To exclude improper testimony and other evidence and to preserve for appellate review any erroneous rulings on the admissibility of evidence, counsel must make a timely and proper objection. Failure to object to improper evidence when it is offered is normally held to be a waiver of the objection.4 This rule applies to any action taking place during the trial,5 including jury selection,6 the introduction of testimonial and documentary evidence,7 arguments of opposing counsel8 and jury instructions.9 If, however, a party has no opportunity to object to a ruling or an order at the time it is made, the absence of an objection does not thereafter prejudice the party.10 For example, where it is revealed for the first time on cross-examination that testimony given on direct examination was based on hearsay, a motion to strike such testimony made during or at the conclusion of the cross-examination is proper if the hearsay nature of the testimony was not apparent sooner.11

An attorney has two choices when confronted by an offer of evidence contrary to the Rules of Evidence – object or do not object. If the attorney chooses not to object, the error is not preserved for appeal. If there is a timely objection, the objection should be on the record followed by a prompt, clear ruling on the objection. If a party makes the tactical decision to object, the trial judge must hear from both sides outside the jury’s hearing and definitively rule, thereby preserving both the objection and the basis for the ruling on the record. Credible trial practice standards demand that trial judges dispose of evidentiary objections effectively and efficiently by clear rulings on the record.11.1

Where counsel argue the merits of an objection to evidence at sidebar, with the jury remaining in the courtroom, counsel should take care not to make arguments in a voice loud enough for the jury to hear, to avoid the risk of subjecting the jury to prejudicial information.12 To preserve a record of the objection, counsel should make sure that the court reporter is in a position to record the conference.

If a judge fails to rule on an objection, it is deemed the same as overruling the objection. Further, if evidence is conditionally admitted, the original objection must be renewed upon the failure of the opposing party to meet the condition, or it will be deemed to have been waived.13

4. Supr. Ct. R. 8; D.R.E. 103. Exceptions to this rule on appeal, such as “plain error,” “interests of justice,” or “public policy,” are beyond the scope of this treatise.

5. Hamilton v. Wrang, 221 A.2d 605, 606 (Del. 1966).

6. E.g., Young v. State, 407 A.2d 517, 522 (Del. 1979), cert. denied, 446 U.S. 940 (1980).

7. E.g., Rapid-American Corp. v. Harris, 603 A.2d 796, 802 (Del. 1992); Mercedes-Benz of North America, Inc. v. Norman Gershman’s Things to Wear, Inc., 596 A.2d 1358, 1365 (Del. 1991); Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986), cert. denied, 479 U.S. 869 (1986); Wright v. State, 374 A.2d 824, 831 (Del. 1977); Stevenson v. Henning, 268 A.2d 872, 873 (Del. 1970); State v. Screpesi, 611 A.2d 34, 38 (Del. Super. 1991), aff’d mem., 609 A.2d 669 (Del. 1992).

8. E.g., State v. Bennefield, 567 A.2d 863, 864-65 (Del. 1989); Walls v. State, 560 A.2d 1038, 1049 (Del.), cert. denied, 493 U.S. 967 (1989); Craig v. State, 457 A.2d 755, 762 (Del. 1983); Brown v. State, 105 A.2d 646, 648 (Del. 1954).

9. E.g., Chao v. State, 604 A.2d 1351, 1357 (Del. 1992); Culver v. Bennett, 588 A.2d 1094, 1096 (Del. 1991); Probst v. State, 547 A.2d 114, 119 (Del. 1988); Goddard v. State, 382 A.2d 238, 242 (Del. 1977). See also Super. Ct. Civ. R. 51.

10. Ch. Ct. R. 51; Super. Ct. Civ. R. 46; Super. Ct. Cr. R. 51; Comm. Pls. Ct. Civ. R. 46; Comm. Pls. Ct. Cr. R. 51; Fam. Ct. Civ. R. 46; Fam. Ct. Cr. R. 51.

11. See State Highway Dept. v. Buzzuto, 264 A.2d 347, 350-51 (Del. 1970).

11.1. Alexander v. Cahill, 829 A.2d 117, 129 (Del. 2003). See also Gannett Co., Inc. v. Kanaga, 760 A.2d 1174, 1187 (Del. 2000) (“where a timely objection [to expert testimony] is made on hearsay grounds, the trial judge must determine the admissibility of the underlying data”).

12. State v. McAllister, Cr. A. Nos. IN-91.05.2034.2035, slip op. at 4, Herlihy, J. (Del. Super. Dec. 9, 1991), aff’d mem., 630 A.2d 1102 (Del. 1993).

13. See Remington Mach. Co. v. Wilmington Candy Co., 66 A. 465, 471 (Del. 1907).

© 2010  David L. Finger