TIMELY AND EFFECTIVE OBJECTIONS
Thomas J. Curcio, Esq.
Law Office of Thomas J. Curcio, P.C.
707 Prince Street
Alexandria, VA. 22314


As in Life, Timing in Objections Is Everything

The "contemporaneous objection" rule requires that an objection to the trial court's ruling be made with reasonable certainty at the time the ruling is made. This rule is codified in both the Rules of the Virginia Supreme Court and the Court of Appeals. Rule 5:25 of the Supreme Court provides, in pertinent part, that: "Error will not be sustained to any rulings of the trial court...before which the case was initially tried unless the objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice." Rule 5A:18 of the Court of Appeals provides: "No ruling of the trial court or the Virginia Worker's Compensation Commission will be considered as a basis for reversal unless the objection was stated together with the grounds therefore at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal."

In 1970, the legislature passed Va. Code § 8.01-384, which eliminated the requirement that to preserve an issue for an appeal, a party had to both object to the ruling and note an exception to the ruling. 1B Mich. Jur., Appeal and Error, § 103, p. 267 (1995 Repl.). For a case discussing the prior rule requiring both an objection and an exception to preserve the issue for appeal, see Russo v. Commonwealth, 207 Va. 251, 257, 148 S.E.2d 820 (1966).

Va. Code § 8.01-384 provides as follows:

Formal exceptions to rulings or orders of the court shall be unnecessary; but for all purposes for which an exception has heretofore been necessary, it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him on motion for a new trial or on appeal. No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again in order to preserve his right to appeal, challenge, or move for reconsideration of, a ruling, order, or action of the court. No party shall be deemed to have agreed to, or acquiesced in, any written order of a trial court so as to forfeit his right to contest such order on appeal except by express written agreement in his endorsement of the order. Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.

B. The failure to make a motion for a new trial in any case in which an appeal, writ of error, or supersedeas lies to or from a higher court shall not be deemed a waiver of any objection made during the trial if such objection be properly made a part of the record.

While requiring that a timely objection be made, this Code section has been interpreted as easing the harsh results of the contemporaneous objection rule. See Friend, The Law of Evidence in Virginia § 8-2 (6th ed. 2003).

The contemporaneous objection rule applies to all cases, both at law and in equity, including divorce. Lee v Lee, 12 Va. App. 512, 514-515 (1991), citing Smith v. Smith, 4 Va. App. 148, 153, 354 S.E.2d 816, 819 (1987);  HYPERLINK Zipf v. Zipf, 8 Va. App. 387, 392, 382 S.E.2d 263, 265 (1989); HYPERLINK Taylor v. Taylor, 203 Va. 1, 5, 121 S.E.2d 753, 756 (1961). 

Note also that the contemporaneous objection rule applies to all rulings of the court, not just trial evidentiary rulings. Lee v Lee, 12 Va. App. 512, 515. The policy underlying the rule is that the trial court, when confronted with the reasons for an objection at the time of the ruling, will be better able to properly rule thereon, which will ultimately reduce the number of appeals. See Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736 (1991). “The main purpose of requiring timely specific objections is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. In addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding.” Barr v. Commonwealth, 2002 Va. App. LEXIS 218 (2002), citing Ohree v. Commonwealth, 26 Va. App. 299, 307, 494 S.E.2d 484, 488 (1998) ( quoting Weidman v Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)).

Endorsing a final order "Seen and Objected To" without having articulated the reasons for the objections in some form in the record fails to comply with the rule. Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736 (1991). Such an endorsement is sufficient to satisfy Rule 5A:18 only if "the ruling made by the trial court was narrow enough to make obvious the basis of appellant's objection." HYPERLINK Mackie v. Hill, 16 Va. App. 229, 231, 429 S.E. 2d 37, 38, 9 Va. Law Rep. 1163 (1993).

Raising a sufficiency of the evidence argument in closing argument, where that issue had not been argued in a motion to strike, is insufficient to preserve that issue for appeal. "In a jury trial, the closing argument is addressed to the jury, not the trial judge, and does not require the trial judge to rule on the evidence as a matter of law. Only a motion to strike the evidence accomplishes that objective [of preserving a sufficiency issue] in a jury trial." HYPERLINK Campbell v. Commonwealth, 12 Va. App. 476, 481, 405 S.E.2d 1, 3 (1991) (en banc).

Be Wary of Waiver

Failure to object to the evidence is a waiver. Burns v. Board of Supervisors, 227 Va. 354, 363, 315 S.E.2d 856, 862 (1984). But see Zook v. Commonwealth, 31 Va.App. 560, 569, 525 S.E.2d 32, 36 (2000) wherein the court affirmed the trial court’s ruling that the Commonwealth had not waived its hearsay objection even though it had not objected until after the witness testified. See also Esser v. Commonwealth, 2000 Va. App. LEXIS 438 (2002) wherein the Court of Appeals ruled that the defendant did properly preserve a hearsay objection at trial by objecting to the testimony as hearsay and where the Commonwealth’s attorney argued “…it would be hearsay evidence, but it is a clear exception to the hearsay [sic] excited utterance exception to the hearsay rule.” The appellate court observed that the trial judge had the opportunity to consider the specific argument made and rule on that basis. But see Barr v. Commonwealth, 2002 Va. App. LEXIS 218 (2002), wherein the Court of Appeals ruled that the trial judge in a bench trial had not abused his discretion in ruling that defendant’s objection to documents as business records was untimely as it was not made until after the witness concluded testifying about the hearsay documents. (Note that appellant court’s ruling focuses more on the fact that the documents were admissible as business records and were ultimately admissible even if a timely objection was made.)
Recent Virginia Supreme Court cases make clear that trial counsel must be certain to obtain a ruling on any motion or evidentiary ruling that may form the basis of an appeal. Otherwise, that issue will be deemed waived. In Green v. Commonealth, 266 Va. 81, 580 S.E.2d 834, (2003), cert. denied, 2004 U.S. LEXIS 1284 (2004), the defendant Green moved for a change of venue before the start of the trial on the basis of adverse publicity. The trial court heard the motion and took it under advisement. Green did not object to the trial court’s taking the motion under advisement. Subsequently, voir dire was conducted, and before counsel exercised their preemptory strikes, the trial judge asked if there were “any preliminary matters before we bring the jury in?” to which Green’s counsel responded no. At the conclusion of the penalty phase of the trial, the judge remarked that Green had moved for a change of venue, that he had taken it under advisement, and that he considered the motion denied at the time the jury was empanelled. On appeal, Green assigned as error the trial court’s denial of his change of venue motion. Citing Rule 5:25, the Commonwealth argued that the Court was barred from considering the issue because Green did not renew his motion for a change of venue either after voir dire was completed or before the jury was empanelled and sworn. Green responded by stating that it was obvious that the judge new the motion was still pending based upon his announcing his ruling at the end of the penalty phase. Additionally, Green argued that he reminded the court of the outstanding motion when, just prior to the commencement of the voir dire, he introduced into evidence affidavits and newspaper articles previously attached to his motion. In rejecting Green’s arguments, Justice Kinser, speaking for a unanimous court, wrote:

We do not agree with Green's position. The posture of the change of venue motion in this case is analogous to the situation presented in HYPERLINK Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d 595, 5 Va. Law Rep. 1837 (1989). There, the defendant moved for a change of venue but requested that the motion be continued in order to determine whether a jury could be empanelled. HYPERLINK Id. at 306, 377 S.E.2d at 597. The defendant agreed that he could renew the motion if, as a result of jury voir dire, there was a problem. Id. Because the defendant never renewed the motion, we refused to consider his contention on appeal that the trial court had abused its discretion by failing to grant a change of venue. Id. Although Green did not agree to continue his change of venue motion as did the defendant in Hoke, Green, however, did not object to the circuit court's decision to take the motion under advisement pending the outcome of voir dire. Consequently, it was incumbent upon Green to renew the motion before the jury was empanelled and sworn, or at least remind the court that it was still pending and that he wanted the court to rule on it. Cf. HYPERLINK Lenz, 261 Va. at 462-63, 544 S.E.2d at 305-06   (pretrial motion waived when defendant failed to request a ruling from the trial court). Indeed, that was precisely the procedure followed by the defendant in HYPERLINK

2 Thomas v. Commonwealth, 263 Va. 216, 559 S.E.2d 652 (2002), a case in which this Court reversed a trial court's refusal to grant a change of venue. Thomas filed a pre-trial motion for a change of venue, which the trial court took under advisement, but Thomas, unlike Green, renewed the motion following voir dire. HYPERLINK Id. at 230, 559 S.E.2d at 659. Green, 266 Va. 81, 94.In Riner v. Commonwealth, 268 Va. 296, 601 S.E.2d555 (2004), the Supreme Court again had occasion to consider whether the defendant had waived his motion to change venue. In Riner, the defendant moved pre-trial for a change of venue because of prejudicial pre-trial media coverage of the case. Following a hearing, the trial court took the motion under advisement. After another hearing, the court again took the motion under advisement stating that if selecting a jury “becomes a problem, then we will change venue.” Riner did not object. Following his conviction, Riner assigned as an appeal issue the trial court’s denial of his motion to change venue. In ruling that Riner had waived that part of his venue motion based on pre-trial publicity, Justice Kinser, speaking for the majority, wrote:
Like the defendant in HYPERLINK Green, Riner did not object to the trial court's decision to take the change of venue motion under advisement. Thus, it was incumbent upon him to renew that motion or remind the court that it was still pending at some point before the jurors selected to hear the case were sworn. Since he failed to do so, Riner's argument for a change of venue because of pre-trial publicity is waived. See Rule 5:25. Riner, 268 Va. 296, 310.The Court in Riner also had occasion to consider whether the defendant had properly preserved his objection to the admissibility of a double hearsay statement. In the trial court, in support of its contention that the defendant murdered his wife, the Commonwealth offered the testimony of the wife’s friend. Riner objected to the expected testimony on the grounds of double hearsay, stating it didn’t show Denise’s state of mind. The Commonwealth responded that any threats the defendant made to his wife were admissible to show the relationship of the parties, his intent and motive. The court, stating that the testimony “shows threats of violence in the relationship between the parties; state of mind of the accused”, allowed the testimony. Riner, 268 Va. 296, 323. The friend testified “[Denise] did say that [Riner] had told her that if she tried to leave him that he would take the kids away and that she would never see them again.” The friend further testified that “[Denise] said that [Riner] told her that if she tried to leave him and take the kids that he would kill her.” On appeal following his conviction, Riner assigned as error the admission of the double hearsay statements as failing to satisfy the requirement that both hearsay statements each meet an exception to the hearsay rule as required. Riner, 268 Va. 296, 324. See West v. Commonwealth, 12 Va. App. 906, 910, 407 S.E.2d 22, 24 (1991). In concluding that Riner waived his challenge to the double hearsay statement by not calling to the attention of the trial judge that his ruling only addressed the first level of hearsay (statements by Riner to his wife Denise) and not the second level of hearsay (statements by Denise to the friend), Justice Kinser wrote:

Riner's failure to renew his objection or bring to the trial court's attention the fact that it had not ruled on his objection challenging the second level of hearsay is analogous to the situation addressed by this Court in HYPERLINK Green, 266 Va. 81, 580 S.E.2d 834. As already explained, the defendant there did not renew his change of venue motion,' previously taken under advisement by the trial court, before the jury was empanelled and sworn, nor did he remind the court that it had not ruled on the motion. HYPERLINK Id. at 94, 580 S.E.2d at 842. We refused to address the defendant's assignment of error that the trial court had erred in refusing to grant a change of venue because the defendant had waived the issue. HYPERLINK Id. at 95, 580 S.E.2d at 842. We reach the same result here. Riner's objection to Brickey's testimony focused on the second level of the hearsay. He claimed that Denise's repeating the threat to Brickey did not fall within an exception to the hearsay rule thus making the entire statement inadmissible. See HYPERLINK West, 12 Va. App. at 910, 407 S.E.2d at 24. Riner did not challenge both levels of the hearsay nor did he need to do so. However, by failing to bring to the trial court's attention the fact that it had ruled only on the admissibility of the primary hearsay in the statement, Riner did not afford the trial court the opportunity to rule intelligently on the issue now before us. See HYPERLINK Johnson v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002) (trial court must have "an opportunity to rule intelligently on a party's objections," thereby "avoiding unnecessary mistrials or reversals"). In that circumstance, the issue is waived on appeal. See Rule 5:25; HYPERLINK Lenz, 261 Va. 451 at 463, 544 S.E.2d 299 at 306 (failure to request ruling on pretrial motion waived issue on appeal); HYPERLINK Hoke v. Commonwealth, 237 Va. 303, 306, 377 S.E.2d 595, 597, 5 Va. Law Rep. 1837 (1989) (failure to renew change of venue motion waived the issue under Rule 5:25); cf. HYPERLINK Homer v. Dep't of Mental Health, 268 Va. 187, 194, 597 S.E.2d 202, 206 (2004) (failure to assign cross-error on an issue the Court of Appeals did not address waives further appellate review of the issue).

Give and Ye Shall Receive a.k.a Offers of Proof

If an objection is sustained, counsel must preserve for the record what the evidence would have been if not excluded. "When the court sustained the objection to the question it was incumbent upon the defendant to make the record show the expected answer." Owens v. Commonwealth, 147 Va. 624, 630, 136 S.E. 765 (1927) Failure to do so deprives the appellate court of knowing what the excluded evidence would have been. See Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977) (A...when testimony is rejected before it is delivered, an appellate court has no basis for adjudication unless the record reflects a proper proffer.") The proffer may be in the form of (1) a unilateral statement by counsel, if unchallenged, as to what the excluded testimony would have been; (2) a mutual stipulation by the parties as to what the testimony would have been; or (3) the witness may testify for the record in the absence of the jury. See Friend, The Law of Evidence in Virginia, § 8-6 (6th ed. 2003); Whittaker v. Commonwealth, 217 Va. 966, 234 S.E.2d 79 (1977).

In the recent case of Rose v. Jaques, 268 Va. 137, 597 S.E.2d 64 (2004), the Court had occasion to consider whether sufficient proffers of excluded evidence were made in the trial court and preserved for the record on appeal. One such piece of evidence involved testimony by a defense neuropsychologist that the plaintiff Jaques was a malingerer. In ruling that there was no evidence in the record that the defense neuropsychologist would have so testified, Justice Agee, speaking for a unanimous court, wrote:
The trial court had the opportunity to hear Dr. Peck's testimony and view his independent medical examination report, including the diagnoses. The report does not appear in the record. The only portion of Dr. Peck's report relevant to malingering and available in the record is found excerpted in a pleading Jaques submitted to the circuit court where he stated his concerns "are not sufficient to a degree where a formal diagnosis of malingering can be offered." If Dr. Peck did, as Stow Mills asserts, conclude in his independent medical examination report that Jaques was malingering, Stow Mills has failed to present this Court with a properly preserved record. There is thus no evidence that the trial court abused its discretion by excluding Dr. Peck's testimony concerning malingering. Rose, 286 Va. 137, 155.
The defense in Rose also offered into evidence surveillance videotapes of plaintiff taken during the trial which it contended showed plaintiff doing activities she claimed at trial not to be able to do. The Court concluded that the issue was not properly preserved in the record. In doing so, Justice Agee wrote:
After the trial court granted Jaques' motion to exclude the surveillance videotape, Stow Mills' counsel requested "that a set [of the videotapes] be filed with the record at some point during this trial as proffered evidence as to what would have been put before the Court." No such filing appears in the record. The appellant is charged with presenting a proper record on appeal sufficient for this Court to review the error assigned. HYPERLINK

The Moral is: Cross your T’s and Dot Your I’s
In summary, Rules 5:25 and 5A:18 and Va. Code § 8.01-384, and the cases discussed above, require that trial counsel make timely objections, clearly articulate the bases of the objections, make certain that all objections are ruled on, and that proffers of excluded evidence be made and included in the record.*

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