There are a few things I learned once I switched from trials to appeals that were totally news to me. Maybe everyone knows these things. I certainly did not. So I’m going to throw them out here. And in a series of posts similar to issue not waived.
Object and then object again?!
This is so lame. If you have an in limine where, for example, you want to exclude testimony and the judge says they’re going to admit it…technically…you’re supposed to object again when the evidence is actually admitted in order to preserve the issue. (People v. Jennings (1998) 46 Cal.3d 963, 975, fn.3 [“the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal.”].) Yes. I know. WTF. The theory is that things change so maybe the judge would revisit their ruling once trial starts and the testimony differs.
There is an exception to this. The failure to renew an objection does not waive the issue for review where the party makes “a specific objection, directed to a particular, identifiable body of evidence, at the beginning of or during trial at a time when the judge can determine the evidentiary question in its appropriate context[.]” (People v. Crittenden (1994) 9 Cal.4th 83, 127.) Generally, then, a 402/in lim should be enough as long as everyone is on the same page.
That being said, ask me how I know this is a thing. Because the AG argues it that’s how! So really the best way to make this not a thing is to say at the beginning of trial/the 402s/any in lims that you’re asking the court whether you will need to renew the objection when the evidence is entered or whether the judge’s ruling is final. I’ve seen this done and the judge will say “you do not need to renew it.” Of course, you can renew it if you think the facts somehow change the argument or should change the court’s decision. But just get this out there ASAP. And. I don’t think it’s a bad idea to ask for a side bar when it does come in to say you’re renewing the objection and then after the testimony memorializing on the record that you renewed the objection.