Description

If the prosecutor attempts to introduce objectionable evidence or engages in an objectionable practice, the threshold question always is whether the potential benefits of objecting outweigh whatever strategic interests there may be in foregoing an objection. The considerations that go into this cost-benefit analysis are discussed in section 40.2 infra. When counsel concludes that an objection should be made, s/he will need to make it in a manner that is clear and complete enough to preserve a claim of error for appeal if the judge overrules the objection and the defendant is ultimately convicted. Section 40.3 infra canvasses the technical and strategic considerations that counsel should keep in mind for record-protection purposes when objecting to evidence or making a motion to strike testimony. Section 40.8 discusses the standards for moving for a mistrial on grounds of trial error or misconduct and the strategic considerations involved in deciding whether to request a mistrial, arguing for it, and responding to a mistrial motion by the prosecution. In a jury trial, counsel will often need to take precautions to ensure that the jury does not hear inadmissible evidence – or even get a sense of what it might be – before counsel can obtain a ruling from the judge excluding the evidence. If counsel has a basis for anticipating that the prosecutor is going to try to introduce inadmissible evidence, counsel will want to consider making a pretrial motion in limine to exclude the evidence (see § 40.4.1 infra) or an anticipatory objection at trial (see § 40.4.2 infra) – perhaps in conjunction with a voir dire of a witness (see id.) – or using a sidebar conference (see § 40.4.3 infra) to guard against the disclosure of the inadmissible evidence to the jury. Some of these measures may also be appropriate in a bench trial. See § 40.5 infra. Effective use of such precautionary devices depends on careful advance planning. See § 40.4.4 infra. Section 40.6 focuses on objections to improper conduct by the prosecutor or judge. Section 40.7 addresses the considerations involved in responding to prosecutorial objections.

First Page

1760

Source Publication

Trial Manual 11 for the Defense of Criminal Cases

Source Editors/Authors

Anthony G. Amsterdam, Randy A. Hertz

Publication Date

2026

Document Type

Chapter

Edition

11

Rights & Restrictions

CC BY-NC-ND 4.0, https://creativecommons.org/licenses/by-nc-nd/4.0/

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