To Object or Not to Object, that is the Question
By: April Campbell
Preferring not to object too much at trial is a lawyer’s tactical call. “Jurors don’t like it,” trial aficionados will tell you. “They’ll get annoyed.” “They’ll think you are trying to hide something.” We pay heed to such advice. The number one rule of MacCarthyism is to make jurors like you, after all.
But sometimes, objecting is important. Take Zimmerman’s trial, for instance. State v. Zimmerman, 10D. Franklin No. 18AP-75 (Jan. 7., 2020). Was it worth fighting potential juror irritation by objecting when an officer started parroting the substance of his interview with the alleged victim to the jury? What about when an officer tells the jury he believed the alleged victim was being truthful?
Absolutely. The Tenth district said so again this month, in refusing to reconsider its decision to reverse Zimmerman’s conviction in large part on the officer’s bolstering of the alleged victim’s testimony. Zimmerman, 2019-Ohio-721 (Feb. 28, 2019). It is not harmless, said the Tenth, to let an officer testify about the substance of an alleged victim’s statements; particularly where they connected Zimmerman to the crime. And, an officer cannot usurp a juror’s role by claiming to the jury that he believed her.
In the end, the point from Zimmerman is this: Trial is exhilarating. You are making calculated decisions by the millisecond. But while choosing not to object is a tactical art, you also have to know when to take your finger off that mute button.
To learn more on the strategy that is trial, come learn from Ohio’s best this March, at OACDL’s Advanced OVI Seminar. Or, read the phenomenal book that made me use his name as a verb: MacCarthy on Cross Examination. Either way, you’ll walk away a better trial lawyer for it.