Don’t do speaking objections in front of members

When a party objects to testimony or documents they should state “I object” and cite the evidence rule or principle and nothing else. You may be tempted, but don’t make a speaking objection.

United States v. Gurfein, NMCCA 2019, is an example of why speaking objections are improper and can cause problems. I have had trial cases where I’ve had to cut trial counsel off from making a speaking objection in front of members. I have appellate cases where the counsel and military judge engaged in a discussion of the objection (sometimes lengthy and detailed) in front of the members–this is improper.

Defense counsel–shut trial counsel down when they make speaking objections in front of members. I know judges want to save time and not inconvenience members, but you have a client who may be adversely affected by what they hear.

Here’s the problem in Gurfein.

• The defense counsel’s objection before members, “[n]o child pornography was found anywhere on any of Major Gurfein’s electronics,” although literally true, was misleading because it implied that all the appellant’s electronic media had actually been searched for child pornography and none was found.
• Trial counsel’s response, “that’s not entirely accurate,” was also misleading because it implied that child pornography had been found on the appellant’s electronics.
• The defense counsel’s subsequent statement, “The electronics were with CID and no child pornography was found during their search,” simply doubled down on his initial misleading statement.

So, both at fault.

• Under the invited reply doctrine, a trial counsel may fairly respond to a claim made by the defense. United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). Or vice versa. Trial defense counsel’s speaking objection invited such a reply, but the reply had to be fair, even if the defense claim was not.
• We find that the trial counsel’s statements, “That’s not entirely accurate,” and “that’s not an accurate statement,” were unfair because they were misleading. There was no evidence of child pornography in appellant’s case. As the trial counsel explained to the military judge in the subsequent Article 39(a) session, his intended point was that not all of the appellant’s electronic media had been searched by law enforcement and so it was misleading for the trial defense counsel to imply that it had been searched and nothing had been found.

None of this back-and-forth should have been conducted in front of the members. The defense counsel should not have made a speaking objection in front of the members in an effort to introduce evidence, even though true[.] And trial counsel undoubtedly erred in responding to the speaking objection with such a misleading statement.

Both trial counsel and trial defense counsel bear some measure of responsibility for this situation. The defense counsel recognized his error when he acknowledged that he was “wrong” and that the trial counsel’s response was “partly . . . my own fault in the speaking objection.”

What does an appellate court have to do?

Having found that the trial counsel’s response was improper, we must next determine whether his response was so prejudicial “that we cannot be confident that the members convicted the appellant on the basis of the evidence alone.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014). We look at “the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.” United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003).

Note the reference to Thompkins. I’ve used that case in other situations, for example, discovery issues, for the proposition that it’s not the degree of fault but the effect of the fault. Of course, it does help if you have evidence the trial counsel’s error was knowing and deliberate.