Objection Case Analysis

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The decision has the potential for enormous implications, and they are not good ones.

The defense’s objection in this case — “Objection. Hearsay.” — is a commonplace one, and has long been assumed to be a sufficiently specific objection, at least in circumstances like these.

Here, the statement clearly was hearsay, and the defendant objected. The prosecutor responded by saying, “It’s an admission of a party opponent.” The judge then overruled the objection, without further input from either attorney.

Obviously, the declarant — the defendant’s former attorney — is not the defendant herself; thus, the government’s response, that the statement is an admission of a party opponent, cannot reasonably be interpreted to mean anything other than it is an admission by the agent of a party opponent.

Thus, it is unreasonable for the court of appeals to conclude that the general hearsay objection failed to put the district court on notice of concerns about whether the attorney was an agent of the defendant and the scope of his authority.

Suppose the issue is whether the statement is hearsay at all, and resolution of the issue requires some thought, then it would be accurate to say that a simple hearsay objection is insufficient. I once argued successfully that a scrap of paper with my client’s name and some numbers on it was hearsay. Had I merely said, “objection, hearsay,” without explaining how the scrap constituted a statement by a co-defendant, it would have been denied, and the objection would be properly waived for appeal.

However, here the statement was indisputably hearsay; the issue was whether it fits into an exception to the hearsay rule. Nothing more than a simple hearsay objection should have been required in this case preserve the right to appeal.

The court cited two cases to support its conclusion that the defendant failed to preserve the issue: U.S. v. Laughlin, 772 F.2d 1382 (7th Cir. 1985); and U.S. v. Wynn, 845 F.2d 1439 (7th Cir. 1988).

Both are easily distinguishable in the case at bar, however. In Laughlin, the defendant objected on relevance grounds only at trial, and then argued on appeal that the evidence was inadmissible evidence of prior crimes.

In Wynn, the defendant objected only on hearsay grounds at trial, and then, like Laughlin, argued that the evidence was inadmissible evidence of prior crimes on appeal.

Here, the defendant objected on hearsay grounds both at trial and on appeal.

The most analogous case is U.S. v. Kladouris, 964 F.2d 658 (7th Cir. 1992). In Kladouris, the defense attorney asked a government witness what was said to him, and what he said. The prosecutor replied merely, “Objection, judge, hearsay.” The court sustained the objection.

On appeal, the defendant argued that the objection should not have been sustained, because the testimony was being elicited to establish the declarant’s state of mind, rather than to prove the truth of the statements.

The Seventh Circuit properly held the argument was waived, because the defendant did not specifically make the argument in the trial court.

Suppose in the present case that the government made no response after the defendant objected on hearsay grounds, and the court sustained the objection. Pursuant to Kladouris, it would be barred from arguing on appeal that the statement was admissible as a statement by a party opponent.

However, the government did object, on that ground. The relevant issue — was the defendant’s attorney her agent when he made the statement — thus was squarely placed before the district court, unlike in Kladouris.

Admittedly, the defense attorney at trial should have been prepared with specific arguments why his client’s former attorney was not his client’s agent. Whether an attorney is an agent of his client in any given case is a complex question, which has generated lengthy discussion in several cases. See U.S. v. Jung, 473 F.3d 837, 841-42 (7th Cir. 2007)(inadmissible); U.S. v. Harris, 914 F.2d 927, 931-32 (7th Cir. 1990)(admissible).

	Related Article ‘Hearsay’ is insufficient objection

Nevertheless, if a defendant objects on hearsay grounds, the objection should not be waived, merely because the defendant did not cite case law in response to the government’s response that the statement fits into an exception to the hearsay rule.

This is especially true in this case, where the prosecutor provided no explanation why the former attorney should be deemed an agent.

As noted, the issue is a complex one. In Harris, the court wrote, “a more exacting standard must be demanded for admission of statements by attorneys under rule 801(d)(2)(D), ‘in order to avoid trenching upon other important policies’ (cite omitted).”

That did not occur in this case; the trial court found the statement to be an admission by an agent, based on nothing more than the prosecutor’s general response that it was.

If anything, it is the prosecutor’s response to the objection that should be deemed insufficient to preserve the issue for appeal, rather than the defendant’s objection.

As a result of the court’s decision, attorneys must be prepared to counter any response by a prosecutor to a hearsay objection, with an argument why a statement does not fit into one of the hearsay exceptions, or else lose the objection for appeal.

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David Ziemer can be reached by email.