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MyraB
MyraB, Lawyer
Category: Criminal Law
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Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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In a misdemeanor case there was a motion in limine hearing

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In a misdemeanor case there was a motion in limine hearing prior to the trial. The defense counsel made the motion to object to allowing marijuana evidence in the trial. The court overruled the motion in limine.

In the trial after the prosecution questioned the expert about his qualifications and just before the prosecutor starting asking questions about the specifics of this particular case, the defense counsel asked the court if counsel for prosecution and defense could approach the bench. The court said yes and there is a note by the court reporter that "the following bench conference was outside the hearing of the jury."

The defense counsel asked: " Can I renew my earlier objection and motion in limine that we previously had this morning? Could I also object that, based upon Ms testimony, my client was clearly in the custody of the police department; he was alread in custody, and he never had a choice. And based upon all those reasons, I'd ask that the evidence not be permitted to go the the jury."

Prosecution responded: " Your Honor, Oklahoma statute provides that if there is an automobile accident with either great bodily injury or death, that it is a requirement that a blood sample is taken. That happened in this case. It doesn't matter if he was in custody or not."

The Court replied: " I believe that's the case. The objection is overruled.

The defense counsel replied with: "I'd still, just for the record, initiate--or reiterate my earlier motion in limine from this morning and objections."

The Court said: "It will be noted, and I've considered it further and it is overruled."

Defense cousel responded: "Thank you."

My question is since the objection on allowing the marjuana testimony into trial was just a reiteration of the motion in limine objection and it was out of the hearing of the jury was this still considered an official objection that could have been used by appeal counsel?

Then a little later the prosecution went to introduce exhibits 19 and 20 which were the drug test results.

The defense objected saying: "Objection. It's hearsay. He can testify about what his findings were, but it's clearly hearsay for the admission of the record."

Court responded: " That will be overruled. States exhibit 19 will be admitted"

Same objection for exhibit 20 and it was also overruled.

The appeal counsel only used the objections to the two exhibits but also said what the trial court counsel said that "..He can testify about what his findings were, but it's clearly hearsay for the admission of the record."

So even after defense counsel objected to the testimony out of hearing the jury. He later says and appeal counsel also says: "He can testify about what his findings were, but it's clearly hearsay for the admission of the record." Was that the correct thing for them to say if that was a bonafide objection about the testimony outside the hearing of the jury?
Submitted: 11 months ago.
Category: Criminal Law
Expert:  MyraB replied 11 months ago.
Hello again and thank you for your question.

My question is since the objection on allowing the marijuana testimony into trial was just a reiteration of the motion in limine objection and it was out of the hearing of the jury was this still considered an official objection that could have been used by appeal counsel?

Yes, it is still an official objection. An objection does not need to be made within the hearing of the jury and sidebars such as that which occurred here are common. First, defense counsel was required to renew the objection on the issue that was raised in the Motion in Limine in order to preserve the issue for appeal. Second, an objection is required because it gives the judge notice and the opportunity to rule on a point of procedure or law and it is this decision that is subject to review on appeal. So, this objection and ruling could have been used by appellate counsel.

I believe I mentioned before that the Supreme Court recently ruled that forced blood tests violated the Fourth Amendment. I believe you mentioned that the defendant may have consented to the blood draw, but the objection and exchange here leads me to believe it may have been an issue, and the judge's ruling would now be suspect. The case is Missouri v. McNeely, if you want to review it http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf
If the defendant's case was still on direct appeal and the appeal had not yet been decided, then the Supreme Court case could be applied to his case where the objection was preserved.

Was that the correct thing for them to say if that was a bonafide objection about the testimony outside the hearing of the jury?


Again the objection would be properly preserved if it is on the record and the judge had the opportunity to rule on it. This particular objection may also have had some merit. The Supreme Court determined that drug certificates are testimonial and admission of the certificate violates the Confrontation Clause unless there is someone who can testify with regard to the record and be cross-examined. That case is Melendez-Diaz v. Massachusetts and can be found here http://www.supremecourt.gov/opinions/08pdf/07-591.pdf In addition, the certificate itself, is a hearsay statement, much as an inadmissible police report would be. An officer could testify, use the report to refresh his memory if necessary and the report could be used to impeach him, but it would not be admitted for its substance because it is hearsay.

Please feel free to ask any follow-up questions.
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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