Robbins: Objections, side bars, and offers of proof
You thought you knew it all.
Snuggled in your jammies, you’ve had your blood aboil over “To Kill a Mockingbird,” memorized “12 Angry Men,“ lip-synced to ”A Few Good Men,“ and turned yourself into a pretzel over ”Witness for the Prosecution.“ You might have even tried on your best, “Objection, your honor” in front of the mirror when no one was watching.
But that’s not the half of it.
In the immortal words of Ron Popiel, “But wait … there’s more!”
Objections are the easy stuff. It is a protest by a lawyer of some goings-on in the courtroom. A question is asked and like a Whack-a-Mole evading the mallet, up pops an attorney, finger poignantly raised with an “I object!”
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When a lawyer says “objection” during court, he is telling the judge that he or she thinks his or her opponent violated a rule of procedure or else a rule of the case. The judge’s ruling determines what the jury is allowed to consider.
The rules of evidence are exactly what they sound like: They are rules the court and lawyers follow which spell out what is permitted to be introduced into a trial. The rules of the case are comprised of rulings before the trial begins that dictate specific matters on which the judge has already ruled that will not see the light of day before the jury.
Often, these are in the form of rulings on motions in limine, or motions that were brought by one side or the other on the cusp of trial asking that certain evidence be found inadmissible.
Often, when the lawyer pops up with his or her objection, the first words from his or her mouth are, “I object, your honor!” But then you’ve got to back it up.
A bald objection has all the worth of a defaced penny. In order to give it heft and value, the lawyer has to state the grounds upon which the objection is based. “Leading, your honor!” or “Hearsay!” or “Assumes facts not in evidence!” or so on. There are about as many grounds upon which to object as there are stars in the universe. OK, I’m embellishing a bit, but there are lots.
The judge may sustain the objection, overrule it, or sometimes ask the lawyer conducting the examination to rephrase the question to eliminate the objectionable bits.
What an objection may lead to, before the judge rules, is an offer of proof or a side bar. These are kissin’ cousins of the law.
An offer of proof is a lawyer’s response to opposing counsel’s objection to the admissibility of evidence at trial. When the first lawyer pops up like a Whack-a-Mole dodging the whack of the mallet, the other guy — the one who prompted the objection in the first place — may get a second at bat. “Offer of proof, your honor,” he or she may respond.
An offer of proof serves two purposes: providing the proponent of the evidence the opportunity to persuade the judge not to exclude the evidence, and preserving the error on the record for appellate review. A lawyer’s goal with an offer of proof is to describe the evidence, explain the purpose of introducing the evidence, state the grounds for admissibility, and sufficiently inform the appeals court (should the case one day go there) of the consequences of excluding the evidence.
After all the objecting, responding, and gesticulating, the judge will rule.
But wait! What about sidebars?
No, no, these are not portable drinking establishments that are rolled out in the courtroom. Instead, a sidebar is an opportunity for the judge and legal counsel to have a little chat out of the hearing of the witness and the jury. When a sidebar is requested by one of the lawyers or the judge, most times, the lawyers approach the bench, a white noise device is activated to assure the jurors do not overhear the discussion and, white noise notwithstanding, the judge and lawyers speak in whispers.
In a recent jury trial of mine where masks were required at all times, to be heard above the white noise and through the face masks was a challenge.
“Your honor, may we have a sidebar please?”
So what is it?
It is an opportunity for the attorneys to approach the judge and speak to him privately during the course of testimony at trial. Often, it consists of a discussion about a legal issue of pertinence to the case that is best resolved out of earshot of the witness and the jury.
I like to think of trials as dance. Objections, offers of proof, and sidebars are just a few of the tango steps any lawyer who makes his or her living in the courtroom must effortlessly master.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or firstname.lastname@example.org. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.