT OF THE MISSING GROUNDS.
15. WHEN A LAY WITNESS HEARS “THE QUESTION DID YOU DO SOMETHING?” PSYCHOLOGICALY, IN THEIR MIND, THEY HEAR “TELL US WHAT YOU DID.” MANY OPPOSING ATTORNEYS WILL OBJECT TO THE WITNESSES ANSWER ON THE GROUNDS; “NON-RESPONSIVE, AFTER THE WORD YES OR NO.” MOST JUDGES WILL OVER RULE SUCH AN OBJECTION FOR A LAY WITNESS. WHEN POLICE OFFICERS HEAR THE SAME QUESTION, AND KNOWINGLY TELL THE JURY WHAT THEY DID, OFTEN GOING ON EXTENSIVELY IN THEIR ANSWER. SOME JUDGES WILL SUSTAIN A NON-RESPONSIVE OBJECTION TO A POLICE OFFICER WHEN THEY RESPOND TO “DID YO DO SOMETHING WITH A NARRATIVE.
16. REVERSING A PRIOR RULING. IT IS A SIGN OF STRENGTH, NOT WEAKNESS, TO INFORM THE ATTORNEYS DURING A TRIAL THAT YOU HAVE THOUGHT ABOUT A PRIOR RULING AND WANT TO REVERSE IT. ATTORNEYS GIVE JUDGES SIGNIFICANT RESPECT FOR DOING THIS. IT TELLS THE ATTORNEYS THAT THE JUDGE IS THINKING ABOUT CASE AND THE EVIDENTIARY RULINGS AND THAT THE JUDGE WANTS TO RULE PROPERLY.
17. WHEN AN ATTORNEY STATES THE WRONG GROUNDS FOR AN OBJECTION IT IS A COMMON RESPONSE AMONG MOST JUDGE TO STATE; “OVER RULED ON THOSE GROUNDS.” THIS “TELGRAPHS” TO THE OBJECTING ATTORNEY THAT AN OBJECTION IS PROPER HERE, BUT HE OR SHE HAS STATED THE WRONG GROUNDS. SOME JUDGES WILL NOT USE THIS DYNAMIC AND SIMPLY OVER RULE THE OBJECTION. THIS IS PERHAPS TOO SIMPLISTIC AN APPROACH AS THE OBJECTION MAY BE TO A SIGNIFICANT EVIDENTIARY ISSUE OR PIECE OF EVIDENCE. REMEMBER RULE 102 STATES “THAT THE RULES OF EVIDENCE SHALL BE CONSTRUED TO SECURE FAIRNESS IN ADMINISTRATION, ……..TO THE END THAT THE TRUTH MAY BE ASCERTAINED AND THE PROCEEDINGS JUSTILY DETERMINED”
18. WHEN AN OBJECTION SHOULD BE MADE BUT IS NOT, IF THE ANSWER COULD BE OUTCOME DETERMINATIVE, YOU CAN INTERVENE WITHOUT AN OBJECTION AND STATE THE ANSWER IS NOT ADMISSIBLE STATING THE GROUNDS. IT IS SAFE TO DO THIS FOR THE DEFENSE IT SHOULD NOT BE DONE FOR THE STATE
THIS AUTHORITY TO INTERVENE IN THE ABSENCE OF AN OBJECTION IS BASED ON THE FOLLOWING: -SPECIAL FUNCTIONS OF THE TRIAL JUDGE ABA PROFESSIONAL STANDARDS Standard 6-1.1. General responsibility of the trial judge(a) The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose.
-The trial judge is not a passive moderator at a free-for-all. The trial judge is the administrator of justice and has an affirmative obligation to keep counsel within bounds and to insure that the case is decided on the basis of relevant evidence and the proper inferences therefrom, not on the basis of irrelevant or prejudicial matters. 
19. IF YOU SUSTAIN AN OBJECTION TO AN ANSWER AND THE OBJECTING ATTORNEY REQUESTS TO STRIKE THE ANSWER, EXPLAIN TO THE ATTORNEYS, AT THE BENCH, THAT ANY STATEMENT BY A WITNESS WHILE ON THE WITNESS STAND WILL REMAIN A PERMANENT PART OF THE RECORD. THE JURY MAY BE INSTRUCTED TO DISREGARD THE ANSWER BUT THE ANSWER WILL REMAIN PART OF THE RECORD.
20. THE FOLLOWING EXCELLENT INSTRUCTION TO DISREGARD A STATEMENT OR ACTION OF A WITNESS OR OTHER EVENT IN THE COURTROOM WAS WRITTEN BY JUDGE GORDON SHUMAKER, RETIRED JUDGE MINNESOTA COURT OF APPEALS STATES:
INSTRUCTION TO DISREGARD
“If I tell you to disregard an answer, other testimony or behavior you have already heard or seen, you must do so. Such testimony or behavior is no longer a proper part of the case and you cannot fairly consider it as such. You might wonder how you can disregard something you have already heard. Here is a way to do it: At the end of the trial, back in the jury room, you will likely tally up, or summarize, all the evidence in the case. From that evidence alone you will decide upon a verdict. Anything I have told you to disregard will simply not be included in the evidence upon which you base your verdict. It will not be part of your discussions and in your own consideration, evaluation and assessment of the evidence, you cannot consider the words or actions I have instructed you to disregard. You will not use it, in deciding the guilt or innocence of the defendant, in any way. In that sense, you will have disregarded the item.”
21. USE AND BE FAMILIAR WITH RULES 104 & 611
Rule 104 – Preliminary Questions
- (a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
- (this means that if the admissibility of a piece of evidence depends on a question of fact, the judge is not bound by the rules of evidence in determining the predicate fact- for example if there is a question of whether a person has necessary qualifications to be an expert, the judge can rely on hearsay statements and documents about the witnesses qualifications to make that determination)
- (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
- (c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
- (1) the hearing involves the admissibility of a confession;
- (2) a defendant in a criminal case is a witness and so requests; or
- (3) justice so requires.
- (d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
- (e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
- State v. Salitros 499 N.W.2d 815, Minn.,1993
- State v. Salitros 499 N.W.2d 815, Minn.,1993