Article by John W. Poulos
This article reports and analyzes the empirical findings on evidentiary objections. There were several reasons for focusing on objections as a separate unit of analysis. Objections are potent legal tools that can affect the outcome of a trial, they are frequently invoked, and they are often used to delay a trial. Indeed, the objection behavior of at least one of the lawyers in the Manson trial was partly responsible for the charge of incompetence of counsel and for the charge that the trial was unduly delayed. Finally, while the professional literature covering objection procedures and strategy is substantial, no empirically based study of evidentiary objections was found. Objections thus seemed to be a fruitful ground for comparing celebrated and ordinary trials, for investigating charges of delay and other trial defects, for assessing the impact of such defects, for expanding knowledge of these important legal tools, and for indicating needed reforms.
The principal purposes for making an evidentiary objection may be catalogued as follows:
1. To exclude improper evidence;
2. To clarify evidence for the fact finder;
3. To clarify a question for a witness;
4. To protect a witness;
5. To control the form of the examination;
6. To expose or terminate the proponent's use of unfair tactics;
7. To make a record for an appeal;
8. To force the proponent to produce evidence or to take a position favorable to the objector;
9. To intimidate the proponent;
10. To break the pace of the evidence;
11. To call attention to the challenged evidence;
12. To convey information or an argument to the fact finder which would be otherwise impermissible;
13. To give a witness time to reflect;
14. To assist a witness with the answer;
15. To assert control over the trial;
16. To impress the client; and,
17. To impress the gallery (including the media).
The first seven of these listed purposes are also the reasons for the existence of the objection procedure. Consequently, the grounds for objecting embody these seven purposes, though in somewhat different terms. These objection purposes have little or nothing to do with the quantity of the evidence in the trial. Their primary concern is with the quality of the offered evidence or with the protection of some other legally recognized interest. The remaining ten purposes (numbers eight through seventeen) are unrelated to the legal grounds for objecting and have nothing to do with the quality of the evidence or the preservation of some other legally recognized interest. Indeed, with one exception there is no other trial procedure specifically created to vindicate the last ten purposes. They are purely extralegal. They may be achieved only as a consequence of some other procedure, and evidentiary objections are often the procedure of choice. Thus an opponent might make an objection to accomplish one or more of these goals even though there are no colorable legal grounds for doing so. Quite obviously, that objection would have nothing to do with either the quality or the quantity of the evidence objected to, or with the protection of some other legally recognized interest.
Conversely, lawyers do not always object when there are good legal grounds for an objection. The principal reasons for not objecting are the following:
1. The offered evidence or the proponent's behavior is helpful;
2. The offered evidence or the proponent's behavior is not harmful;
3. The improbability of a reversal on appeal;
4. The danger of alienating the fact finder or the trial judge;
5. The danger of forcing the use of more harmful evidence;
6. The danger of highlighting harmful evidence;
7. The danger of having the objection overruled;
8. The danger of educating the proponent;
9. The danger of breaking the pace of favorable evidence; and,
10. The danger of giving the proponent a tactical opportunity, such as conveying an argument to the fact finder that would be otherwise impermissible.
With this perspective in mind, Part II of this article outlines the study's research design. Part III explores objection transactions in terms of their magnitude, their disposition, and their relationship to the amount of trial testimony. The similarities and differences between the objection activity in the two groups of trials are detailed, and it is shown that the celebrated trials have a substantially higher average level of objection activity and a substantially lower average sustention rate than the ordinary trials. After hypothesizing that the lower sustention rate in the celebrated trials is a function of the increased objection activity, Part III analyzes these data and concludes, to the contrary, that no statistically significant relationship exists between the level of objection activity and sustention rates. In other words, the lower average sustention rate in the celebrated trials can not be explained on the basis of their higher average level of objection activity.
Part IV defines trial delay, develops a technique for the identification of objection delay, and discusses five trials in which objection delay occurred. The remainder of Part IV analyzes objection delay and concludes that it consumed significant trial time in two of the five delayed trials. It also finds that further analyses of the data are necessary to pursue the question of remedial measures.
The specific results of this research are summarized in Part V.
About the Author
John W. Poulos. Professor of Law, University of California, Davis. A.B. 1958, Stanford University; J.D. 1962, University of California, Hastings College of the Law.
Citation
56 Tul. L. Rev. 602 (1982)