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SUNY Buffalo Law School
Dillon, Kevin M.

You must make an objection when you think the FRE are violated; if you do not make an objection, you cannot appeal
·         [1] Put the court on notice that something is happening that shouldn’t be happening- this allows the court to address the error that is being committed
·         [2] Notify the opponent that he/she is engaging in conduct that is in violation of the rules, thus, they have the ability to correct their presentation
·         [3] If you don’t complain during the course of the proceedings, the appellate courts don’t hear you
Substantial Likelihood Test: The only time an erroneous evidentiary ruling leads to a reversal of the verdict is when the appellate court finds that there was substantial likelihood that the verdict would have been different had the judge made the correct ruling
·         In order to get an appeal you need and erroneous ruling and a demonstration to the trial court that because of such ruling, the verdict was the way it was
Three main types of evidence
·         Objections to testimonial evidence
o        proper question and a responsive answer
·         Objections to real evidence (the knife, the contract, etc)
o        Procedures to admit real evidence
·         Objections to demonstrative evidence
o        Doctor will bring with him or her a model of a spine to show where plaintiff was injured; accident reconstruction
o        Something jury allowed to see in order to help them understand the case
General Objections v. Specific Objections
·         General objection “objection!”
·         Specific “objection ___” hearsay, irrelevant, constitutes evidence of an insurance settlement, no foundation
o        You do better on appeal with specific objections because the appellate division knows what you were talking about
Harmless error: An improper evidentiary ruling that does not create a substantial risk that the verdict
would have been different
·         When a court makes a mistake on an evidentiary ruling, but it is unlikely that the error had a major bearing on the ultimate ruling
·         Court must find that there was a timely objection
·         [1] If evidence is admitted after the court overrules a specific objection there can be no reversal unless the evidence was irrelevant for any purpose
o        AD will first look to see if the evidence was admissible for some other reason; and will always give deference to the trial court [for the lower court to be wrong in the eyes of the AD, they had to be wrong on all bases] ·         [2] If evidence is admitted after an erroneous ruling to a general objection no appellate relief can be granted on a general objection unless the evidence would not have been admissible for any reason whatsoever
o        AD assumes the trial court was right; f there is any theory under which objection could have been sustained, that is what the appellate division will assume the trial court had used
·         NOTE: If opponent is offering some piece of real evidence into evidence; you object, but it is sustained in order to preserve appellate relief, after being denied the opportunity to offer something into evidence it is best to make an offer of proof
o        this sets forth the particular reasons why you wanted this item admitted into evidence, or why you wanted to ask that question, or why to use that

jury] ·         ask for curative instruction – instruct jury that they must not take statement into consideration when reaching their verdict
(d) Plain Error: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court
·         On rare occasions when there has been an obvious error, and no objection, the AD has discretion to provide relief
Government of the Virgin Islands v. Archibald: Archibald appeals conviction of aggravated rape. Victim’s mother testified that victim knew Archibald because he had sex with victim’s sister (which constituted 3rd degree rape) [404(b): no evidence of uncharged crimes] However, Defense counsel did not object until after witness testified (as opposed to right after “How do you know Archibald?” was asked).
·         Issue [1] Was this objection timely? Yes. Archibald’s counsel could not have reasonably anticipated that Williams would offer evidence of a prior crime in response to the government’s question
o        Grounds for objection only became apparent after Williams responded to the question; defense counsel’s brief postponement of objection neither prejudiced the government nor in any way impaired the court’s ability to remedy the asserted error