Conduct of Trial – Importance of Objections to Inadmissible Evidence or Improper Questions
The attorneys (or parties if they are pro se) are required to make timely objections to the introduction of inadmissible evidence or improper questions. The general rule is that the failure to timely object to inadmissible evidence or improper questions results in a waiver of the objection. [1]
Opposing counsel has the right to object to any question which appears to be improper. [2]
Where a party offers objectionable evidence and his opponent does not object to it, that party has opened the door for the introduction of such testimony by the opponent and may not have it excluded. [3]
An appeal from a final judgment brings up for review, among other things, any ruling to which the appellant objected or had no opportunity to object, or which was a refusal or failure to act as requested by the appellant.[4] However, if there is no objection, the issue is not preserved for appellate review. [5]
The proper time to object to a question is when it is asked. The proper time to object to the admission of a document is when it is offered in evidence. [6]
An objection must be made as soon as the opponent either asks a question that apparently calls for improper testimony or attempts to introduce an improper exhibit.[7] An objection to a question should be made as soon as the question is asked and before it is answered. Counsel is not permitted to wait until he finds out whether the answer is favorable or unfavorable before objecting to the question. A delay in objecting until after the testimony is completed may be considered a waiver of the objection. However, if the answer to an improper question is made so quickly that an opportunity is not afforded for an objection until after the answer, an objection made immediately after the question is answered is considered timely. [8]
When the objectionable evidence is part of a series of questions and ongoing testimony, a timely objection, once raised, will serve as "a continuing objection” and it is not necessary to object to other improper evidence of the same sort adduced from that witness.[9]
There is an exception to the rule that the failure to make an objection before the question is answered will be considered a waiver of the objection, where the witness answers before the objection reasonably can be interposed,[10] or when the objectionable nature of the evidence does not become apparent until a later point in the trial.[11]
Where evidence is excluded upon a general objection, the ruling will be upheld upon appeal if any ground existed for the exclusion. It will be assumed in the absence of any request on the part of the opposing party or the court, to make the objection more definite, that the ruling was made upon the right ground. Where, however, evidence is received under a general objection, the ruling will not be held erroneous unless there is some ground which could not have been obviated if it had been specified, or unless the evidence is incompetent. [12]
When evidence is immaterial, and is objected to on the ground that it is immaterial, the objection points out the precise ground upon which the evidence should be excluded, and that is all the person objecting is required to do. Where the evidence which is immaterial is also incompetent and irrelevant, it may properly be objected to on all or either of these grounds. Evidence may be incompetent, but neither immaterial nor irrelevant, or vice versa, in which case the objection may and should be made upon the exact ground that provokes it. The reason for the rule is that if evidence is inadmissible upon one ground, and is objected to upon another ground, the trial court is not advised of the true reason for its rejection, and the objector is held to have waived it. [13]
Thus, an objection on the ground that evidence is incompetent, immaterial and irrelevant is a general objection, unless it relates to an objection as to the relevance of the evidence.[14]
[1] People v. Russell, 71 N.Y.2d 1016, 530 N.Y.S.2d 101, 525 N.E.2d 747 (1988); Horton v. Smith, 51 N.Y.2d 798, 799, 433 N.Y.S.2d 92, 93, 412 N.E.2d 1318, 1319 (1980);
[2] Mandia v Wilson & Co. (1941) 262 AD 1038, 30 NYS2d 404.
[3] Wallis v Randall (1880) 81 NY 164; McCormack v Mandelbaum (1905) 102 AD 302, 92 NYS 425.
[4] CPLR 5501(a) (3). It also brings up for review any remark made by the trial judge to which the appellant objected. See CPLR 5501(a) (4).
[5] Short v Short (1988, 4th Dept) 142 AD2d 947, 531 NYS2d 155, later proceeding (4th Dept) 142 AD2d 948, 531 NYS2d 219.
[6] Re Estate of Gruder (1977) 89 Misc 2d 477, 392 NYS2d 203, 21 UCCRS 287; Re D (1970) 63 Misc 2d 1012, 314 NYS2d 230.
[7] Quin v. Lloyd, 41 N.Y. 349, 355 (1869)
[8] Link v Sheldon, 136 NY 1, 32 NE 696 (1892); Le Coulteux De Caumont v Morgan, 104 NY 74, 9 NE 861 (1887); Kennedy v John N. Robins Co., 154 AD 819, 139 NYS 745 (1913); Miano v Westchester Gulf Service Station, 90 AD2d 477, 455 NYS2d 269 (1 Dept 1982); Liddy v Frome, 85 AD2d 716, 445 NYS2d 841 (2d Dept 1981). Pratt v New York C. & H. R. R. Co., 77 Hun 139, 28 NYS 463 (1894).
[9] Kulak v. Nationwide Mutual Ins. Co., 40 N.Y.2d 140, 145, 386 N.Y.S.2d 87, 90, 351 N.E.2d 735, 738 (1976).
[10] Wightman v. Campbell, 217 N.Y. 479, 482, 112 N.E. 184, 185 (1916).
[11] Quin v. Lloyd, 41 N.Y. 349, 355 (1869) (impropriety of evidence not apparent until cross-examination or at later stage of trial).
[12] M. Groh's Sons v. Groh, 177 N.Y. 8, 14, 68 N.E. 992, 994 (1903).
[13] M. Groh's Sons v. Groh, 177 N.Y. 8, 14, 68 N.E. 992, 994 (1903).
[14] M. Groh's Sons v. Groh, 177 N.Y. 8, 14, 68 N.E. 992, 994 (1903).
The attorneys (or parties if they are pro se) are required to make timely objections to the introduction of inadmissible evidence or improper questions. The general rule is that the failure to timely object to inadmissible evidence or improper questions results in a waiver of the objection. [1]
Opposing counsel has the right to object to any question which appears to be improper. [2]
Where a party offers objectionable evidence and his opponent does not object to it, that party has opened the door for the introduction of such testimony by the opponent and may not have it excluded. [3]
An appeal from a final judgment brings up for review, among other things, any ruling to which the appellant objected or had no opportunity to object, or which was a refusal or failure to act as requested by the appellant.[4] However, if there is no objection, the issue is not preserved for appellate review. [5]
The proper time to object to a question is when it is asked. The proper time to object to the admission of a document is when it is offered in evidence. [6]
An objection must be made as soon as the opponent either asks a question that apparently calls for improper testimony or attempts to introduce an improper exhibit.[7] An objection to a question should be made as soon as the question is asked and before it is answered. Counsel is not permitted to wait until he finds out whether the answer is favorable or unfavorable before objecting to the question. A delay in objecting until after the testimony is completed may be considered a waiver of the objection. However, if the answer to an improper question is made so quickly that an opportunity is not afforded for an objection until after the answer, an objection made immediately after the question is answered is considered timely. [8]
When the objectionable evidence is part of a series of questions and ongoing testimony, a timely objection, once raised, will serve as "a continuing objection” and it is not necessary to object to other improper evidence of the same sort adduced from that witness.[9]
There is an exception to the rule that the failure to make an objection before the question is answered will be considered a waiver of the objection, where the witness answers before the objection reasonably can be interposed,[10] or when the objectionable nature of the evidence does not become apparent until a later point in the trial.[11]
Where evidence is excluded upon a general objection, the ruling will be upheld upon appeal if any ground existed for the exclusion. It will be assumed in the absence of any request on the part of the opposing party or the court, to make the objection more definite, that the ruling was made upon the right ground. Where, however, evidence is received under a general objection, the ruling will not be held erroneous unless there is some ground which could not have been obviated if it had been specified, or unless the evidence is incompetent. [12]
When evidence is immaterial, and is objected to on the ground that it is immaterial, the objection points out the precise ground upon which the evidence should be excluded, and that is all the person objecting is required to do. Where the evidence which is immaterial is also incompetent and irrelevant, it may properly be objected to on all or either of these grounds. Evidence may be incompetent, but neither immaterial nor irrelevant, or vice versa, in which case the objection may and should be made upon the exact ground that provokes it. The reason for the rule is that if evidence is inadmissible upon one ground, and is objected to upon another ground, the trial court is not advised of the true reason for its rejection, and the objector is held to have waived it. [13]
Thus, an objection on the ground that evidence is incompetent, immaterial and irrelevant is a general objection, unless it relates to an objection as to the relevance of the evidence.[14]
[1] People v. Russell, 71 N.Y.2d 1016, 530 N.Y.S.2d 101, 525 N.E.2d 747 (1988); Horton v. Smith, 51 N.Y.2d 798, 799, 433 N.Y.S.2d 92, 93, 412 N.E.2d 1318, 1319 (1980);
[2] Mandia v Wilson & Co. (1941) 262 AD 1038, 30 NYS2d 404.
[3] Wallis v Randall (1880) 81 NY 164; McCormack v Mandelbaum (1905) 102 AD 302, 92 NYS 425.
[4] CPLR 5501(a) (3). It also brings up for review any remark made by the trial judge to which the appellant objected. See CPLR 5501(a) (4).
[5] Short v Short (1988, 4th Dept) 142 AD2d 947, 531 NYS2d 155, later proceeding (4th Dept) 142 AD2d 948, 531 NYS2d 219.
[6] Re Estate of Gruder (1977) 89 Misc 2d 477, 392 NYS2d 203, 21 UCCRS 287; Re D (1970) 63 Misc 2d 1012, 314 NYS2d 230.
[7] Quin v. Lloyd, 41 N.Y. 349, 355 (1869)
[8] Link v Sheldon, 136 NY 1, 32 NE 696 (1892); Le Coulteux De Caumont v Morgan, 104 NY 74, 9 NE 861 (1887); Kennedy v John N. Robins Co., 154 AD 819, 139 NYS 745 (1913); Miano v Westchester Gulf Service Station, 90 AD2d 477, 455 NYS2d 269 (1 Dept 1982); Liddy v Frome, 85 AD2d 716, 445 NYS2d 841 (2d Dept 1981). Pratt v New York C. & H. R. R. Co., 77 Hun 139, 28 NYS 463 (1894).
[9] Kulak v. Nationwide Mutual Ins. Co., 40 N.Y.2d 140, 145, 386 N.Y.S.2d 87, 90, 351 N.E.2d 735, 738 (1976).
[10] Wightman v. Campbell, 217 N.Y. 479, 482, 112 N.E. 184, 185 (1916).
[11] Quin v. Lloyd, 41 N.Y. 349, 355 (1869) (impropriety of evidence not apparent until cross-examination or at later stage of trial).
[12] M. Groh's Sons v. Groh, 177 N.Y. 8, 14, 68 N.E. 992, 994 (1903).
[13] M. Groh's Sons v. Groh, 177 N.Y. 8, 14, 68 N.E. 992, 994 (1903).
[14] M. Groh's Sons v. Groh, 177 N.Y. 8, 14, 68 N.E. 992, 994 (1903).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
|
Joel R. Brandes Consulting Services, Inc.
2881 NE 33rd Court (At Dock) Ft. Lauderdale, Florida 33306. Telephone (954) 564-9883. email to:[email protected]. Joel R. Brandes Consulting Services, Inc is a Florida corporation which is owned and operated by
Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
|