From MN Bench Book - Trial Procedures & Practices for Judges
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- 1 FORM AND METHOD
- 2 WHEN THE LAST QUESTION SHOULD BE RE-ASKED OR RE-READ TO ALLOW JURY TO ORIENT THEMSELVES TO WHERE THE WITNESS IS IN TERMS OF THEIR TESTIMONY
- 3 ALLOWING OPPOSING COUNSEL AN OPPORTUNITY TO RESPOND IF:
FORM AND METHOD
An objection to an improper question or proffered evidence must be timely. An objection to an improper question must be made before the witness answers, and an objection to improper evidence—testimonial or physical—must be made when the evidence is offered.
An objection must also be specific; an objection can be overruled for merely being too vague. Counsel must clearly state the legal grounds—the title or name of the rule—for the objection. Within that context, the level of specificity varies with the situation and with the judge. The key is that the court must be able to intelligently rule on the objection and the adverse party can attempt to cure the default. As well, when a portion of the testimony is objectionable, the objection must clearly delineate the proper and improper portions.
Several exceptions do exist. When a tardy or vague objection relates to a substantial constitutional issue, “technical niceties as to the time and form of objection should be disregarded.” Further, if a specific objection is properly made, subsequent objections to the same evidence with the same apparent grounds need only be general. Finally, Minnesota permits counsel to ask for a “continuing objection” to a series of related questions.
WHEN THE LAST QUESTION SHOULD BE RE-ASKED OR RE-READ TO ALLOW JURY TO ORIENT THEMSELVES TO WHERE THE WITNESS IS IN TERMS OF THEIR TESTIMONY
When an objection is overruled, the witness and the jury will frequently have forgotten the original question, or at least lost the context. If the witness has not yet answered, counsel is generally permitted to repeat the question. If the witness did initially respond, such that an answer is on the record, repetition is at the discretion of the court.
ALLOWING OPPOSING COUNSEL AN OPPORTUNITY TO RESPOND IF:
THE PROPER RULING IS CLEAR?
The court is not required to entertain arguments on trial objections.
THE ACTUAL RULING IS UNCLEAR?
While the trial judge should make his ruling clearly by stating either “sustained” or “overruled,” it is counsel’s responsibility to ensure that a clear ruling is given. When the ruling is ambiguous, counsel may request the court to specify with the words “sustained” or “overruled.” The court is required to respond categorically.
THE COURT’S REASONING IS NOT APPARENT?
Counsel is entitled, upon request, to a statement providing the grounds for the ruling. If the objection was to the form of the question, rather than the content of the answer, counsel may then properly rephrase his question.
INSTRUCTING ATTORNEYS ON FORM AND METHOD OF OBJECTIONS IN PRESENCE OF JURY
The court is permitted to correct counsel during the case. While it is preferable to do so without the jury present, the instructions can be given in the presence of the jury, provided that “it is done in such manner as not to subject counsel to ridicule or discrimination, or to prejudice the accused in the minds of the jurors.”
- The failure to make a timely objection presumptively operates as a waiver, because “the purpose of objecting to the admission of evidence is not merely to preserve error for appeal, but also to allow opposing counsel an opportunity to avoid error and more effectively prove a case or assert a defense.” Adelmann v. Elk River Lumber Co., 242 Minn. 388, 393, 65 N.W.2d 661 (1954). Because error may not be predicated upon a ruling which admits evidence unless a timely objection or motion to strike is made, Minn. R. Evid. 103(a)(1), the objection must be made as soon as the objectionable nature of the evidence is reasonably clear. The failure to object at that time will generally operate as a waiver of the objection unless there is an error in "fundamental law" or "plain error affecting substantial rights." State v. Fenney, 448 N.W.2d 54, 61 (Minn. 1989).
- 50 M.S.A., Rules of Evid., Rule 103(a)(1); CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 566 (Minn.App.2001), review denied (“An objection to the admission of evidence must be made at the time the evidence is offered.”); Carpenter v. Mattison, 300 Minn. 273, 279, 219 N.W.2d 625 (1974) (“Objection to inadmissible evidence must be made at time such evidence is introduced.”)
- “No reason exists why counsel if they deem offered evidence improper, should not state the specific ground of objection, instead of resorting to the elusive, and now well nigh obsolete, formula, 'incompetent, irrelevant and immaterial,' Objection of “incompetent, irrelevant and immaterial” is often not specific enough to advise court of the grounds for the objection.” Larson v. Anderson, 122 Minn. 39, 141 N.W. 847, 848 (Minn. 1913). See generally State v. Abraham, 338 N.W.2d 264 (Minn. 1983); Herbes v. Village of Holdingford, 267 Minn. 75, 125 N.W.2d 426 (Minn. 1963); Pleason Realty & Inv. Co. v. Kleinman, 165 Minn. 342, 206 N.W. 645 (Minn. 1925); State v. Pearson, 153 Minn. 32, 189 N.W. 404 (Minn. 1922); Thoreson v. Susens, 127 Minn. 84, 148 N.W. 891 (Minn. 1914); Bartleson v. Munson, 105 Minn. 348, 117 N.W. 512 (Minn. 1908).
- See Graves v. Bonness, 97 Minn. 278, 107 N.W. 163, 163–64 (Minn. 1906); see also Minn. Civ. Trialbook § 10(a) stating, “Lawyers shall state objections succinctly, stating only the specific legal grounds for the objection without argument…”
- At times, the legal grounds will be obvious from the context, in which case a vaguely worded objection can still be sustained. Bear in mind, however, that the grounds must be clear on the face of the record in order to preserve the issue for appeal. The adverse party has the duty and the right to elicit the specific grounds. 11 MNPRAC § 103.05; See Adelmann v. Elk River Lumber Co., 242 Minn. 388, 65 N.W.2d 661, 665 (Minn. 1954).
- There is a permissible range. “For instance, while some judges, loathing bench conferences, restrict objections to one-word condensations stated from the floor of the courtroom (e.g., hearsay, leading), others will permit a fuller explication, but usually at the bench.” 3 Crim. Prac. Manual § 81:9.
- “Objections to evidence offered must be so specific that the court may intelligently rule upon them, and the opposite party may, if the case admits of it, remove them by amendment or otherwise.” Merchants' Nat. Bank of Grand Forks, N.D. v. Barlow, 79 Minn. 234, 237, 82 N.W. 364 (Minn. 1900); see also Gilbert v. Thompson, 1869, 14 Minn. 544 (1869) (“An objection to testimony must be so definite as to enable the court to intelligently rule upon it, and the adverse party, if he so desires, and the case will permit, to remove the objection by other evidence.”)
- This is not specified as a separate technical requirement in Minnesota, but it is recognized nationally as an implicit part of the aforementioned rule. It is a practical necessity for enabling the court to make an intelligent ruling. Failure to delineate the admissible/challenged portions is sufficient grounds to deny the entire objection as being “too vague.” See, e.g., Givens v. State, 273 Ga. 818, 546 S.E.2d 509 (2001).
- “Upon appeal or in postconviction procedures, a conviction based in whole or in part upon evidence obtained in violation of the Federal constitutional rights of the defendant will be set aside even though no proper objection was made at the time of trial, if to do otherwise, in light of the record considered as a whole, would be to perpetuate a substantial and essential injustice in the sense that as a result an innocent man may have been convicted.” State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 550, 141 N.W.2d 3 (1965) (A confession was improperly admitted into evidence, but no objection was lodged at the time. The court granted review, and overturned the conviction.)
- The court, having properly sustained a specific objection to evidence offered as incompetent, may, without the specific objection being restated, sustain an objection to an offer of what is substantially the same evidence. Griswold v. Edson, 32 Minn. 436, 438, 21 N.W. 475 (1884); W. S. Conrad Co. v. St. Paul City Ry. Co., 130 Minn. 128, 130, 153 N.W. 256 (1915) (“Counsel, it is true, did not make a specific objection to every item of erroneous evidence offered, but the court and opposing counsel were well apprised of his precise claim.”)
- A continuing objection is sufficient to preserve the issue for appeal. See Briggs v. Chicago, Great Western Ry. Co., 238 Minn. 472, 495, 57 N.W.2d 572 (1953) (“We cannot agree with plaintiff's argument that no objections were timely made by defendant…The record shows a continuing objection as to certain questioning about medical textbooks on the part of defendant, as well as many objections during the course of the trial.”)
- This permission is very broad. The attorney is allowed to repeat the question, even when it appears that the witness remembers it. 23 Am. J. Trial Advoc. 559.
- The court has very wide discretion. The operative standard is typically whether or not the repetition would add to general clarity or greater certainty. If not, such that repeating the question is superfluous, repetition should be denied; if so, than repetition is permitted, but not required. 98 C.J.S. Witnesses § 412.
- See Minn. Civ. Trialbook § 10(a).
- “When ruling, the court should say either, "sustained," or "overruled," such words constituting clear and unambiguous rulings on counsel's objection as stated. Counsel must, of course, make his objection specific, concrete, and definite…” 6 AMJUR TRIALS 605 § 28; see also CJS TRIAL § 246 (“Improper evidence should be excluded in express terms or the intention of the court to exclude made clearly to appear…”).
- “Ultimately, however, it is the duty of counsel to keep the record free of error, especially when making objections…” 6 AMJUR TRIALS 605 § 28; see also CJS TRIAL § 246 (“[F]ailure to make a distinct ruling is not error where the statement by the court might be construed as a ruling and no request is made for a more distinct ruling…”); Bryan v. Barnett, 205 Ga. 94, 98, 52 S.E.2d 613 (Ga.,1949) (“Where a ruling of the court is not clear on the admission or exclusion of testimony, counsel has duty to call matter to court's attention and invoke a specific ruling.”).
- “[A]ny ambiguity in the court's ruling…should be clarified for the record. This may be accomplished by counsel making a query, such as: "Your Honor, is my objection sustained or denied?"” 6 AMJUR TRIALS 605 § 28.
- “Insofar as interrogating counsel is in doubt as to the basis upon which the court sustains such objection it is right to make inquiry of the court, and it is the court's duty to answer that inquiry.” Adelmann v. Elk River Lumber Co., 242 Minn. 388, 394, 65 N.W.2d 661 (1954); see also U.S. v. Stoehr, 100 F.Supp. 143, 154 (M.D. Penn.,1951), affirmed 196 F.2d 276, certiorari denied 73 S.Ct. 28, 344 U.S. 826, 97 L.Ed. 643 (“It is entirely proper for trial court to indicate to counsel basis for his rulings upon matters of evidence, not only in interest of fairness but for guidance of counsel in subsequent examination.”).
- See Adelmann v. Elk River Lumber Co., 242 Minn. 388, 65 N.W.2d 661, 666 (1954).
- CJS CRIMLAW § 1613: § 1613. Admonishing and correcting counsel.
- CJS CRIMLAW § 1613: § 1613. Admonishing and correcting counsel.