Probing The Issue of What's Probative

December 27, 2001 Published Work
Reprinted with permission from The Connecticut Law Tribune, December 24, 2001

O.K. You screwed up at trial by failing to object to testimony that was speculative, or hearsay, or unfounded opinion. Or you failed to object to an expert witness's qualifications. To add insult to injury, the trial court (or the jury) made findings adverse to your client based on the very evidence to which you failed to object. On appeal, you want to challenge those findings and the evidence supporting them. Having failed to object and thereby preserve the issue for appeal, you're out of luck, right? Whoa, buddy, not so fast.

Practice Book § 60-5 says in no uncertain terms that the "court shall not be bound to consider a claim unless it is distinctly raised at the trial…" It also says that the "court may in the interests of justice notice plain error not brought to the attention of the trial court." I am not going to bore you in this column with a dissertation on the "plain error" rule. Other appellate scholars have already published tomes on that subject. Moreover, that rule probably would not apply to the situation I describe above anyway.

What I do want to share with you is an obscure line of cases I came across a few years back articulating a legal principle that could save your keister some day. The point of these cases is summed up well in one of them: The failure of a party, "by proper objection made, to prevent the introduction of a statement in evidence is not effective to transmute it from inadmissible into competent testimony." Danahy v. Cuneo, 130 Conn. 213, 217 (1943). Or, as another case says, if the "evidence has no probative force, or insufficient probative value to sustain the proposition for which it is offered, the want of objection adds nothing to its worth and will not support a finding." Marshall v. Kleinman, 186 Conn. 67,72 (1982).

That principal has considerable breadth. It "applies to any ground of incompetency under the exclusionary rules. It is most often invoked in respect to hearsay, but it has been applied to evidence vulnerable as secondary evidence of writings, opinions, evidence elicited from incompetent witnesses or subject to a privilege, or subject to objection because of the want of authentication of a writing, or the lack-of-knowledge qualification of a witness, or of the expertness qualification." State v. Carey, 228 Conn. 487, 496 (1994).

Consider the case of Marshal v. Kleinman, mentioned above. The Supreme court reversed a judgment that had been based upon the testimony of an appraiser whose expert qualifications were not challenged at trial. A key issue at trial was whether the particular property in question was subject to wetlands restrictions that would have adversely affected its value. The appraiser had failed to check the town map, the national map upon which the town was based, and he had not testified to the particular property's soil type. On appeal, the court held that the appraiser's opinion concerning the value of the property had "little probative worth" because he had simply "relied upon his experience with other land in the same area restricted by the [wetlands act] and on a discussion with the town assessor which gave him the general impression that approximately one-half of the property was" wetlands.

In short, evidence that lacks probative value on its face does not suddenly become probative just because it was admitted absent objection. Remember that little adage. It may save you one day on appeal from your failure to preserve an issue at trial.