Objecting during trial: just because you CAN doesn't mean you SHOULD

Objecting during trial is always shown on tv & movies as a big deal where the attorneys are really upset by the question or answer & when something really important or damaging is about to come out. If you have never seen a trial in reality, the media tells you that if something is being objected to, it's because it's a big deal.

The reality is that oftentimes, objections are about procedural things & are not about some big, hugely damaging piece evidence. The question of what evidence gets to come in or not is dealt with before trial so there isn't typically some surprise damaging evidence. Usually, when I'm objecting, I don't even look up from what I'm writing down for my notes about the testimony. I usually just calmly say, "Objection, hearsay" or "objection, foundation." If I need to say more, I say "objection, may we approach?" So for me, it's never some "oh shit!" deer-in-headlights moment. It generally shouldn't be if I'm doing objections properly, although it could happen every once in a great while.

There's an art to objecting during a trial. The jury is watching everything you do & it's critical to remember that. If you object too much, especially if you are overruled, it looks like you are trying to hide something. That's bad, you don't want that. Sometimes, depending on the situation, you could technically object and even be right about your objection, but it's a better move strategically to not object. Just because you CAN doesn't mean you SHOULD.

I take the following things into account when deciding if I should object:

1. If I don't object, how damaging/improper/problematic will the evidence be? If it's something really minor, or it won't make a difference, maybe it's not worth objecting.

2. How many times have I made this same objection & what has the judge ruled on it so far? If I have made it a lot & lost, maybe I need to either let it go, put a continuing objection on the record, or come up with a different reason for my objection. Obviously, preserving the record is important so if I need to keep objecting on the same basis but I'm not winning, the continuing objection is a good way to get the objection in without looking bad in front of jury. A continuing objection is where you tell the court that you object to the entire line of questioning or of the witness or something like that, so you don't have to say objection every time. It's on the record that you are objecting to all of it.

3. Will objecting be more harmful for my case than not? Sometimes objecting to something draws even more attention to the thing & creates more harm than it does if you just let it go. For example, I've had cases where a witness testified about something & in passing, very quickly mentioned something objectionable. It wasn't great for my cases but it also wasn't super harmful either, especially since it was in the middle of a bunch of other stuff they were saying. I could object, but that may draw more attention to the problem testimony than if i say nothing. Maybe the jurors didn't hear it or maybe they didn't think it was important. By drawing attention to it, I make sure they notice it & that it's likely important. There are times when it's better to let it slide & not put a spotlight on it.

4. Is this worth it? This is where you tell yourself to pick your battles. Often, public defenders & prosecutors & other attys appear in front of the same judges over and over. The judges start to know you & know your style. Like anything, if you're constantly objecting (especially if you're losing) eventually you run the risk of just being the attorney who cried objection. You don't want judges to think that objecting to everything is just what you do & stop taking your objections seriously. As a related example, if a probation officer recommends on every single probation violation that the whole sentence should be served (known as executing the sentence), it loses meaning. If they only recommend execution of sentence on really egregious probation violations, the court is likely to take that more seriously. So, is it worth picking this particular battle?

5. Does it advance or help my case? Lots of time, I could object to small, procedural issues but I don't. For example, if the pros is using leading questions, but the questions aren't about things that I care about for my case, maybe I'll let it slide. Why? Bc it's not that important & I don't want to look like a pain in the ass to the jury.

There are times when it's better to let it go. As an example, let's say that the defense has a paid witness testifying to counter the state's expert. The defense does the direct exam & doesn't mention that the witness is paid by defense. State cross examine & doesn't ask. Back to defense for some redirect & then back to the state for re-cross. During re-cross, the state asks if the witness is paid by the defense for testifying.

Defense objects as outside the scope of redirect. This is technically correct. BUT is this an objection worth making? I would say no. 1. The defense will be able to ask more questions about whether being paid affects testimony, blah, so it will be given context. 2. Overall it's not super damaging to the case bc it's common for experts to get paid to testify. 3 Objecting runs the greater risk of making the defense look bad to the jury, no matter what the judge decides. The question is already out there. You can't unring the bell.

If the judge sustains the objection, the jury may assume you objected bc the witness IS paid & you are attempting to hide that from the jury. That's bad. If the witness wasn't paid, you probably wouldn't object. And if it wasn't important that the witness was paid, you wouldn't object. A jury may wonder if the reason you are objecting is bc you paid the witness to testify a certain way & you don't want the jury to know. And that's if you win the objection.

If the judge overrules you, then it comes out that the witness IS paid and now you really look like you were trying to hide that from the jury. Now they know for sure the witness was paid & that you didn't want them to know about it. And again, that makes you look suspicious.

The best way, in my opinion, to handle that situation? Let the witness answer. Don't object. Would the objection be correct? Yes. But, does it help or hurt me? Is it going to advance my case? Is it worth it?

When it comes to objecting, it's an important tool at trial. But, it should be used intelligently & thoughtfully. Simply because it's possible to make the objection that doesn't mean you always should.