If you’ve ever watched a courtroom drama, you’ve seen the defense stand and call out, “Objection!” The presiding judge will then smack down his gavel and say, “Over-ruled,” or “Sustained.” You might be surprised to learn that it isn’t enough in a court of law to just shout out, “Objection.”
Not Properly Preserved
There is a sentence completely unloved by defense lawyers. It goes something like this: “This issue before us was not properly preserved for appellate review, and is therefore now not cognizable.” What this means is that someone did not follow up on an objection with the correct paperwork, or did not follow through with an objection before the jury was fully selected. As a result, the issue doesn’t have the backing of documentation to show a good reason for “appellate review,” which is the process of appealing a lower court decision in a higher court. Something that is cognizable is an item that is clearly identifiable and easy to see. As such, a cognizable thing would be an error that the court would be able to act upon. When documentation is not present, then the objection is simply thrown out.
Preserving an Objection
It isn’t enough to stand up in a court of law and shout, “Objection!” The objection needs to be followed up with paperwork or another process that states the specific reason for the objection. These processes can be a post-hearing memorandum, a motion, an argument on the record of why something is a legal error or a written notice of an objection. When the correct process is not followed, the reasoning becomes inadmissible as a basis for appeal, and the opportunity to re-examine the situation is lost. Or, to put it another way, someone didn’t do the right homework.
One of the techniques associated with objecting is suppression of evidence. What this means is that certain sorts of information might not be admissible in a court of law because of the way it was collected. For example, if the defendant was arrested subsequent to a search and seizure that did not follow correct procedure, any evidence collected at that time would not be allowed. The evidence might be factual and correct, but the way it was obtained violated rights set forth under the fifth and sixth amendments.
Another reason why evidence might not be allowed is if the defendant revealed the information before he was read his rights or if it was discovered before he had his lawyer present.
With that said, it is essential that the reasons for the objection are documented so that the objection can be “properly preserved.”
Ways around Suppression
Evidence can be readmitted and allowed under certain circumstances. For example, if the judge rules that it would be likely that the evidence would have been revealed anyway, it can be admitted. “Good faith” which means that everyone believed they were acting properly. Or it was discovered from a source other than the one that caused the problem.
Tip of the Iceberg
This is just a tiny part of the many reasons why an objection has to be more than an attorney standing up and shouting, “Objection! Objection!” As with many things, it is all about the documentation and following procedure.