How I Decide When to Object in a Massachusetts Criminal Trial

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

Most of the objecting I do in a criminal trial happens before the jury walks in. By the time the first witness is sworn, the evidence I care about has usually been argued in writing, in front of the judge, with the jury somewhere else. What is left for trial is a much shorter list than clients expect, and the discipline is in keeping it short.

What follows is how I use motions in limine, what those motions preserve and what they do not, and how I decide which objections to make once testimony starts. The short version of the last part is that I object far less than people expect, and I do it deliberately.

Why Most of the Argument Happens Before Trial

A motion in limine is a written request, filed before trial, asking the judge to rule on evidence in advance. It is where I want the argument about a prior conviction, a statement my client made to an officer, a photograph, or an expert opinion. At trial I get one sentence and a ruling. In writing I get pages, and the judge has time to read them.

The practical difference is large. An objection at trial is heard by twelve people who do not know why I am making it and cannot be told. The same argument in a memorandum filed three days earlier is heard by the only person whose view of admissibility matters, with citations attached and no audience drawing conclusions about what I am hiding.

So that is where the work goes, and it is the reason pretrial motion practice decides more Massachusetts criminal cases than cross-examination does. I file on the two or three items that determine the outcome. A motion listing fourteen exclusions tells the judge I have not decided which ones matter.

Phone records, text messages, and extraction reports belong in this stage almost every time, assuming they survived the motion to suppress that came before. The foundation questions are technical, the volume is large, and no useful version of that argument can be made in the four seconds available while the exhibit is being handed to the clerk. The detail appears on the page about objecting to digital evidence.

What a Motion in Limine Preserves and What It Does Not

This deserves stating precisely, because the rule changed. For many years a motion in limine preserved nothing unless counsel also objected when the evidence came in at trial. In 2016 the Supreme Judicial Court did away with that requirement. An objection made in a motion in limine, whatever its basis, preserves a defendant’s appellate rights whether or not the defendant objects again at trial. Commonwealth v. Grady, 474 Mass. 715, 719 (2016).

The limitation on that rule is where the point gets lost. Preservation applies only if what is objectionable at trial was specifically the subject of the motion. Id. Asking the judge to bar a witness from testifying at all is a challenge to who may testify. Asking the judge to exclude particular information is a challenge to what may be said. They are not the same motion, and the second one is not preserved by the first.

The Court discouraged something judges used to do as a matter of routine. A judge ought not to indicate at the motion in limine stage that he is saving or preserving a defendant’s appellate rights, because that phrase can lull counsel into failing to object to the part the motion never covered. Id. When I hear it, I take the reassurance and object at trial anyway.

A ruling in limine is also not final, and it is subject to change as the case unfolds. Commonwealth v. Jones, 464 Mass. 16, 18 (2012). A motion I lost at nine in the morning is worth renewing at two in the afternoon, once the Commonwealth’s own witness has changed what the evidence is for. Judges are far more receptive to the second version, because by then they have heard the testimony instead of a description of it.

Why I Object Less Than Clients Expect

Clients watch trials on television and count objections. They should not. Every objection is a message to the jury, and it is almost never the message counsel intends. A lawyer who objects constantly looks like a lawyer keeping something from them, and jurors resolve that impression against the person doing the hiding.

Judges respond the same way. A judge who has overruled six objections in an hour is not in the frame of mind I want when I make the seventh, and the seventh is usually the one that mattered. Credibility with the bench is a finite quantity in a two day trial, and it is spent one objection at a time.

There is a mechanical problem as well. Interrupting a witness in the middle of a damaging sentence means the sentence gets repeated, argued about at sidebar, and remembered. Testimony that would have passed the jury unnoticed becomes the part of the day they discuss at lunch.

So the working rule is straightforward. I object where the evidence would change the verdict, and I let the rest go. Most of what is technically objectionable in a District Court trial is not worth what objecting to it costs.

The Objections I Always Make

The list is short and it does not vary. Anything that puts my client’s criminal record in front of the jury when he has not testified is the first item, because that is the single piece of evidence most likely to produce a conviction on something other than the charge. The related question of whether he testifies at all usually turns on the same analysis.

The second is any testimony that goes past what the motion in limine covered, for the preservation reason above. The third is an officer offering an opinion about guilt, credibility, or what somebody was thinking, which is common and which is the kind of error appellate courts take seriously.

The fourth is not an objection at all. When a witness answers a proper question with something the question did not ask for, the correct remedy is a motion to strike, and a motion to strike is the proper means of eliminating an answer that is objectionable on substantive grounds or because it is not responsive. Commonwealth v. Grady, 474 Mass. 715 (2016). Objecting to the question that was already answered accomplishes nothing.

The Objections I Let Go

Leading questions on background go. So do leading questions on anything not in dispute, and most hearsay that does not hurt. If the prosecutor wants to lead her officer through his badge number and his years on the job, I have no interest in slowing that down.

The more important category is evidence that is objectionable and helpful. This happens far more often than lawyers admit. An officer volunteers a detail that is plainly inadmissible and that also contradicts his own report. I want that in the record, and I want it in without the jury seeing me want it.

I also let go of anything that would produce a limiting instruction I do not want. The jury are presumed to have followed the judge’s instructions. Commonwealth v. Webster, 480 Mass. 161, 171 (2018). That presumption operates in both directions. An instruction telling the jury they may consider a prior act for intent but not for character is an instruction that says the prior act out loud, slowly, in the judge’s voice.

And I let go of the objection I know I will lose where losing it in front of the jury costs more than the evidence does. A recanting complainant’s earlier statement, offered under an excited utterance exception, is usually coming in. Fighting it twice does not change that, and the second fight tells the jury how much the statement worries me.

How I Object

Briefly. The word objection and nothing after it where the ground is obvious, and the ground stated where it is not. Under Mass. R. Crim. P. 22 a party who objects may state the precise legal grounds, but may not argue or further discuss those grounds unless the judge calls for argument. That rule describes how the good trial lawyers in Boston already behave.

Specificity matters more than volume. A general objection can be insufficient where the judge could not know, at the moment it was made, whether the evidence would turn out to be admissible. Commonwealth v. Cancel, 394 Mass. 567 (1985). Where the ground should have been obvious to the judge and to opposing counsel, the failure to state it does not forfeit the point. Id.

The ground I give is the ground I am left with. Where a defendant advanced precise grounds at trial in support of an objection, he may not rely on a different ground on appeal. Commonwealth v. Carlson, 448 Mass. 501, 506 (2007). Relevance and hearsay are not the same objection as foundation. Saying one of them does not save the other, and appellate counsel cannot repair that later.

After the ruling I stop. One sentence at sidebar if the judge invites it, and then I move to the next question. Arguing with a judge in front of a jury has never once improved a ruling, and the jury reads the exchange as a lawyer who did not get his way.

What Happens When I Say Nothing

A prompt objection at trial is a prerequisite to presenting an issue for appellate review. Commonwealth v. Gallison, 383 Mass. 659, 669 (1981). Where no objection was made, the claim is reviewed only for a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

That is a demanding standard, and I say so plainly to the clients who ask why a previous lawyer’s silence cannot be undone. The distance between a preserved error and an unpreserved one is often the distance between a new trial and an affirmance of the conviction.

Which is the reason letting things go has to be a decision rather than a habit. Every item I do not object to is an item I have priced out and declined, knowing what declining it forecloses. A lawyer who stays quiet because he did not notice is not exercising judgment, and the record looks identical either way.

The Rulings I Am Not Going to Win on Appeal

Whether evidence is relevant, and whether its probative value is substantially outweighed by its prejudicial effect, are matters entrusted to the trial judge’s broad discretion and are not disturbed absent palpable error. Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010).

So an objection built on balancing is close to unwinnable above the trial court, and that changes how I spend it. I make the record because the record has to exist. I do not build a defense on the hope that an appellate court will second-guess how one judge weighed prejudice on one morning.

What does get reversed is a category error: hearsay that fits no exception, an opinion beyond the witness’s qualification, a confrontation problem in the way a substitute analyst was used. Those are the objections I protect, and protecting them means not spending the judge’s patience on the ones that were never going anywhere. The same instinct governs how I handle cross-examination.

The Order in Which These Decisions Get Made

An objection in front of a jury is the last step of a decision that began weeks earlier. What has to be kept out for the defense to work, what I can live with, and what I would rather have in evidence than argue about are questions I answer while writing the motions, not while a witness is talking.

By the time the panel is seated, that list is fixed. It shapes what I can say in the opening statement, because I will not describe evidence a ruling may exclude, and it shapes what I look for during empanelment, because a juror’s tolerance for a particular kind of proof matters more once I know that proof is coming in.

The lawyer objecting to everything has not decided what the case is about, and by the second afternoon the jury and the judge can both tell. Every fight I chose surfaces again in the closing argument, which is the only part of the trial where I get to explain why those choices mattered.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and tries cases in the District Courts and Superior Courts of Greater Boston. Serpa Law Office can be reached at 617.936.0201.