Time to Object and Waiver

In general

• To preserve an error for review on appeal, a proper objection must be made when the evidence is offered for admission.

Bryant v. State ex rel. Van Natta, 405 N.E.2d 583, 584 (Ind. Ct. App. 1980)

• An objection is considered “timely” when it is made before the question is answered.

See Gradison v. State, 300 N.E.2d 67, 80 (Ind. 1973)

• Counsel only need be nimble to the extent that his objection be in time to allow the alleged error to be corrected.

Sheridan v. Siuda, 276 N.E.2d 883, 888 (Ind. Ct. App. 1971)

• The overriding purpose of the requirement for a specific and timely objection is to alert the trial court so that it may avoid error or promptly minimize harm from an error that might otherwise require reversal, result in a miscarriage of justice, or waste time and resources.

Allison v. Pepkowski, 6 N.E.3d 467, 470 (Ind. Ct. App. 2014)

Timeliness of objection (before hearing/trial)

• Objections to the form of questions or answers in depositions are waived unless raised at the time of the taking of the deposition.

See, e.g., Turner v. State, 878 N.E.2d 286, 294 (Ind. Ct. App. 2007) (“Turner did not object during the deposition when Ivanyo was testifying as to the weight of the substances that she tested. As a result, the trial court properly admitted the evidence even though the State had not elicited testimony about the calibration of the scale.”)

• An objection to the form of a hypothetical question put to an expert witness during a deposition is untimely when first stated when the deposition is offered at trial.

See Richmond Gas Corp. v. Reeves, 302 N.E.2d 795, 806–07 (Ind. Ct. App. 1973)

Timeliness of objection (in hearing/trial)

• An objection is considered “timely” when it is made before the question is answered.

See Gradison v. State, 300 N.E.2d 67, 80 (Ind. 1973)

• It is the general rule in this state that a party must object to evidence at the time it is offered into the record in order to keep it out of the record of proceedings. A party who fails to make a timely objection, or, for that matter, to file a timely motion to strike, normally waives right to have the evidence excluded at trial and the right on appeal to assert the admission of evidence as erroneous... In failing to make a timely objection or motion, the party is, in effect, acquiescing in the admission of the evidence.

Reed v. Dillon, 566 N.E.2d 585, 588-89 (Ind. Ct. App. 1991)

• Only trial objections, not motions in limine, are effective to preserve claims of error for appellate review. Failure to object at trial to the admission of the evidence results in waiver of the error, notwithstanding a prior motion in limine.

Raess v. Doescher, 883 N.E.2d 790, 796-97 (Ind. 2008)

• This same general rule applies not only to questions asked but also to offered documentary or physical evidence, i.e., the objection must be offered before what is offered is admitted into evidence.

See Bartoszek v. Marshall, 264 N.E.2d 635, 639 (Ind. Ct. App. 1970)

• [D]efendant had ample opportunity here to object to the question that led to the complained of answer and that therefore the objection to the answer was not timely made. We have consistently held that a party may not, by failing to object, await a responsive answer to an improper question and then have it stricken and the jury admonished because it is not to his liking.

Harmer v. State, 455 N.E.2d 1139, 1142 (Ind. 1983)

Waiver

• To preserve an error for review on appeal, a proper objection must be made when the evidence is offered for admission.

Bryant v. State ex rel. Van Natta, 405 N.E.2d 583, 584 (Ind. Ct. App. 1980)

• A party must make a contemporaneous objection at the time the evidence is offered. Brown v. State, 929 N.E.2d 204, 207 (Ind.2010). By making a contemporaneous objection, the party affords the trial court the opportunity to make a final ruling on the matter in the context in which the evidence is introduced. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind.2000). “The failure to make a contemporaneous objection to the admission of evidence at trial results in waiver of the error on appeal.”

Walnut Creek Nursery, Inc. v. Banske, 26 N.E.3d 648, 654 (Ind. Ct. App. 2015)

See Exec. Builders, Inc. v. Trisler, 741 N.E.2d 351 (Ind. Ct. App. 2000)

Exceptions

• The objection need not precede the answer to be timely if there was no opportunity to object before the answer.

See Hossman v. State, 473 N.E.2d 1059, 1063 (Ind. Ct. App. 1985)(“[F]ailure to object does not waive an issue on appeal if the trial court does not afford the aggrieved party an opportunity to object”)

• The objection need not precede the answer to be timely IF an unobjectionable question evoked an objectionable answer.

See Wagner v. State, 474 N.E.2d 476, 491–92 (Ind. 1985) (“It is generally held that the failure to raise a timely objection constitutes a waiver of the issue on appeal . . . . An exception to this waiver rule is made when the objectionable answer could not have been anticipated. In the circumstances before us, we believe that an unfavorable response could have been foreseen”)

• The requirement of timeliness differs when the trial judge is examining the witness: “A party may object to the court’s calling or questioning a witness either at that time or at the next opportunity when the jury is not present.”

See Evid. R. 614(c)