 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
City of Fargo v. Erickson7/29/1999
the question is asked, since the question is likely to indicate that it calls for inadmissible evidence. Then counsel must, if opportunity affords, state her objection before the witness answers."
"But sometimes an objection before an answer to a question is not feasible. A forward witness may answer before counsel has a chance to object. A question which is not objectionable may be followed by an objectionable unresponsive answer. Or, after the evidence is received, a ground of objection to the evidence may be disclosed for the first time in the later course of the trial. In all these cases, an "after-objection" may be stated as soon as the ground appears. The proper technique for such an objection is to phrase a motion to strike out the objectionable evidence, and to request an instruction to the jury to disregard the evidence. Counsel should use the term "motion to strike," as just indicated, but it seems that any phraseology which directs the Judge's attention to the grounds as soon as they appear, and asserts the objection, should be sufficient."
Charles McCormick, McCormick on Evidence § 52, at 200-201 (4th ed. 1992) (emphasis added) (footnotes omitted.)
[ ] The record reflects that nothing objected to came into evidence:
"ATTORNEY O'KEEFFE: Okay. What was the defendant's response to your question whether or not he had been drinking the second time?"
"OFFICER POTTER: He said he had not been drinking anything."
"ATTORNEY O'KEEFFE: Okay. What did you do then?"
"OFFICER POTTER: I asked him if he would consent to a breath test."
At this point there is no objection and no motion to strike.
"ATTORNEY O'KEEFFE: Okay. And what - what happened?"
"OFFICER POTTER: He consented to take one."
Then the first indication of an objection.
"ATTORNEY WOODS: Well, Your Honor, I'm going to object to this. I brought this up earlier, too, and you said there would be big trouble -"
"ATTORNEY O'KEEFFE: Strike that question."
"ATTORNEY WOODS: Too late."
The court then asks what the objection is.
"THE COURT: What? Do you have an objection?"
"ATTORNEY WOODS: Yes."
"THE COURT: State it."
"ATTORNEY WOODS: What he's about to testify is inadmissible in the case law and your ruling."
There was no objection to anything testified to, and no motion to strike. The only objection is to "what he's about to testify to." But the record reflects that even though the objection was overruled, the witness never testified to what he was "about to testify to."
"THE COURT: Overruled."
"ATTORNEY WOODS: Overruled?"
"THE COURT: Overruled."
"ATTORNEY WOODS: This is State v. Schimmel, Your Honor."
"THE COURT: Overruled."
"ATTORNEY O'KEEFFE: Officer, let's skip what we were just talking about. Let's go right to field sobriety tests. Did you perform those?"
[ ] This Court explained in In Interest of S.W., 290 N.W.2d 675, 678 (N.D. 1980):
"This court stated many times that an assignment of error in the admission of evidence will not be reviewed on appeal unless proper and timely objection is made to the admissibility thereof, and that the admissibility of such evidence cannot be challenged for the first time on appeal." State v. Moore, 286 N.W.2d 274 (N.D. 1979); Grenz v. Werre, 129 N.W.2d 681 (N.D. 1964); Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897 (1951).
We noted, in State v. Moore, supra, that this rule is in harmony with current Rule 103, NDREv,
Page 1 2 3 4 5 6 7 North Dakota DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|