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Stetson University School of Law
Latimer, Jerome C.


I. Preservation of Error by Objection or Proffer
– Doctrine of consent – if you don’t object, then you consent to the admission
– Contemporaneous Objection Rule
o Timeliness – made after the question is asked but before it is answered
o Must say “I object”
o Specificity
§ General objection – doesn’t specify specific grounds. If overruled, will be sustained on appeal unless
· Evidence not admitted for any purpose
· Specific grounds apparent from context
· Fundamental error
o General objection is not always bad, better than no objection at all
o Point could be too obvious for words – or – lawyer may not know the specific grounds but know that the evidence is objectionable, etc…
o General objection is good if it is sustained because the rules are designed to preserve the status quo.
§ Specific Objection – look at context and be as specific as you can
· State all grounds b/c failure to state one is a waiver of all other grounds
o You need to make all your grounds for objection to the judge to preserve those grounds for appeal. Otherwise you lose those grounds (use it or lose it)
o Untimely objection: listening to answer and then deciding you are going to object
§ No good.
§ Unless question itself is admissible, but the answer becomes one that can be objected to
· Object as quickly as possible to be timely
o Continuing objection – a timely specific objection on one ground preserves for appellate review that evidence and all related evidence
§ Relieves the objecting party from objecting to the same evidence on the same ground
· Be careful with this –
· If objection is overruled on one ground, but then another ground for an objection is raised, you need to object to that (second) ground in order to preserve error
§ Evidence must come from the same source
§ Testimony must fall within the same classification as previously objected
§ Grounds are the same as the prior objection (must be same grounds)
§ Failure to object to same evidence from different source wont waive first objection but may nullify it, render it harmless
– Package Evidence: pg 46 -48 of supp. (how to object when evidence is presented in package deal)
o Objection should specify all specific objections you have to package as a whole AND make specific objections to any part of the package (and direct the court to that part of the package which the objection applies)
o Complaining party must separate wheat from chaff (the court doesn’t have to)
o If you erroneously object to the package as a whole, and should have been directed to only a part, judgment will be sustained on appeal
– Kinds of Error
o Reversible Error – harmful, outcome determinative, properly reversed
§ Objection must state specific grounds for ruling to be challenged on appeal
§ Failure to do so will result in inability to challenge on appeal
§ Proffer should include
· Specific description of the excluded evidence
· A demonstration of the ability to produce it
· Citation of a specific rule, statute, or constitutional provision which justifies its admission
· (optional but helpful) an explanation of how the client would be harmed if the evidence is not allowed
· MUST be timely
§ Reversible error per se for judge to refuse a proffer
o Harmless Error – not outcome determinative and will not be reversed if complaining party objected to trial judge in a timely manner
§ If error occurred, it was harmless
§ Burden on appellant to:
· Demonstrate that there was error
· Demonstrate that the error was properly preserved by objection or proffer
· Demonstrate by the preponderance standard how such error contributed to the adverse decision by the trier of fact
§ Determine whether the error was harmless or harmful by considering the record as a whole and the cumulative effect of multiple errors
§ Chapman Test à Constitutional error may be harmless but there is a presumption that it is harmful, unless the state (appellee) can convince the court that it was harmless beyond a reasonable doubt, the appellate court will reverse
§ It is necessary that each judge conduct an examination of the entire record…including a close examination of the permissible evidence on which the jury could have relied and an even closer look at the impermissible evidence which might have influenced the jury à they must put themselves in the shoes of the jury
§ Harmless error rule doesn’t apply to confrontation clause and testimonial hearsay
o Fundamental Error – obvious and so egregious that error will be overruled (and corrected by the trial judge) even if attorney failed to object (and timely preserve the error)
§ Fundamental error for improper exclusion and admission of evidence but will most likely apply to improper admission of evidence because if improperly excluded without proper proffer it isn’t in the record and the appellate court cannot determine whether it is fundamental
§ Forced confessions, rushed trial
§ “Although a conviction in a case may be affirmed on a harmless error theory, this is not an invita

– FRE 403 – relevant evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusing or misleading the jury or a simple waste of time or a needless presentation of cumulative evidence
– FRE 104(B), FEC 105(2) – Relevancy Conditioned on Fact – when relevancy of evidence depends on the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition
o Court can preliminarily admit it if it is authenticated later BUT this is not self-authenticating à the opposing party will have to make motion to strike evidence that was provisionally introduced because it was introduced subject to the party fulfilling the fact, and he never did
o After making a motion to strike, ask for a remedy:
§ Either ask for a cautionary instruction BUT the jury may not adhere to this limiting instruction
§ Ask for a mistrial
– Authentication – without it you don’t have relevance
o Steps for authentication
§ Identify the object
§ Ask when the witness saw it
§ Ask how the witness knows if it is the same object that he saw at crime scene
§ Ask if object is in substantially the same condition now as it was when you seized it from the defendant
· If not, ask how it has changed
· As long as the explanation of how it has changed will not mislead the jury, then it is fine and you have successfully authenticated
– Conditional Relevancy (where both of two seemingly independent facts must be established before a critical conclusion is possible) applies because – the experiment that the expert performed on the bike, showing that it was defectively designed, is only relevant if the bike was in substantially the same condition that it was 2 years prior
– Direct evidence vs. Circumstantial Evidence
o You have to determine whether something is direct or indirect in context à you have to know the crime being charged
o Direct evidence