Error preservation is one of the most important trial skills a trial attorney must master to represent a defendant effectively. There is no greater tragedy than having an appellate court lament that the issue raised on appeal would be a valid, reversible error (meaning it gets the defendant a new trial), but for the fact that the trial attorney failed to object at trial properly. At this point, cue the sad trumpet wail – whaaa whaaa – because the appellate court will not fix that problem. There is a complex explanation but suffice to say it has to do with the nature of an adversarial justice system. So, the takeaway – get on your feet and object when you suspect something is wrong with the testimony, presentation, or argument.
The elements of an objection. An objection must include the following elements.
- Indicate what follows is an objection.
- Address the court respectfully.
- Indicate and isolate with clarity what the attorney is objecting to with specificity.
- Provide any legal ground necessary to apprise the court of the issue.
- Allow the court to assess the matter.
- Get a clear ruling from the court.
A typical objection may look like this, “Objection, Your Honor, the answer calls for hearsay not within an exception.” The objection should be clear and concise. The objection may not be a “speaking objection” where the objector indicates more commentary than is necessary to apprise the court. For instance, “Objection, Your Honor, the answer calls for hearsay not within an exception. There is no way that this witness could possibly know this answer unless someone else told him the answer.” The second part is not necessary for the initial objection. If the court needs further information or argument to make a ruling, then it will illicit that information at sidebar outside the hearing of the jury.
The last part is the most important. The attorney must get a clear ruling from the court in terms of “sustained,” “overruled,” “granted,” or “denied.” Things like “move along,” “so noted,” “noted for the record,” … etc. are not clear rulings and do not preserve the error with a contemporaneous objection. If the court refuses to rule, then ask the court straight up, “Your Honor is my objection overruled?” It puts the onus on the court to make a ruling instead of dancing around the issue. The “contemporaneous objection rule” is the general rule to preserve most errors for appellate review. While it is the general rule, it is not universally understood by trial attorneys.
If you are looking at this as an option or want an honest opinion about a specific case, appeal, or sentence, then please do not hesitate to contact the Candela Law Firm and allow us to look into the matter for you.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (both federal and Florida). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
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No. 24-02
