Keeping Evidence Out (Pre and Post Trial)
Evidence is an essential part of every case and the admission of evidence is an often overlooked part of any trial or proceeding. Thinking early and often on how to ensure key evidence will be admitted and how to begin the process to keeping evidence out should be a part of early trial preparation. If these considerations are in place early, it will impact every phase of litigation from discovery to summary judgment to the trial.
I will focus on Federal rules for the most part when discussing Rules of Evidence. Pennsylvania and New Jersey have substantially similar rules of evidence to the Federal Rules, but not completely identical. In addition, different judges may have their own procedures that need to be filed. As such, while this is meant as an overview, it is very important to become familiar with the controlling rules of evidence and procedure, as well as the local rules and the Judge’s own procedures.
A. Practical Application of the “Big Six” to Real-World Courtroom Events
As noted above, it is important to examine evidence early and often. Identifying the evidence an opposing party will want to admit is the first step in determining how to keep that evidence out. The three primary considerations for all pieces of evidence are: (1) Relevance (Fed. R. Evid. 401-415); (2) Authentication (Fed. R. Evid. 901-903); and (3) Admissibility, which is an analysis based on potentially categories: (a) privilege (Fed. R. Evid. 501-502); (b) witness testimony (Fed. R. Evid. 601-615); (c) opinion and expert testimony (Fed. R. Evid. 701-706); (d) hearsay (Fed. R. Evid. 801-807); and writings, recordings, and photographs (Fed. R. Evid. 1001-1008). It is important to consider all of these issues and look to the relevant rules to prepare your plan on how to keep problematic evidence out.
1. Hearsay Objections
A more indepth discussion of hearsay is part of this seminar, so this article will focus on practical issues related to the question “Is it Hearsay?” First, the question must be whether the question is calling for testimony to be offered “in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c)(2). As noted before, preparation will ensure that you know where a question is leading and you can be prepared to object. In addition, it is important to have analyzed the potential exclusions and be prepared to argue, if necessary, why none of the exceptions would apply. There are many exceptions allowing the admissibility of hearsay and it is difficult to spot an exception (or prepare arguments against applicability of an exception) during testimony.
Another key consideration is whether the declarant (the person making the original statement) is available or not. Different exceptions apply and whether a declarant can be forced to appear can greatly impact whether an exception applies. However, a practical consideration on this is, if the original declarant can appear, asking whether objecting and forcing the opposing party to bring in that witness is helpful. As such, even if a hearsay objection is available, it is worth considering if it is harmful (if not, as discussed below, it may make sense to not object for tactical reasons) and, even if harmful, would it be worse if the original declarant was a witness before the fact-finder. Many statements are weakened by having a second person report them versus the declarant testifying and being examined on their actual testimony. For example, a witness saying “my neighbor says he saw someone who looked like the defendant” versus “I saw that man at the house.” The second statement is more powerful. Generally, it is best to object to preserve the objection for appeal, but it is also worth considering the practical impact of an objection.
Finally, another consideration is hearsay objections to documents. A document can be authenticated and entered into via the document-custodian foundation, but that will not definitively resolve the question of hearsay. In such a case, objecting for hearsay and requesting a voir dire of the witness to determine personal knowledge and the lack of applicability of a hearsay exception is a good option. If the Court overrules the objection, you have preserved the issue for appeal in the record.
Similarly, sometimes parties will attempt to enter in the hearsay and assert that the foundation for the exception will be later shown. Courts may allow such testimony on the condition that such foundation be laid and, if not properly laid, will later instruct a jury to disregard. Objection to this approach is probably best, given the studies showing the difficulty in disregarding evidence and case law about the importance of establishing foundation prior to admission of hearsay evidence. See, e.g., U.S. v. Bolick, 917 F.2d 135 (4th Cir. 1990).
2. Motion in Limine, Motion to Exclude, and Motion to Strike
Motion in Limine – A motion in limine is a pretrial request to exclude evidence by having the evidence found to be inadmissible and barring that evidence at trial. These motions are especially important when the evidence is such that even reference to the existence of the motion can be prejudicial to your client. Motions in limine are not specifically provided for in the Federal Rules of Evidence. Federal Rule of Evidence 103, in regards to preserving appellate rights to objections, references “timely objects or moves to strike”. Fed. R. Evid. 103(a)(1)(A). In comparison, the similar Pennsylvania Rule of Evidence references “a timely objection, motion to strike, or motion in limine.” Pa. R. Evid. 103(a)(1)(A). As such, some federal courts and judges may disfavor the use of motions in limine.
Furthermore, even if a motion in limine is filed and decided, it may not be the end of the issue. First, if the Court denies the motion it must be “clearly and definitely” ruled upon. As such, many motions are denied as premature and, to preserve the issue for appeal, an objection during trial will be essential. See, e.g., Blumer v. Ford Motor Co., 20 A.3d 1222, 1233-34 (Pa Super. Ct. 2011), appeal denied 49 A.3d 441 (Pa. 2012); see also Fed. R. Evid. 103, Advisory Committee Notes – 2000 Amendments (“[W]hen the trial court appears to have reserved its ruling or to have indicated that the ruling is provisional, it makes sense to require the party to bring the issue to the court’s attention subsequently.”).
On the opposite side, if the motion is granted, but the evidence is admitted (or attempted to be admitted) despite the ruling, an objection must be made again. See Trach v. Fellin, 817 A.2d 1102, 1107 n.3 (Pa. Super. Ct. 2003), appeal denied 847 A.2d 1288 (Pa. 2004). This objection must be made before the evidence is admitted into evidence or may be considered waived. See Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d 579, 588 (Pa. Super. Ct. 2002) (“A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered.”).
Motion to Exclude – A motion to exclude is often very similar to a motion in limine. In some specific sections of law, there is a distinction between excluding evidence and ruling on the admissibility of evidence, but for many practitioners it is more about timing – a motion to exclude is filed during trial, while a motion in limine is filed prior to trial. However, motions in limine are also distinct in that, as discussed above, often will involve issues that are predicting events in court and therefore are somewhat more fluid and will often be reviewed throughout the trial. In comparison, a motion to exclude seeks a final ruling on some key issues. The most common issues are untimely disclosed evidence or experts not meeting the standard for expert testimony.
Exclusion of expert testimony is part of the Court’s “gatekeeper” function. The standard for excluding expert testimony is covered elsewhere in this seminar and differing standards apply in federal and Pennsylvania courts. Nonetheless, a Rule 702 motion seeking to exclude expert testimony is normally focused on the expert’s qualifications, reliability, and/or scientific/professional acceptance of expert techniques.
The other common motion to exclude is based on excluding evidence not properly disclosed. Under Federal Rule of Civil Procedure 37, a court may sanction a party who fails to disclose or supplement discovery (the so-called surprise evidence) through monetary sanctions, jury instructions, or other appropriate sanctions. Fed. R. Civ. P. 37(c)(1). There is an exception if the failure “was substantially justified or is harmless.” Fed. R. Civ. P. 37(c). Exclusion of evidence is an available sanction, but generally requires that the evidence be important; a true surprise; the party surprised cannot reasonably cure; and whether the evidence would disrupt the trial.
Motion to Strike – Motions to strike are used when the question itself did not call for inadmissible testimony (and therefore an objection was not appropriate), but the testimony itself makes the answer inadmissible. Similarly, if later in the trial evidence comes out that the foundation for evidence previously presented was not proper, a timely motion to strike must be made. As part of a motion to strike, you should also ask for a limiting instruction that the jury disregard the evidence (or for a mistrial if substantial).
3. Motions for Sanctions
Sanctions related to exclusion of evidence are rare and normally limited to three circumstances: (1) if an opponent hides, destroys, or fails to keep evidence during the pendency of a litigation, a party can seek sanctions in the form of a spoliation instruction (which is not excluding evidence but similar in nature); (2) failure to timely produce evidence and then attempts to use that evidence; and (3) opposing party disregards the court’s ruling excluding evidence. I have discussed the second issue above. In regards to the third issue, if a party simply defies a court’s evidentiary decision, a party should seek sanctions immediately, including a mistrial and costs (not just a curative instruction). Due to the extreme nature of a sanction motion, a party seeking sanctions should be prepared to provide proof that the evidence related to the sanctions is prejudicial, a true surprise, and the bad faith conduct of the opposing party. In addition, it is not enough to merely show, in context of challenging a court’s prior decision, that the opposing party sought to admit testimony previously ruled to be inadmissible. In fact, it is essential, if the facts support such an effort to do just that. For example, if a motion in limine excludes evidence but testimony of an opposing witness introduces an issue making it admissible, then reviewing that evidence’s admissibility is important. A motion for sanctions should be limited to when the opposing party is flagrantly defying court decisions either by reintroducing the same argument with no basis for reconsideration or just ignoring decisions or using tricks to attempt to have evidence admitted that is otherwise inadmissible.
4. Curtailing Speaking Objections
A speaking objection in the context of trial versus deposition are slightly different. This seminar is addressing speaking objections in the context of a trial. A speaking objection at trial is where counsel objects in such a manner as to make an argument to the jury in the guise of an objection. For example, an objection to a document that has damaging statements could be: “Objection hearsay, the author of this document is entirely unknown and his motives could be suspect, but we have no way of knowing what he was thinking.” Obviously, the goal there is to present to the jury that the author of the document may have ulterior motives. In effect, a speaking objection is when you go beyond the grounds for the objection and make arguments, especially those of a factual nature. Other examples from McElhaney’s Trial Notebook include:
· Objection, Your Honor. The jury cannot evaluate the credibility of the speaker who is not in court, hearsay.
· Objection, Your Honor. The question tells the witness how to answer, leading.
· Objection, Your Honor, it is unfair for counsel to discuss a document not present in court. That is not the best evidence.
· Objection, Your Honor. The question calls for testimony that has nothing to do with this case. May we approach?
If a speaking objection is taking place, the best approach is to speak over opposing counsel and request that the counsel approach the bench to address the objection with the Court. At sidebar, it will be necessary to explain both the reason the objection is incorrect and how the counsel misused the objection via a speaking objection. Be prepared to argue how the speaking objection prejudiced your client and seek specific relief, including a limiting instruction to the jury and an instruction to the counsel regarding proper objection. If it continues or is serious enough, seeking a mistrial and costs would also be potentially appropriate. As such, the primary way to curtail speaking objections is to act forcefully to identify them and seek an admonishment of counsel to make the speaking objections more harmful than useful for opposing counsel.
5. Use of the Sidebar Conference
Sidebars are most commonly used to discuss more complex objections and evidentiary issues outside of the hearing of the jury. As discussed above, calling for sidebar is a useful tool in curtailing speaking objections. Importantly, sidebars are presumed by appellate courts to not be heard by the jury. As such, counsel should keep their voices down to avoid the jury hearing statements and if a counsel is concerned the sidebar is being overheard, to raise that issue with the Court.
Sidebars should always be on the record (and are recorded in Federal criminal cases). A sidebar that is not recorded will not be part of the record and, therefore, objections and rulings will not be preserved for appeal unless reiterated on the record. Due to courtroom configurations or other issues, some judges may prefer sidebars off the record and then reiterate on the record the objection and the decision. This approach is not ideal, especially for complex issues. Asking the Court to excuse the jury may be necessary.
Following a sidebar, if a limiting instruction was discussed, it is important for that limiting instruction to be addressed to the jury. A limiting instruction not made to the jury is not preserved.
Finally, in federal civil trials, arguments related to jury instructions and jury charges must be made on the record. As such, even following a sidebar conference, it may be necessary to make the objection and be overruled.
6. Jury Instructions After the Objection
Examples of jury instructions including limiting instructions such as the evidence may only be considered against one party or the evidence is only partially admissible or to disregard evidence entirely or similar limitations. It is important to seek curative instructions to preserve issues for appeal, including related to speaking objections or closing statements. Failure to do so may waive the issue for appeal. If the issue is sufficiently complex and the language will need to be negotiated or argued, requesting a recess for the parties and the court to craft the statement may be necessary. In any case, obtaining jury instructions is important and ensuring the instruction is accurate is equally important. It is never easy to ask the Court to correct itself, but failure to object an incorrect jury instruction leads to potential waiver and a presumption that the instruction cured the issue even if you feel otherwise.
B. Preserving Evidentiary Issues for Appeal
As noted above, preserving evidentiary issues is very important. Rule 103 requires that the objection be made in a timely fashion – either prior to admission of the evidence or, in the context of a motion to strike, when the offending evidence is made or the default is discovered. Furthermore, the objection must be specific, unless it was apparent from the context. Since “apparent from the context” is vague, it is best to be specific without devolving into a speaking objection. Finally, the Court must issue a clear and definite ruling. If the Court’s ruling is conditional or not definite, renewing the objection is necessary. However, once the objection is made and overruled, it is not necessary to seek to strike the testimony or continue objecting to the same evidence. Such a disruptive approach may be counter-productive and offend the Court.
In addition, keep in mind that when appealing an evidentiary ruling, the party who was overruled can only rely on the arguments made on the record. In contrast, the other party can rely on his or her arguments, the Court’s statements for overruling, or any other ground apparent from the record. As such, it is important when objecting for multiple reasons to provide them all.
1. Timing and Frequency of Objections
Objections are best if before the evidence is admitted to preclude the jury hearing the evidence. Given that most evidence is exchanged and marked prior, being prepared for an objection includes knowing the opposing evidences thoroughly. In addition, objections may require interrupting the witness as they being to speak. While this can appear rude and bullying, it is necessary and best to be done as politely as possible. If the witness continues to answer, asking the judge to instruct the witness to wait to answer until the objection is ruled upon is appropriate.
Another rule of thumb is, when in doubt, to object. Objections should be polite to avoid appearing as a jerk, but it is a necessary part of trial. Frequency of objections is frequently outside your control, since much depends on opposing counsel’s approach. If an objection is sustained and the counsel just keeps trying from different angles, many objections can follow and the only approach would be to seek an instruction from the judge for opposing counsel to move on to a new topic.
2. Specificity of Objections
Objections must be specific enough to inform the court why the evidence is inadmissible and provides the court enough information to make an informed decision. As such, an objection should not be general, but needs to be specific and refer to the basis for the objection. In other words, “hearsay” or “foundation” alone are sufficient when the issue is more specific such as the declarant is available or that the question calls for expert testimony from a lay witness.
An example of a good objection would be: “Objection, Your Honor. The offered business record contains subjective opinions that constitute inadmissible hearsay not within the exception found at Rule 803(6).”
3. Motions in Limine
These motions were discussed above. The key issue to remember in preserving the issue for appeal is that the ruling must clear and definite and a final ruling. The proposed order should be drafted to make it clear it is final, including stating that attempting to admit the evidence may result in sanctions. Many orders deciding in limine motions are preliminary in nature, either on their face or in practice. As such, seeking clarification or renewing the objection may be necessary or requesting to admit evidence that was ruled inadmissible can be necessary to preserve your appellate rights.
4. Offers of Proof
An offer of proof is used when a trial court indicates it will exclude evidence you seek admitted or is uncertain of its admissibility.The offer of proof will serve to preserve your arguments for appeal on the admissibility of the evidence, as well as providing support for the admissibility to the trial court (and hopefully resulting the admission of the evidence).Offers of proof are done outside of the jury and consist of three parts: (1) the evidence itself; (2) an explanation of the relevance of the evidence; and (3) an argument addressing the admissibility of the evidence.Offers of proof may require voir dire of witnesses through a formal process that is time-consuming but necessary.Informal proffers mostly consist of argument, but will require the Court’s permission and the right for opposing party to demand formal proffer.A formal ruling on a proffer is essential to preserve the proffer for appeal.