See also: APPEAL
IMPEACHMENT § 4.  Appeal
OBJECTIONS.

Even a specific objection may be deemed waived if it is not timely at trial.{footnote}United States v. Lopez, 709 F.2d 742 (1st Cir.), cert. den., 104 S.Ct. 187 (1983); United States v. Vesich, 724 F.2d 451 (5th Cir. 1984); Helminski v. Ayerst Labs, 766 F.2d 208 (6th Cir. 1985); United States v. Michaels, 726 F.2d 1307 (8th Cir.), cert. den., 105 S.Ct. 92 (1984).; Esco Corp. v. United States, 750 F.2d 1466 (9th Cir. 1985).

            Lawing v. Chicago Transit Authority, 142 Ill. App. 3d 119, 491 N.E.2d 145 (1st Dist. 1986)(failure to object at trial).{/footnote}  To be timely, an objection in most instances must be made before the challenged evidence is heard or seen by the fact finder.{footnote}Herman v. Hess Oil Virgin Islands Corp., 524 F.2d 767 (3d Cir. 1975).{/footnote}  [BUT WHAT IF BENCH TRIAL.  If no objection is made, the jury may generally consider the evidence, even if it is improper.{footnote}United States v. Jamerson, 549 F.2d 1263 (9th Cir. 1977).{/footnote}  It has been held that where a party not only failes to object but offers the subject evidence itself as part of its case, any objection on appeal to the original use of the evidence is waived.{footnote}Wilco Kuwait (Trading) S.A.K. v. deSavary, 843 F.2d 618 (1st Cir. 1988); United States v. Hall, 845 F.2d 1281 (5th Cir. 1988).{/footnote}

Failure to Object Excused

No opportunity to object.  If there was no opportunity to object beforehand (e.g., because the witness answered quickly, or question itself was not improper), or the objectionable nature of the evidence is not discovered until later (e.g., the witness admits that earlier testimony was based on hearsay), then a motion to strike is necessary to preserve the issue for appeal.{footnote}See Fed. R. Civ. P. 46.  {/footnote}  The motion must be made at counsel’s first opportunity and, as with objections, must set forth a specific legal basis for excluding the evidence. The court will normally caution the jury to disregard any stricken evidence.

Futility of Objection.  If, in light of the trial judge’s remarks on the record,{footnote}U. S. v. Zwillman, 108 F.2d 802, 804 (2d Cir. 1940).{/footnote} or in light the law as it existed at the time of trial, any objection would have been futile, the courts generally will not find waiver.{footnote}United States v. Rivera, 513 F.2d 519 (2d Cir.), cert. denied, 423 U.S. 943 (1975).  See United States v. Kovel, 296 F.2d 918, 923 (2d Cir. 1961) (party must still make offer of proof where evidence excluded).

But see Johnson v. Ashby, 808 F.2d 676 (8th Cir. 1987)(objection must be made even if thought futile and even if it may antagonize judge).{/footnote}  See also MOTIONS–Motion to Exclude Evidence.

Objection Made By Another Party.  One is not required to join in another party’s objection, where both parties are aligned together and the idenity of the party objecting has no bearing on admissibility.{footnote}Howard v. Gonzalez, 658 F.2d 352 (5th Cir. 1981).{/footnote}

Waiver by "Opening the Door"

Even if an objection is timely made, it may nonetheless be deemed waived in light of the objecting party’s trial tactics.{footnote}Check Crockett v. Uniroyal, Inc., 772 F.2d 1524 (11th Cir. 1985). {/footnote}  There are two situations where this generally arises.  The first is where the party has introduced evidence of part of a conversation or occurrence, leaving the trier with an incomplete understanding of what went on.  The other side is permitted to introduce whatever evidence is necessary to cure any misleading impression left, without regard to the additional evidence’s inadmissibility standing alone.{footnote}Clarksville-Montgomery County School System v. U.S. Gypsum Co., 925 F.2d 993 (6th Cir. 1991);  Paul v. Farmland Industries, Inc., 37 F.3d 1274 (8th Cir. 1994)(in age discrimination case, plaintiff opened door to personnel file from prior employer by introducing evidence of work record at that employer); United States v. Salsedo, 607 F.2d 318 (9th Cir. 1979); Cal. § 356.{/footnote} [even if privileged, etc?– check this out ]  This rule does not apply to writings or recorded statements, which are considered separately.  See RELATED EVIDENCE.  [what about hybrid–writing re conversation].  In the criminal context, the doctrine is quite limited, in that it does not permit the prosecution to introduce objectionable evidence or make improper argument in response to the defense, but improprieties on the part of defense counsel are relevant in weighing the prejudice to the defendant of any improper remarks by the prosecution.{footnote}United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); United States v. Napue, 834 F.2d 1311, 1324 (7th Cir. 1987); Check 1 Weinstein 103[2], at 16 (1986)
{/footnote}

The second situation where litigants’ tactics can serve to waive objections is commonly referred to as permitting parties to "fight fire with fire," or as the rule of curative admissibility.  If a party offers inadmissible evidence which is nonetheless admitted by the court, that party will be deemed to have waived any objection to evidence offered by the other side to rebut the prejudice caused by the original evidence, even if independently inadmissible.{footnote}Bogk v. Gassert, 149 U.S. 17 (1893); United States v. Nardi, 633 F.2d 972 (1st Cir. 1980); In re Air Disaster at Lockerbie Scotland on Dec. 21, 1988, 37 F.3d 804 (2d Cir. 1994), cert. denied, Pan American World Airways, Inc. v. Pagnucco, 115 S.Ct. 934, 130 L.Ed.2d 880; Reyes v. Missouri Pacific Railway, 589 F.2d 791 (5th Cir. 1979); McEwen v. City of Norman, 926 F.2d 1539 (10th Cir. 1991)(expert testimony as to ultimate issue).{/footnote} [what about privilege, etc.] 

Waiver by exclusion of adverse party’s evidence{footnote}Cook v. Navistar Intern. Transp. Corp., 940 F.2d 207 (7th Cir. 1991).{/footnote}

WARRANTS 
See ARREST WARRANTS; SEARCH WARRANTS.

WASTE OF TIME (AS OBJECTION) 

A trial court may properly exclude even relevant evidence if its probative value is substantially outweighed by the delay or waste of time involved in presenting the evidence.{footnote}E.g., Scaggs v. Consolidated Rail Corp., 6 F.3d 1290 (7th Cir. 1993)(plaintiff’s proof that there was no evidence of malingering properly excluded as waste of time).{/footnote}  Exclusion has been held an "extraordinary remedy" that should be used sparingly.{footnote} Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 n.2 (8th Cir. 1987); K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1155 (10th Cir. 1985).{/footnote}  On the other hand, it has also been held that a court’s discretion to exclude evidence under this rule is an important tool for avoiling litigation of collateral issues.{footnote}Soller v. Moore, 84 F.3d 964 (7th Cir. 1996)(evidence of previous prior unrelated shooting by same defendant-police officer properly excluded in suit alleging excessive force).{/footnote}  The trial court is in the best position to evaluate the evidence, however, and the required balancing under FRE 403.{footnote}Bohannon v. Pegelow, 652 F.2d 729, 732 (7th Cir. 1981); Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 n.2 (8th Cir. 1987).{/footnote}

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CUMULATIVE EVIDENCE.