The Oklahoma Bar Journal January 2024

by asking, “Mr. Smith, how do you feel about this?” After giv ing jurors those two options and letting them voice their concerns, the judge can issue an instruction, or if the attorney needs to use one of their strikes, that could be up for consideration. The other way to handle objec tions would be to make any objec tions throughout the trial, have everything dealt with, and if the attorney feels like it needs to be addressed, they address it in their closing argument. The attorney can explain in closing that there were times throughout the trial that on behalf of their client, they had to make some objections. The objec tions were based on the Rules of Evidence. The intent was not to hide information from the jury but to keep improper evidence, evidence that could not be relied upon, out. Therefore, they were compelled to make those objections.

the judge, who will rule on those objections. In addition, the attor ney can let the jury know that as part of the rules and advocating on behalf of their client, there may be times they have to object to evidence. Their intent is not to keep evidence from the jury, hide facts or anything else – it is just to comply with the Rules of Evidence. The attorney would give this explanation and then ask if anyone has a problem with that. Another option is that after the explanation, the attorney would state that some jurors feel like when a lawyer makes objections, they are trying to hide evidence, and therefore, that action should be held against the client. Other jurors feel like that is part of the rules – that is how the system is set up, and that is how things work – and they are fine with that and don’t hold anything against the client. The attorney would then address a particular juror

proffer, and the judge is present and listening to what is happen ing. Often, after hearing a proffer, judges in bench trials will reverse the ruling they had made earlier. On other occasions, a judge may hear everything about the proffer, and at a later point in the trial, the evidence may get offered again, and the judge will change the previous ruling. An example of when this often happens in bench trials is when an objection is sus tained for lack of foundation. In the proffer, the attorney is able to explain what is going on. Another example is when an objection is sustained for relevance. Often, through the proffer, the attorney can explain how the evidence is relevant to the case and the issues at hand. One other example is when an objection is sustained based on hearsay. A proffer sometimes allows the attorney to explain the basis, and thereby, it is allowed to become part of the record, come into evidence and be considered at trial. As part of the trial strategy, if the trial lawyer becomes aware at pretrial and at pretrial motions that they are going to have to lodge objections during the trial, it is sometimes a good strategy to go ahead and bring this fact up during voir dire . During voir dire , the attorney can explain to the jurors that there are rules of evidence during trial and the way the legal process is set up based upon those rules of evidence – if one attorney believes a piece of evidence has come up that does not comply with the rules, then that attorney may object. Those objections are then taken before EXPLAINING OBJECTIONS TO THE JURY

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

JANUARY 2024 | 25

THE OKLAHOMA BAR JOURNAL