TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION: A

CRIMINAL LAW PRACTITIONER’S GUIDE TO THE “FIVE

W’S” OF EVIDENTIARY OBJECTIONS

JONATHAN J. O’KONEK*

ABSTRACT

Objections provide criminal law practitioners with power. By lodging an

evidentiary objection, a practitioner can prevent an opposing party from in-
troducing evidence, preserve appellate review of evidentiary issues, and im-
pact the way in which the parties introduce evidence at trial. However, to be
effective, practitioners must understand the “five w’s” of objections; specif-
ically, “when,” “how,” “where,” about “what” and “why” to object. By ana-
lyzing these five penultimate questions, criminal practitioners will be able to
answer the ultimate question; “if” they should object at all. By applying this
methodology, criminal practitioners will be better able to lodge convincing
objections, which will have a positive impact on their clients’ cases.

*†Assistant United States Attorney, United States Attorney’s Office, District of North Dakota, Bis-
marck, North Dakota since 2016. Previously served as trial counsel and trial defense counsel in the
United States Army Judge Advocate General’s Corps from 2010 to 2016. J.D., 2009, University of
North Dakota School of Law, Grand Forks, North Dakota. B.A., 2007, History and Philosophy,
Texas A&M University. The views and opinions expressed in this article are those of the authors
and do not necessarily reflect the official policy or position of the Department of Justice, the United
States Attorney’s Office for the District of North Dakota, or any agency of the United States gov-
ernment. Instead, the author’s views and opinions, as described in this article, are the result of his
own firsthand experiences as a federal criminal trial attorney. At the time of this article, the author
has completed dozens of federal jury trials and a plethora of federal bench trials, which form the
basis for the author’s experience in trial objections. The author would like to thank his wife, Wendy,
daughter, Reece, and son, Sheamus, for their support while the author wrote this article.
156 NORTH DAKOTA LAW REVIEW [VOL. 95:1

I. INTRODUCTION .......................................................................... 157

II. “WHEN AND HOW” TO OBJECT: THE PROPER TIMING OF
OBJECTIONS ................................................................................ 158
A. PRETRIAL OBJECTIONS ............................................................ 159
B. TRIAL OBJECTIONS .................................................................. 160
C. POST-TRIAL OBJECTIONS ........................................................ 163
III. “WHERE” TO OBJECT: INSIDE OR OUTSIDE THE JURY’S
PRESENCE .................................................................................... 163
A. TRIAL BRIEFS........................................................................... 164
B. SPEAKING OBJECTIONS ........................................................... 164
C. SIDEBAR CONFERENCES .......................................................... 165
D. OBJECTION FREQUENCY .......................................................... 166
IV. “ABOUT WHAT” TO OBJECT: EFFECTIVE EVIDENTIARY
OBJECTIONS ................................................................................ 166
A. RELEVANCE: FEDERAL RULE OF EVIDENCE 401 AND 403 ...... 167
1. Federal Rule of Evidence 401 ........................................... 167
2. Federal Rule of Evidence 403 ........................................... 167
3. Practical Application of Federal Rule of Evidence 401 and
403 ..................................................................................... 168
B. AUTHENTICATION.................................................................... 168
C. HEARSAY ................................................................................. 170
D. CONFRONTATION CLAUSE ....................................................... 172
E. CHARACTER EVIDENCE ........................................................... 173
V. “WHY” SHOULD I OBJECT? ...................................................... 173
A. APPELLATE REVIEW ................................................................ 174
1. Abuse of Discretion ........................................................... 174
2. Plain Error ........................................................................ 175
B. OBJECTING TO PRESERVE APPELLATE ISSUES ......................... 175
VI. DECIDING “IF” YOU SHOULD OBJECT .................................. 176
A. OBJECTING TO SERVE A CLIENT’S INTERESTS ........................ 176
B. UNINTENDED CONSEQUENCES OF LODGING OBJECTIONS ...... 176
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 157

C. UNEXPECTED OBJECTIONS ...................................................... 177

VII. CONCLUSION .............................................................................. 178

I. INTRODUCTION
For lawyers and layman alike, one word represents courtroom power,
“objection!”1 This one word carries the power to prevent evidence admission,
protect a client’s rights, and preserve the appellate record.2 Alternatively,
failure to object acquiesces to the admission of evidence, waives a client’s
rights, and heightens the appellate standard of review.3 Moreover, the phrase
“objection,” has the power to immediately pause court proceedings, throw
opposing counsel off balance, and draw attention to an otherwise overlooked
point. For these reasons, one cannot overlook or overstate the power of ob-
jections.
Nevertheless, objections have transcended the legal profession and, in
film and television programs, are often used, for dramatic effect.4 According
to Hollywood, an objection is a lawyer’s primary tool; and therefore, lawyers
are depicted objecting often and with great vigor.5 An unintended conse-
quence of these Hollywood portrayals is that attorneys often imitate them
without understanding an objection’s purpose.6 Consequently, Hollywood’s
popularization of the dramatic objection often belies the true purpose of ob-
jecting: to achieve a strategic, as opposed to a tactical, trial advantage.
Unfortunately, law schools do not prepare law students for the everyday
intricacies of criminal trial practice.7 Instead, newly minted criminal law

1. See e.g., Mark Anderson, Cartoon Description, ANDERTOONS (October 19, 2019, 12:27
PM), http:// andertoons.com/law/cartoon/6646/objection-prosecution-is-high-fiving-the-jury (“Ob-
jection! Prosecution is high-fiving the jury!”); Law & Order (NBC television broadcast from Sep.
13, 1990 to May 24, 2010); Perry Mason (CBS television broadcast Sep. 21, 1957 to May 22, 1966).
2. Craig Lee Montz, Trial Objections from Beginning to End: The Handbook for Civil and
Criminal Trials, 29 PEPP. L. REV. 243, 246-47 (2002).
3. Id. at 246-50.
4. Law & Order, supra note 1; Perry Mason, supra note 1.
5. Law & Order, supra note 1; Perry Mason, supra note 1.
6. Michael Asimow, How I Learned to Litigate at the Movies, ABA Journal, (October 19,
2019, 5:02 PM), http://www.abajournal.com/magazine/article/how_i_learned_to_liti-
gate_at_the_movies (“So enjoy legal pop culture, but don’t forget that no matter how trashy, inac-
curate and even downright ridiculous it often appears to be, it always affects those who consume it.
Whether we like it or not, we must take that impact into account in the way we conduct ourselves
as lawyers.”).
7. William T. Vukowich, Comment: The Lack of Practical Training in Law Schools: Criti-
cisms, Causes and Programs for Change, 23 CASE W. RES. L. REV. 140, 142 (1971) (“While it is
feasible for the medical or science-oriented schools to provide significant practical training in an
educational facility which duplicates the students’ future career environment, it is patently impos-
sible to provide any meaningful practical training within the existing law school facilities.”).
158 NORTH DAKOTA LAW REVIEW [VOL. 95:1

practitioners learn about the particulars of trial practice, including objections,

both through the guidance of their law firm or government superiors and by
participating in bench and jury trials.8 A lawyer’s experience on when, how,
about what, where, why, and if to object, therefore, often comes from making
mistakes at trial. It is through these mistakes, however, that an attorney de-
velops into an experienced criminal trial practitioner. In the author’s experi-
ence, over time, a criminal practitioner’s objection practice evolves into three
phases: (1) failing to identify and object to worthy objections; (2) lodging
objections without considering these objections’ strategic consequences; and
(3) identifying possible objection areas, but only objecting when it serves the
criminal practitioner’s strategic agenda.
This article serves as a practical objection guide for criminal law practi-
tioners.9 In particular, this article will ask the “5 w’s” of objection practice
by evaluating “when and how,” “where,” about “what,” “why” and, finally,
“if” to object to an evidentiary item. First, this article will explore the im-
portance of the timing of objections; specifically, whether to object pretrial,
during trial, or post-trial. Second, the benefits of objecting either inside or
outside the presence of the jury will be evaluated. Third, the article will ex-
amine the most effective and important objections: relevance, authentication,
hearsay, confrontation clause, and character evidence. Fourth, the author will
describe how objections effect the appellate standard of review; from abuse
of discretion to plain error. Finally, this article will assess “if” a criminal
practitioner should object by evaluating whether objecting serves the practi-
tioner’s strategic interests.

II. “WHEN AND HOW” TO OBJECT: THE PROPER TIMING OF

OBJECTIONS
The first major challenge a criminal practitioner faces is determining
“when” and “how” to object. Ultimately, a practitioner may elect to object
during one of three time periods: (1) pretrial; (2) during trial; and (3) post-
trial.10 However, each of these options present their own risks and rewards.

8. Id. at 146 (“These graduates receive practical training, which is probably far superior to any
which could be given by law schools, under the tutelage of the experienced practitioners in the law
offices with which they become associated”).
9. Specifically, this article will evaluate objection practice by applying the Federal Rules of
Evidence, federal case law, and federal trial procedures.
10. See FED. R. CRIM. P. 12(b)(2) (“A party may raise by pretrial motion any defense, objec-
tion, or request that the court can determine without a trial on the merits.”); FED. R. CRIM. P.
30(d)(“A party who objects to any portion of the instructions . . . must inform the court of the spe-
cific objection and the grounds for the objection before the jury retires to deliberate.”); FED. R.
CRIM. P. 29(c)(1)-(d) (describing the parameters for post-trial motions for a judgment of acquittal
and a new trial).
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 159

This section will articulate the mechanisms by which a lawyer may raise ob-
jections for the best possible effect.

A. PRETRIAL OBJECTIONS
Arguably, pretrial objections are the safest and most cautious objections.
On the one hand, pretrial objections permit an attorney to fully research and
brief an issue long before trial and obtain a court ruling.11 However, on the
other hand, they also allow the opposing party significant time to fully re-
search this issue and respond.12 The benefit of submitting a pretrial objection
is that it provides an attorney with certainty by way of a court ruling issued
in advance of trial. The drawback to the pretrial objection is that it removes
the element of surprise and possibly waives an attorney’s tactical advantage.
The mechanism for filing pretrial objections is through use of a written
court filing known as a “motion in limine.”13 A motion in limine is a common
law pretrial mechanism to prevent the admission of evidence.14 These mo-
tions come in a variety of different forms including: motions to exclude evi-
dence, motions to exclude testimony, and simply in the form of written ob-
jections. Although the term “motion in limine” does not appear in the Federal
Rules of Evidence or Federal Rules of Criminal Procedure, these rules do
provide lawyers with authority to issue pretrial objections through motions
in limine.15 For example, pursuant to Federal Rule of Evidence 104(a), “[a]
court must decide any preliminary question about whether a witness is qual-
ified, a privilege exists, or evidence is admissible.”16 Therefore, it is permis-
sible for a criminal law practitioner to request that the court issue a pretrial
ruling on the admissibility of a particular evidentiary item.
Ultimately, pretrial objections allow both sides to fully flesh out a given
trial issue by applying the existing law to the case related facts.17 For exam-

11. See D.N.D. Crim. L. R. 47.1; D.N.D. R. Appendix A-2 (establishing the page limitations
and deadlines for filing pretrial motions; including that a criminal law practitioner may attach a
twenty page memorandum in support of a pretrial motion and that an opposing party has up to
fourteen days to respond to a pretrial motion).
12. See D.N.D. Crim. L. R. 47.1; D.N.D. R. Appendix A-2.
13. Montz, supra note 2, at 254 (“For trial purposes, the first significant objections made by
counsel will be in the form of a motion in limine . . . .”).
14. Ryan A. Ray, Motions in Limine: To File or Not to File?, PROOF, Summer 2009, at 1, 1
(“A motion in limine is a pretrial request that certain evidence not be admitted or mentioned at
trial.”).
15. See FED. R. CRIM. P. 12(b)(2); FED. R. EVID. 104(a).
16. FED. R. EVID. 104(a).
17. Ray, supra note 14, at 1 (“Such a motion can also improve a client’s chance of obtaining
a fair trial, fostering decision based upon the case’s merits as opposed to red herrings that ought
never to reach the jury.”).
160 NORTH DAKOTA LAW REVIEW [VOL. 95:1

ple, in a criminal matter, where the case hinges on a witness’ important hear-
say statement, filing a pretrial objection that asserts the inadmissibility of this
statement permits an attorney to potentially win the case prior to trial. Con-
trarily, if the practitioner files, yet loses, this pretrial objection, the court will
issue a ruling which spells doom for his or her case.
Strategically, a practitioner can maximize the success of pretrial objec-
tions by evaluating the strengths and weaknesses of his case. If a practitioner
identifies that he or she is likely to win on an objection, by filing a successful
motion in limine to exclude this evidence, it prevents the jury from ever hear-
ing about it in an opening statement.18 As a side effect of a successful motion
in limine ruling, the opposing party may offer more favorable pretrial nego-
tiation terms. Additionally, in weaker cases, where harmful evidence is likely
admissible, it is unwise to file motions in limine to exclude evidence because
it may alert opposing counsel to your trial strategy.19 Instead, in these cases,
the better choice is to not file a pretrial objection, but instead, to either object
at trial, not object at all, or discredit the evidence.

B. TRIAL OBJECTIONS
The next period in which a criminal law practitioner can object is during
trial. Trial objections may occur either in front of the jury or outside the jury’s
presence.20 Unlike pretrial objections, trial objections are made orally, often
at the time the opposing party attempts to introduce a piece of evidence.21
In most cases, trial objections are made in response to the opposing party
attempting to introduce the following types of evidence: real evidence, doc-
umentary evidence, photographic evidence, and testimonial evidence.22 For
practical purposes, due to an opposing party’s duty to lay proper foundation,
a practitioner will have advance notice to object to the admission of real,
documentary, and demonstrative evidence.23 This is particularly true because

18. Id. at 11 (“If granted, an exclusionary motion in limine would not only prohibit introduc-
tion of the evidence, but it would also prevent counsel and witnesses from even mentioning the
excluded evidence to the jury during trial.”).
19. Id. (explaining that “motions in limine may serve to educate your opponent on your trial
strategy and your key evidence.”).
20. Thomas A. Mauet, TRIAL TECHNIQUES AND TRIALS 521 (Rachel E. Barkow et al. eds.,
10th ed. 2017) (explaining that a lawyer may lodge evidentiary objections both inside and outside
the presence of the jury).
21. Id. at 521-23.
22. See id. at 288, 300, 316, 524-55.
23. See FED. R. EVID. 901 (explaining the process by which a practitioner may authenticate or
identify evidentiary items including by: “Testimony of a Witness with Knowledge,” “Comparison
by an Expert Witness or Trier or Fact,” and “Methods Provided by a Statute or Rule.”).
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 161

an opposing party must authenticate these types of evidence, usually through

a witness with knowledge by asking a series of foundation questions.24
For example, in an aggravated assault trial where the defendant is ac-
cused of stabbing the victim with a knife, the prosecuting attorney will likely
call the law enforcement officer who found the knife to testify on the witness
stand. Thereafter, the prosecuting attorney will hand the officer the knife,
question the officer if the item is the knife he found at the scene, and ask if it
is in the “same or substantially same condition” as when the officer found
it.25 These types of preliminary questions give a practitioner advance notice
that the opposing party will be moving to admit a piece of evidence. Once
the opposing party requests to admit the item into evidence, a practitioner
simply has to lodge an oral objection with the legal basis. Often, the entire
objection can be completed by uttering less than five words; i.e., “objection,
relevance,” or “objection, improper character evidence.”26 However, due to
the way in which practitioners formally introduce this type of evidence in the
jury’s presence, a practitioner must evaluate whether it is more prudent to
object to an evidentiary item prior to trial. This is generally the best practice
since by objecting to an evidentiary item prior to trial a practitioner can pre-
vent the jury from ever learning about it.27
In contrast, it is often more difficult for a practitioner to prepare an ob-
jection to testimonial evidence. Through witness statements, police reports,
or prior interviews a practitioner may have advanced notice that a witness
may testify about a certain fact. However, when the witness is testifying at
trial, it is often difficult to know if, or when, this will occur. Therefore, a
criminal law practitioner should carefully listen to the opposing counsel’s
question. Often, the opposing counsel will telegraph when he or she asks a
question that will elicit an objectionable response. When this occurs, a lawyer
must simply object after opposing counsel asks the question but prior to the
witness’ answer; .i.e., “objection, calls for hearsay.”28 By objecting prior to
the witness’ answer, a practitioner puts opposing counsel, the witness, and
the court on notice that opposing counsel’s question may elicit objectionable
testimony. The purpose behind objecting prior to the witness’ answer is to
prevent the jury from ever hearing the objectionable testimony. While it is

24. Mauet, supra note 20, at 552 (explaining that “[t]he exhibit must be shown to be what it
purports to be, either through the testimony of a qualified foundation witness or through the self-
authentication process.”).
25. See id. at 289 (providing a step by step example of the proper foundation questions to ad-
mit a handgun that a law enforcement officer found in the defendant’s jacket.).
26. Id. at 521 (explaining that an oral objection should “state the evidentiary ground suc-
cinctly”).
27. See Ray, supra note 14, at 11.
28. Mauet, supra note 20, at 521.
162 NORTH DAKOTA LAW REVIEW [VOL. 95:1

possible to object after a witness testifies about an objectionable matter, such

an objection is less powerful because the jury has already heard the testi-
mony. Additionally, filing an untimely objection may negatively impact the
appellate standard of review.29
Moreover, witnesses, unlike their portrayal by film and television actors,
do not “stay on script” and often provide testimony that: (1) contradicts their
earlier statements; or (2) is new or about a subject matter never mentioned
during this witness’ pretrial interviews. Therefore, when listening to witness
testimony, it is paramount that criminal practitioners object the moment that
the opposing party asks a question which will elicit an objectionable re-
sponse.30 To make a strategic impact on a client’s case, a practitioner must
actively listen to all of opposing counsel’s questions. Unfortunately, criminal
trials have many moving parts and it is difficult for practitioners to stay fo-
cused on a single witness’ testimony when they must prepare for dozens.
However, far too often, witnesses testify about an objectionable issue simply
because a practitioner is distracted by a separate matter such as preparing his
cross examination of that witness or preparing the testimony for his next wit-
ness. Therefore, criminal practitioners must be disciplined and focus solely
on the testimony of the witness before the court by remembering the idiom,
“when you are up to your neck in alligators, it’s easy to forget that the goal
was to drain the swamp.”31
Additionally, a practitioner’s failure to actively listen and provide a
timely objection has real, practical consequences. If a lawyer objects to a
witness’ testimony after the witness has already provided this testimony: (1)
the jury has already heard the testimony; (2) the court may refuse to strike
the testimony; (3) an appellate court may determine that the lawyer waived
or forfeited his objection to this testimony; and (4) any instruction by the trial
court to disregard the objectionable testimony may unintentionally highlight
to the jury this testimony’s importance.32 Consequently, while it may be pos-
sible to submit a pretrial objection to witness testimony, it is impossible to

29. Montz, supra note 2, at 248 (“It is impossible to overstate the significance of understanding
the rules governing timeliness, specificity, and waivers of trial objections; failure to conform to
these rules renders virtually every single trial objection moot.”).
30. Id.
31. Up to (One’s) Neck in Alligators, THE FREE DICTIONARY BY FARLEX (last visited Oct. 20,
2019, 9:34 AM), https://idioms.thefreedictionary.com/up+to+your+neck+in+alligators (explaining
that this idiom refers to when an individual is “so overcome or preoccupied by various tangential
worries, problems, or tasks that [this individual] loses sight of the ultimate goal or objective.”).
32. See, e.g., Montz, supra note 2, at 242-51; Mauet, supra note 20, at 556 (explaining the
importance of lodging timely objection and stating that “[i]nexperienced lawyers frequently hesitate
to make objections quickly, the result being that the witness answers the question or the exhibit is
shown or read to the jury [and] [a]ny later objection will usually be untimely, and you have probably
waived error on appeal.”).
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 163

predict with certainty a witness’ testimony.33 Therefore, a practitioner’s best

practice is to actively listen and immediately object when the practitioner
hears an opposing counsel’s objectionable question or a witness’ objectiona-
ble answer.

C. POST-TRIAL OBJECTIONS
The final period at which a practitioner may object is after the trial’s
conclusion.34 However, a practitioner who fails to object either at pretrial or
at trial also fails to both tactically and strategically impact the trial process.
Additionally, as stated above, a practitioner who fails to timely object at trial
waives these objections.35 Therefore, a practitioner should never plan to ob-
ject post-trial, when they can instead object either pretrial or during trial.
Nevertheless, there are a few instances where a criminal law practitioner
should file a post-trial objection. First, if the practitioner uncovers new, ma-
terial evidence or discovers a fundamental error in the trial process, he or she
should object and file a motion for a new trial.36 Similarly, if the practitioner
believes that there has been a miscarriage of justice, or to preserve his or her
client’s appeal rights, he or she can file a motion for acquittal.37 However,
practically speaking, these post-trial motions or objections are often not as
powerful as pretrial or trial objections since, after trial concludes, an attorney
is faced with an uphill fait accompli.

III. “WHERE” TO OBJECT: INSIDE OR OUTSIDE THE JURY’S

PRESENCE
Next a practitioner must determine “where” to object; specifically, either
inside or outside the jury’s presence. In addition to considering the rules of
evidence and rules of criminal procedure, a practitioner must also abide by
the court’s local rules of practice. Each court applies its own official and un-
official rules of practice, making it imperative for a practitioner to know both

33. This author has personally experienced situations where, even though the author met with
a witness, prepped a witness, and thoroughly reviewed a witness’ statement, at trial, the witness
testified about an unexpected matter.
34. See Mauet, supra note 20, at 10-11; see also FED. R. CRIM. P. 29(c)-(d) (describing the
parameters for post-trial motions for a judgment of acquittal and a new trial).
35. Montz, supra note 2, at 242-51; Mauet, supra note 20, at 556.
36. Judge James Cissell, FEDERAL CRIMINAL TRIALS 404-05 (Matthew Bender 8th ed. 2013)
(explaining that a defendant must meet five requirements to obtain a new trial based upon newly
discovered evidence).
37. Id. at 397-99 (explaining that “the only proper basis for [a motion for acquittal] is that the
evidence is insufficient to sustain a conviction.”).
164 NORTH DAKOTA LAW REVIEW [VOL. 95:1

these rules and the judge’s preference before which he or she practices.38 By
knowing these rules, a practitioner can determine whether to object inside or
outside the jury’s presence. Importantly, prior to objecting, a practitioner
must consider whether a court requires pretrial objections, limits speaking
objections, or requires sidebar conferences.

A. TRIAL BRIEFS
Prior to the beginning of a jury trial, some judges require that practition-
ers submit trial briefs, which outline all foreseeable evidentiary issues. 39 In
these situations, if a practitioner fails to either file a trial brief or fails to in-
clude an objection in a trial brief, a judge may determine that the practitioner
waived that objection. Therefore, when judges require trial briefs, it is para-
mount that a practitioner file as many objections as possible outside the pres-
ence of the jury in this brief.40 However, since trials are fluid and evolve over
time, it is impossible to predict every possible objection. Consequently, when
confronted with unforeseen objectionable testimony, a practitioner should
determine whether a court will limit the manner of objections in front of the
jury.

B. SPEAKING OBJECTIONS
In some instances, during jury trials, courts forbid practitioners from
making “speaking objections,” i.e., objections which include lengthy expla-
nations, in front of the jury.41 Instead, in these jurisdictions, judges only per-
mit practitioners to lodge the “basis” for the objection. 42 For instance, a court
may only authorize a practitioner who believes a question will elicit inadmis-
sible hearsay to state, “objection, hearsay.” The court may then permit the
opposing party to respond with a short response, which forms the basis for
the testimony’s admissibility, i.e., “excited utterance.”43 In these cases, a
practitioner should follow the court’s instructions and provide non-speaking

38. See Mauet, supra note 20, at 2 (explaining that trial procedures and customs vary widely
and that “a trial lawyer’s first job is to learn and understand all of the ‘rules’ that will be applied to
the upcoming trial.”).
39. Id. (stating that “[c]riminal procedural rules vary widely . . . [and] [j]udges, particularly in
federal court, may impose additional limitations on the parties . . . .”); Id. at 520 (explaining that
“[m]any judges also require that each party submit a trial brief setting out their positions on these
disputed issues.”)
40. Id. at 520.
41. Id. at 521-22 (explaining that “[m]ost judges will quickly reprimand lawyers who attempt
to extensively argue in the jury’s presence.”).
42. Id.
43. Id. at 520-23 (providing examples of the typical trial objection process).
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 165

objections. If the court overrules an objection, the practitioner should con-

sider whether to ask the court for a sidebar conference to provide additional
legal authority for the practitioner’s objection.

C. SIDEBAR CONFERENCES
Sidebar conferences are a trial mechanism, which limit the information
presented to the jury.44 Sidebar conferences occur when the court and both
counsel meet outside of the presence of the jury to discuss aspects of the
case.45 Usually, this conference occurs at the “sidebar” of the judge’s bench
so that the jury is unable to hear about what the parties discuss. Most courts
mandate that practitioners make certain objections at sidebar conferences to
prevent the jury from learning about otherwise inadmissible evidence.46 For
example, in a case where the court has suppressed a defendant’s confession
as a result of Fifth Amendment violations, but defense counsel opened the
door to the admissibility of this confession, the court may require that the
opposing counsel request a sidebar conference prior to introducing this con-
fession.
Additionally, courts may defer ruling on the admissibility of a particular
piece of evidence until the evidence is presented at trial.47 During these in-
stances, courts will often request that the moving party request a sidebar con-
ference prior to introducing, or even referring, to this piece of evidence. Con-
sequently, a practitioner can utilize sidebar conferences to lodge objections,
outside the presence of the jury, which have sound legal basis, but little prac-
tical, “jury appeal.” Case in point, a practitioner should object to a witness’
testimony concerning his or her client’s prior bad acts, in the form of prior
conviction which is similar to the crime for which the client is on trial. How-
ever, objecting to this prior conviction as “improper character evidence” may
be legally permissible, the jury will likely want information that the defend-
ant has a similar prior conviction and will not understand why this evidence
is inadmissible. The jury may even believe that the practitioner is attempting
to hide evidence from it. Therefore, in order to both prevent the introduction
of this inadmissible evidence and to maintain creditability with the jury, a
practitioner should request sidebar conferences whenever practicable to bal-
ance these two interests.

44. Id. at 521-22.

45. Id. at 522 (explaining that a “sidebar” is a hearing held outside of the jury’s presence).
46. See id. (stating that “[s]ome judges freely allow such conference; others rarely allow them.
Regardless of the judge’s attitude, do not ask for a sidebar unless the evidentiary issue is substan-
tial.”).
47. Id. at 512 (explaining that “[w]hen in doubt as to whether the judge’s ruling is definitive,
you must renew the objection when the evidence is offered.”).
166 NORTH DAKOTA LAW REVIEW [VOL. 95:1

D. OBJECTION FREQUENCY
The last consideration a practitioner must evaluate is how often to object
inside the presence of the jury. Unfortunately, due to the split-second nature
of objection practice during trial, there is no formula to determine the exact
amount of times to object in front of a jury.48 Oftentimes, a practitioner must
simply use his or her best judgment. Although a practitioner may object as
often as he or she wishes, there is a risk that he or she may alienate the jury.
Specifically, in the author’s experience, there are three risks to “over object-
ing” inside the presence of the jury. First, the jury may determine that a prac-
titioner is acting to “obstruct” the case by preventing it from receiving im-
portant information. 49 Second, the jury may become annoyed at the
practitioner and transfer their annoyance from the practitioner to the practi-
tioner’s client. Third, and most importantly, if a judge consistently overrules
a practitioner’s objections, the jury may conclude that the practitioner is un-
trustworthy and, as a result, disregard his or her arguments. Therefore, in or-
der to alleviate these concerns, it is best to object outside the presence of the
jury in the form of either pretrial objections or through sidebar conferences.

IV. “ABOUT WHAT” TO OBJECT: EFFECTIVE EVIDENTIARY

OBJECTIONS
After considering “where,” to object a criminal lawyer must next deter-
mine about “what” to object. A careful review of the Federal Rules of Evi-
dence reveal that a practitioner has the ability to mount numerous evidentiary
challenges. 50 However, many rules contained within the Federal Rules of
Evidence are unique, fact specific, or antiquated.51 Therefore, this section
will focus on what the author postulates are the five most important eviden-
tiary objections; specifically: relevance under both Federal Rule of Evidence
401 and 403, authentication, hearsay, the Sixth Amendment Confrontation
Clause, and character evidence.52

48. Montz, supra note 2, at 318 (concluding that “[l]awyers have only a fraction of a second
to formulate and decide whether to make objections during a trial.”).
49. See Mauet, supra note 20, at 515 (stating that “[o]n the one hand, jurors resent constant
objections and the lawyers who make them, because information is being kept from them and con-
stant interruptions become annoying.”).
50. See generally FED. R. EVID. 101-1103.
51. See, e.g., FED. R. EVID. 605 (Judge’s Competency as a Witness); FED. R. EVID. 610 (Reli-
gious Beliefs or Opinions); FED. R. EVID. 1003 (Admissibility of Duplicates).
52. FED. R. EVID. 401, 403, 404, 801-803, 901; U.S. CONST. amend. VI (Confrontation
Clause). There are other objections a practitioner may wish to file, such as, motions to exclude
expert testimony under Federal Rule of Evidence 702, and motions to exclude evidence based upon
privilege.
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 167

A. RELEVANCE: FEDERAL RULE OF EVIDENCE 401 AND 403

“Relevance” objections serve as a criminal practitioner’s default objec-
tion.53 This occurs because relevance serves as a “smell test” for evidence
admissibility. Pursuant to Federal Rule of Evidence 401, “[e]vidence is rele-
vant if: (a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in deter-
mining the action.”54

1. Federal Rule of Evidence 401

Based upon Rule 401’s liberal definition of relevance, a practitioner may
legitimately argue that most evidence is relevant so long as it relates to a fact
at issue. Specifically, in the 1972 Advisory Committee Notes, it states
“[p]roblems of relevancy call for an answer to the question whether an item
of evidence, when tested by the process of legal reasoning, possesses suffi-
cient probative value to justify receiving it into evidence.”55 The Committee
Notes further highlight the wide spectrum of relevant trial items by stating
“[t]he variety of relevancy problems is coextensive with the ingenuity of
counsel in using circumstantial evidence as a means of proof.”56 Therefore,
when a practitioner lodges a “relevance” objection it is best to focus less on
Rule 401 and more on Rule 403’s “balancing test,” which prevents admission
of evidence that is more prejudicial than probative.

2. Federal Rule of Evidence 403

Although Rule 401 provides guidance on what evidence is relevant, due
to its wide applicability, practitioners should focus their objections on Rule
403’s parameters. Federal Rule of Evidence 403 states, “[t]he court may ex-
clude relevant evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice, confusing the is-
sues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.”57 Although certain evidence is inherently prejudicial
to a practitioner’s case, i.e., a criminal defendant’s confession, this does not
mean that this evidence is “overly prejudicial.”58 Therefore, in the author’s

53. In this article, “relevance” refers both to Federal Rule of Evidence 401’s description of
evidence and Federal Rule of Evidence 403’s “balancing test.”
54. FED. R. EVID. 401(a)-(b).
55. Id. (Advisory Committee Notes).
56. Id.
57. FED. R. EVID. 403.
58. Id. (Advisory Committee Notes stating that “[t]he case law recognizes that certain circum-
stances call for the exclusion of evidence which is of unquestioned relevance.”); see also Mauet,
168 NORTH DAKOTA LAW REVIEW [VOL. 95:1

experience, a criminal practitioner should concentrate less on the “prejudice”

an evidentiary item possesses and instead concentrate more on whether the
contested evidence is offered for an unfair purpose; for example, to inflame
the passions of the jury, distract from the proceedings, or create mini-trials
on tangential matters.59

3. Practical Application of Federal Rule of Evidence 401 and

403
For example, in a sexual assault case, let’s suppose that the defendant
has HIV. This evidence may be prejudicial because the jury may view the
defendant in a negative light because he has HIV. However, evidence of the
defendant’s HIV status is not overly prejudicial if the evidence is probative
of a material fact at issue in the case and the prosecution has a legitimate
purpose for offering it.60 For example, the defendant’s HIV status may be
relevant if the victim underwent a sexual assault nurse examination and the
forensic evidence obtained from this examination revealed her attacker was
HIV positive. In this example, the prosecution is offering the defendant’s
HIV status not for a pejorative purpose, but instead to link the defendant as
the victim’s attacker. Conversely, in a fraud case, let’s assume one of the
fraud victims commits suicide because he lost his life savings. Although the
fact that this victim is unavailable to testify may be relevant to the case, it is
likely being offered for an unfair purpose. Specifically, introducing evidence
that a victim committed suicide as a result of the defendant’s actions has a
tendency to inflame the passions of the jury by demonstrating that the de-
fendant is an unsavory individual.61 Therefore, although the evidence itself
is prejudicial, by exploring the purpose for offering this evidence, a practi-
tioner can identify whether it is “overly prejudicial.”

B. AUTHENTICATION
Unlike “relevance” objections, authentication objections will likely form
a very small percentage of a criminal practitioner’s objections. “Authentica-
tion” is a term used to designate the way in which a practitioner demonstrates
that a piece of evidence is what it purports to be. Federal Rule of Evidence

supra note 20, at 534 (explaining that “[j]udges quickly become jaded by objections that merely
claim in conclusory fashion that the offered evidence is ‘prejudicial.’”).
59. FED. R. EVID. 403.
60. Id. (Advisory Committee Notes explaining that “[s]ituations in this area call for balancing
the probative value of and need for the evidence against the harm likely to result from its admis-
sion.”).
61. Id. (explaining that “[e]xclusion for risk of unfair prejudice, confusion of issues, mislead-
ing the jury, or waste of time, all find ample support in the authorities.”).
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 169

901 states, “[t]o satisfy the requirement of authenticating or identifying an

item of evidence, the proponent must produce evidence sufficient to support
a finding that the item is what it purports to be.”62 Additionally, Rule 901
lists ten examples that satisfy the authentication requirement; including, “tes-
timony of a witness with knowledge,” “comparison by an expert witness or
the trier of fact,” and “evidence about a process or system.”63
In most cases, a practitioner will be able to authenticate an evidentiary
item through the testimony of a witness with knowledge. 64 For example, to
admit photographs of a crime scene, a practitioner need only call the police
officer who took the photograph or any other witness with sufficient
knowledge to state that what is contained in the photograph depicts the crime
scene.65 Additionally, for business records, a practitioner need only call a
business record custodian with knowledge about that business’ practice.66 In
the above, or similar, situations, a practitioner should not lodge an authenti-
cation objection. Instead, practitioners should attempt to stipulate, whenever
possible, to the authentication of these types of evidentiary items. By stipu-
lating to authentication in these situations, a practitioner accomplishes two
goals: first, since the practitioner is streamlining the trial process, he or she
will gain credibility with the court and opposing counsel; and second, by not
objecting to authentication, a practitioner can focus on making authentication
objections that may impact their client’s case.67 Moreover, even when a prac-
titioner lodges an authentication objection a court may overrule this objection
and instead admit the evidence and instruct the jury that they should give the
evidence the weight they believe it deserves.68
Conversely, if an evidentiary item is scientific or complicated, a practi-
tioner should consider lodging an authentication objection if the opposing
party has failed to call an expert to authenticate this item.69 For example,

62. FED. R. EVID. 901.

63. FED. R. EVID. 901(b)(1)-(10).
64. See Mauet, supra note 20, at 289-341 (providing examples of the foundational questions
needed to authenticate evidentiary items).
65. Id. at 290-91 (explaining that if a witness can only say an evidentiary item “looks like” the
object about which he or she is familiar, “[m]any judges will admit the exhibit with that foundation,
on the basis that [Federal Rule of Evidence 901] does not require more, and that the issue is then
one of weight for the jury.”).
66. Id. at 326-30.
67. See id. at 557 (stating that “[c]lose calls often go to the lawyer who establishes herself as
the evidence ‘expert’ the judge learns to trust . . . They make objections only when they have solid
evidentiary reasons for them.”).
68. Id. at 290-91.
69. See Cissell, supra note 36, at 607 (explaining that “[a]n intelligent evaluation of facts is
often difficult or impossible without the application of some scientific, technical, or other special-
ized knowledge.”).
170 NORTH DAKOTA LAW REVIEW [VOL. 95:1

electronic evidence such as: cellular phone extractions, computer programs,

and metadata require specialized, expert knowledge to authenticate.70
Law enforcement often find incriminating evidence on defendants’ com-
puters.71 If, at trial, a prosecutor seeks to introduce evidence, in the form of
metadata from the defendant’s computer, that the defendant accessed a cer-
tain file on a certain date and time, the prosecutor will need to authenticate
not only the computer file, but also that file’s metadata.72 To accomplish this
goal, the prosecutor should call a computer forensics expert who utilized soft-
ware to examine the defendant’s computer.73 However, if the prosecutor does
not call such an expert witness, a practitioner should lodge an authentication
objection to the introduction of this metadata because the prosecutor has
failed to authenticate it.74

C. HEARSAY
Hearsay objections center around out of court statements.75 As a result,
criminal practitioners will routinely lodge hearsay objections to prevent the
admission of these out of court statements. Federal Rule of Evidence 801
defines hearsay as a statement that the declarant does not make at the current
trial, which a party offers “to prove the truth of the matter asserted in the
statement.”76 Additionally, Federal Rule of Evidence 802 asserts that hearsay
is inadmissible unless an exception is identified in “a federal statute; these
rules; or other rules prescribed by the Supreme Court.”77 However, as a prac-
tical matter, the exceptions to the hearsay prohibition swallow the rule.78 As

70. Id. at 612-17 (providing a list of examples of the “wide variety of matters” about which
federal courts have permitted experts to testify.)
71. As both a prosecutor and defense attorney, this author routinely reviewed electronic evi-
dence that law enforcement obtained from defendants’ computers, including smart phones, through
the execution of search warrants, consent searches, and subpoenas.
72. Mark D. Hansen & Tyler D. Pratt, Follow the Audit Trail: The Impact of Metadata in
Litigation, 84 DEF. COUNS. J. 1, 10 (2017) (articulating that “[u]nder the Federal Rules, it may be
necessary to retain an expert witness to authenticate metadata. This is particularly true if counsel
believes the Court may be skeptical of such evidence, if questions arise regarding the chain of cus-
tody, or there is evidence that the data was manipulated or partially destroyed.”).
73. Id.; see also John Martin, Overcoming Authentication Hurdles to the Admission of Elec-
tronic Evidence, PROOF, Winter 2009, at 13-14 (providing examples for how, under Federal Rule
of Evidence 901(b), a practitioner may authenticate Electronically-Stored Information (ESI); spe-
cifically, that “[w]itnesses with various types of knowledge may testify that ESI is what the attorney
purports it to be. A witness may testify from personal knowledge if they ‘participated in or observed
the event reflected in the exhibit.’”).
74. Hansen & Pratt, supra note 72, at 10; Martin, supra note 73, at 13-14.
75. Cissell, supra note 36, at 625.
76. FED. R. EVID. 801(c).
77. FED. R. EVID. 802.
78. See FED. R. EVID. 801(d), 803(1)-(23), 804, 807; Cissell, supra note 36, at 623-69.
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 171

a result, criminal practitioners must be knowledgeable about all of these hear-

say exceptions.79 Specifically, Rules 801, 803, and 804, and 807 all identify
exceptions to this general prohibition against hearsay.80
For prosecutors, in the author’s opinion the most important hearsay ex-
ception is admission by a party opponent.81 Since the defendant is always the
opposing party in a criminal case, this hearsay exception is not fact depend-
ent. As a result, almost all of a defendant’s out of court statements will qualify
under this exception. Therefore, defense attorneys should refrain from lodg-
ing hearsay objections against a defendant’s statements because these state-
ments will meet the hearsay exception. However, even though a defendant’s
statement may meet a hearsay exception, it is still possible that the statement
runs afoul of Federal Rule of Evidence 403 or the United States Constitution.
In those situations where a defense attorney believes he has a legitimate basis
to exclude admission of a defendant’s out of court statement, he or she should
file a motion in limine to litigate these issues outside the jury’s presence.82
Other important exceptions to the hearsay prohibition are: (1) business
records; (2) state of mind; (3) excited utterance; and (4) medical treatment.83
These hearsay exceptions are much more fact dependent. Consequently, in
order for out of court statements to qualify under these exceptions, the mov-
ing party will need to lay the proper foundation.84 For example, if a party
attempts to introduce a statement under the excited utterance hearsay excep-
tion, the party must establish that: the declarant experienced a startling event,
“a connection between the statement and the event,” and the declarant was
still under the effect of this startling event when they made the statement.85
To accomplish this goal, the moving party will have to describe the startling
event, establish the time period between the startling event and the statement,
and provide objective evidence, such as a description of the declarant’s reac-
tions, to demonstrate that the declarant was under the excitement of the star-
tling event.86 In situations where a party must lay the proper foundation to
establish hearsay exceptions, like the one described above, practitioners

79. Mauet, supra note 20, at 537 (explaining that “[a]s the proponent of any out-of-court state-
ment . . . you need to anticipate that your opponent may object to each statement on hearsay
grounds.”).
80. FED. R. EVID. 801(d), 803(1)-(23), 804, 807.
81. FED. R. EVID. 801(d)(2).
82. Mauet, supra note 20, at 537 (explaining that “[m]ost judges will be happy to make as
many pretrial rulings as possible, knowing that the trial will run more smoothly and the jury will
have fewer interruptions.”).
83. FED. R. EVID. 803(6), 803(3), 803(2), 803(4).
84. See Cissell, supra note 36, at 623-69.
85. Id. at 639-40; FED. R. EVID. 803(2).
86. Cissell, supra note 36, at 639-40.
172 NORTH DAKOTA LAW REVIEW [VOL. 95:1

should consider objecting where the party has failed to establish this founda-
tion.

D. CONFRONTATION CLAUSE
Confrontation Clause objections allow criminal defense practitioners to
assert an important right in criminal cases. Although Confrontation Clause
objections are similar to hearsay exceptions because they relate to out of court
statements, the Confrontation Clause differs from hearsay because it relates
to “testimonial hearsay.”87 The Sixth Amendment to the United States Con-
stitution proscribes that a defendant has the right to confront the witnesses
against him.88 However, this right is not absolute. Instead, the Confrontation
Clause prohibits the prosecution from introducing a witness’ testimonial
statements if that witness does not testify at trial.89
Testimonial statements are out of court statements, such as statements to
law enforcement officers, the primary purpose of which is for court proceed-
ings or to create trial testimony.90 If out of court statements qualify as testi-
monial hearsay, prior to the admission of this statement at trial, the prosecutor
must call the person who made the statement as a trial witness and the defense
attorney must be provided an opportunity to cross-examine this witness.
However, non-testimonial statements, such as declarant statements: to 911
operators during emergency situations, excited utterances, or statements for
medical treatment, do not trigger the Confrontation Clause.91 As a result, the
prosecutor is not required to call the declarants who made these statements
as witnesses to admit them at trial.
In criminal cases, defense attorneys must evaluate whether out of court
statements are testimonial or non-testimonial. Criminal defendants have a
Sixth Amendment right to confront, and cross-examine, those declarants who
made testimonial statements that prosecutors offer at trial. Therefore, in situ-
ations where the prosecutor does not call a witness to testify at trial, but still
attempts to admit this witness’ testimonial out of court statement, defense
attorneys should lodge both hearsay and Confrontation Clause objections.

87. Id. at 654-57.

88. U.S. CONST. amend. VI (Confrontation Clause).
89. See Crawford v. Washington, 541 U.S. 36, 53-54 (2004); Melendez-Diaz v. Massachusetts,
557 U.S. 305, 311 (2009).
90. See Michigan v. Bryant, 562 U.S. 344, 359-60 (2011).
91. See Crawford, 541 U.S. at 51-52; United States v. Santos, 589 F.3d 759, 763 (5th Cir.
2009); Davis v. Washington, 547 U.S. 813, 828 (2006) (holding that 911 phone calls during an on-
going emergency are not testimonial hearsay).
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 173

E. CHARACTER EVIDENCE
Character evidence objections often occur because a defendant or victim
has committed other crimes or bad acts. Since it is often possible to foresee
these evidentiary items, and the opposing party must provide notice of its
intent to offer this evidence, it is best to file a pretrial motion in limine to
exclude introduction of character evidence.92 Federal Rule of Evidence
404(a)(1) states, [e]vidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accord-
ance with the character or trait.”93 Additionally, Rule 404(b)(1) states “[e]vi-
dence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character.”94 However, similar to hearsay, the exceptions
to this prohibition on character evidence swallows the rule. Specifically, Fed-
eral Rule of Evidence 404(b)(2) states, in criminal cases, character evidence
“may be admissible for another purpose, such as proving motive, oppor-
tunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.95
Character evidence is very impactful in criminal cases. Additionally, a
party’s introduction of negative character evidence can tip the scales in a trial
by providing the jury with additional evidence about the victim or defendant.
Therefore, practitioners should almost always object to character evidence
that negatively affects their case.96 Since negative character evidence is in-
credibly fact dependent and contains some inherent prejudice, prior to trial,
practitioners should object to this evidence via a motion in limine.

V. “WHY” SHOULD I OBJECT?

Once a practitioner identifies about what he or she can object to, he or
she must then determine why to object to an evidentiary item. The first reason
to object is to prevent the admission of inadmissible, harmful evidence. A
second reason to object is to prevent an opposing party from running afoul of
the evidentiary rules. However, there is a third, equally important reason to
object to evidence; to preserve the issue for appeal.

92. FED. R. EVID. 404(b)(2)(A) (stating, on request in a criminal case, the prosecutor must
provide opposing counsel with reasonable notice of the character evidence he or she intends to offer
at trial).
93. FED. R. EVID. 404(a)(1).
94. FED. R. EVID. 404(b)(1).
95. FED. R. EVID. 404(b)(2).
96. Mauet, supra note 20, at 170 (stating that “[t]he rules of evidence heavily regulate and
limit the circumstances under and methods by which character evidence can be presented during
trials.”).
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A. APPELLATE REVIEW
Federal appellate courts are courts of limited jurisdiction, meaning that
they only hear matters under certain circumstances.97 One such circumstance,
is the direct appeal from a defendant in a criminal case.98 On direct appeal, a
criminal appellant is able to appeal the lower court’s ruling on a variety of
matters.99 However, criminal defendants frequently appeal lower courts’ ev-
identiary rulings.

1. Abuse of Discretion
Although appellate courts utilize multiple standards of review when they
evaluate appeals, for evidentiary issues, appellate courts generally evaluate a
court’s decision under the abuse of discretion standard.100 This is a highly
deferential standard of review, which will not be overturned unless the court
takes an absolutely unreasonable position.101 However, under an abuse of
discretion standard, a criminal defendant has the ability to argue that the trial
court erred and, as a result of this error, he was prejudiced.102 While appellate
courts do not replace the trial court’s decisions with their own, they still apply
the rules of evidence to the admitted evidentiary item or the rules of proce-
dure to the district court’s ruling and, thereafter, conduct a review of the trial
court’s decisions.103
Nevertheless, before appellate courts will apply the abuse of discretion
standard, at the lower court, the defendant must object to and preserve his

97. THOMAS E. BAKER, A PRIMER ON THE JURISDICTION OF THE U.S. COURTS OF APPEALS
12 (2009) (highlighting both that: “It is a principle of first importance that the federal courts are
courts of limited jurisdiction[,]” and that “[t]he Supreme Court has made this self-executing duty of
the court of appeals quite clear: ‘An appellate federal court must satisfy itself not only of its own
jurisdiction, but also of that of the lower courts in a cause under review.’”) (quoting CHARLES ALAN
WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS 27 (6th ed. 2002); Mitchell v. Maurer,
293 U.S. 237, 244 (1934)).
98. Montz, supra note 2, at 248 (explaining that “an appellate court corrects the legal errors of
the court below.”).
99. FED. R. APP. P. 4(b); FED. R. APP. P. 28(a)(6) (outlining that an appellant’s brief must con-
tain “a concise statement of the case setting out the facts relevant to the issues submitted for review,
describing the relevant procedural history, and identifying the rulings presented for review, with
appropriate references to the record . . . .”).
100. See United States v. White Bull, 646 F.3d 1082, 1091 (8th Cir. 2011).
101. Id.
102. Id. at 1093.
103. See United States v. Wilkins, 139 F.3d 603, 605 (8th Cir. 1998) (holding that a federal
district court did not abuse its discretion when it ordered a new trial because “[t]he District Court is
in the best position to make a judgment of this kind. We do not know what we would have done in
its place. We do know that the District Court did not abuse the broad discretion committed to it in
matters of this kind.”); White Bull, 646 F.3d at 1091.
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 175

objection to an evidentiary issue.104 If the practitioner fails to object to an

evidentiary issue, the appellate court will apply a standard of review that is
more deferential than abuse of discretion.

2. Plain Error
Specifically, when a practitioner fails to object to an evidentiary issue,
appellate courts apply the plain error standard of review.105 Federal Rule of
Criminal Procedure 52 permits an appellate court to consider issues, which
were not objected at the trial court level. Specifically Rule 52 states, “[a]
plain error that affects substantial rights may be considered even though it
was not brought to the court’s attention.”106 However, under a plain error
standard, as opposed to an abuse of discretion standard, a criminal appellant
must show a grave injustice to warrant relief.107 For example, a federal ap-
pellate court described that an error rising to “plain error” would have to
“shock the conscience of the common man, serve as a powerful indictment
against our system of justice, or seriously call into question the competence
or integrity of the district judge.”108

B. OBJECTING TO PRESERVE APPELLATE ISSUES

While practitioners often focus on objections for their ability to prevent
the admission of harmful evidence, for the aforementioned reasons, it is
equally important to focus on the appellate implications of objecting or not
objecting to evidentiary items. Failing to object to an evidentiary issue for a
tactical purpose at trial will cause the appellate court to consider this issue
under an unfavorable standard.109 However, objecting, even if it is outside
the presence of the jury at a sidebar conference, allows a practitioner to pre-
serve this evidentiary issue under a more favorable appellate standard of re-
view.110

104. Montz, supra note 2, at 248 (stating, “[t]herefore, the rule generally provides that, except
with regard to plain error, objections to evidence must be made either before, or contemporaneously
with the evidence sought to be received.”).
105. White Bull, 646 F.3d at 1091.
106. FED. R. CRIM. P. 52(b).
107. United States v. Olano, 507 U.S. 725, 736 (1993) (holding that appellate courts should
only correct a plain error if the error seriously affects “the fairness, integrity or public reputation of
judicial proceedings.”).
108. United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014).
109. Olano, 507 U.S. at 736.
110. White Bull, 646 F.3d at 1091.
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VI. DECIDING “IF” YOU SHOULD OBJECT

After concluding, “when,” “how,” “where,” about “what” and “why” to
object, a practitioner is finally in a position to evaluate “if” he or she should
object to an evidentiary issue. Ultimately, as discussed above, a practitioner
should lodge objections to accomplish one of three purposes: (1) to prevent
the admission of harmful, inadmissible evidence; (2) to preserve the eviden-
tiary issue for appeal; and (3) to prevent opposing counsel from running afoul
of the evidentiary rules. Therefore, a practitioner should focus on making
quality objections over quantity objections.111

A. OBJECTING TO SERVE A CLIENT’S INTERESTS

For example, once a practitioner determines that objecting serves their
client’s interest, the practitioner should object “when,” “how,” “where,” and
about “what,” in a manner that best serves their client. On the other hand, if
a practitioner determines that the law is not on his side, the practitioner should
not object to an evidentiary issue so that he or she may maintain credibility
with the court and jury.112 Determining “if” to object to an evidentiary issue
becomes difficult when the legal authority does not support exclusion of ev-
idence. Although a practitioner can object to the introduction of evidence and
advocate overturning the existing law, this often accomplishes little. Instead,
the practitioner should focus on making objections, for which the legal au-
thority better supports his or her position.113 In the author’s opinion, a few
quality objections outweigh a large quantity of unsubstantiated objections.

B. UNINTENDED CONSEQUENCES OF LODGING OBJECTIONS

Additionally, an unintended consequence of objecting to a particular
item at trial is that the jury pays closer attention to that particular objected to
item.114 For example, during a fraud case, if defense counsel objects to a
hearsay statement that qualifies under a hearsay exception, the jury may re-
member that statement more than had the defense counsel not objected. Since
the hearsay statement was admissible, the defense counsel did not serve his
client’s interest by highlighting harmful evidence. In contrast, it can be harm-
ful for a practitioner to object to inadmissible evidence that is favorable to
that practitioner’s position.

111. See Mauet, supra note 20, at 557.

112. Id. (stating “[c]lose calls often go to the lawyer who establishes herself as the evidence
‘expert’ the judge learns to trust . . . They make objections only when they have solid evidentiary
reasons for them.”).
113. See id.
114. Id. at 515 (stating that “[w]hen an objection is overruled, jurors will naturally pay more
attention to the testimony or exhibit.”).
2020] TO OBJECT OR NOT OBJECT, THAT IS THE QUESTION 177

Imagine defense counsel is seeking to admit evidence of the murder vic-

tim’s text messages between he and the defendant. Additionally, assume that
the prosecutor knows that these text messages describe a previous fight be-
tween the defendant and victim, where the defendant tells the victim, “I’m
going to kill you for hitting on my girlfriend,” and the victim replies “not if I
get to you first.” The defense attorney wants to admit these text messages to
argue self-defense. The prosecutor has the option to either object to these text
messages under “relevance,” hearsay, or improper character evidence. How-
ever, the prosecutor also has the option to not object and argue, contrary to
the defense counsel’s assertions, that the text messages prove that the defend-
ant’s prior outrage at the victim demonstrates that the defendant killed the
victim with premeditation. In these situations, a practitioner must evaluate
the prospective evidence well in advance of trial so that he may determine
whether objecting serves the practitioner’s interests.

C. UNEXPECTED OBJECTIONS
However, what should a practitioner do when, during trial, an unex-
pected objectionable issue arises? Since trial practice is an art and not an ex-
act, predictable science, a practitioner cannot always predict with certainty
what objections he or she needs to be prepared to make. In situations when
an unexpected evidentiary issue arises during trial, a practitioner does not
have the luxury to evaluate all of the factors, but instead must rely upon in-
stinct or his or her gut feeling. The best way to proceed in these cases is to
treat these possible objections as if they were unexpected witnesses that you
can cross-examine.115 Just as a practitioner prepares for cross-examination
by creating an outline of potential cross-examination topics, a practitioner
should create brief outlines for all possible objections.116 To be effective,
these outlines only need to contain the possible objection, the relevant law,
and the opposing party’s response.
In the author’s opinion, the most important rule of cross-examination for
a criminal law practitioner is to not cross-examine a witness unless cross-
examination will benefit the practitioner’s interests. Similarly, in the author’s
opinion, the first rule of objections for a criminal law practitioner is not to
object unless it advances the practitioner’s case. Therefore, when a practi-
tioner is confronted with unexpected, possible evidentiary objections, the
practitioner should not object unless it is helpful to his or her client. For ex-

115. Id. at 271 (stating that a lawyer should “prepare a cross-examination outline for each
witness . . . to outline the cross-examination topics . . .”).
116. See id.
178 NORTH DAKOTA LAW REVIEW [VOL. 95:1

ample, if opposing counsel asks a prejudicial question that “shocks the con-
science,” the practitioner must object. However, if opposing counsel simply
asks a question which elicits hearsay, but is not harmful to the practitioner’s
case, he or she should not object.

VII. CONCLUSION
Although Hollywood portrays objections as the quintessential lawyer
function, the reality is that objections serve important legal functions, and
practitioners should not make objections simply because they “can” make
them. Instead, a practitioner must make objections because the objections
benefit his or her client and “should” be made. However, to determine
whether an objection “should” be made, practitioners must prepare to make
objections in the same way he or she would prepare an appellate brief or
sentencing memorandum; by researching the legal authority, evaluating the
legal ramifications of objecting or not objecting, and by becoming familiar
with the court in which the practitioner practices. Through this process, a
practitioner can identify “when,” “how,” “where,” about “what,” and “why”
to object. After the practitioner answers these five questions, he or she is in
the best position to advocate on behalf of his or her client.
Additionally, after carefully considering all foreseeable objections, a
practitioner is better able to decide “if” he or she should object. This foresight
benefits a practitioner because it allows them to evaluate whether objecting,
even to unexpected evidentiary issues, will benefit their client. Simply put, a
good criminal law practitioner must object not just because they “can” but
because they “should” for their client’s best interest. By following this pro-
cess, when a practitioner exclaims “Objection!” he is not being theatrical for
theatrics sake but is instead making a significant legal challenge to evidence.
Although the practitioner may not make the objection like a Hollywood actor,
he or she can rest assured that this objection will actually have a positive
impact on his or her case.