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47. Has the issue of admissibility been preserved for appeal?
A defendant was charged with murder. At trial, the prosecutor called a witness who testified that a friend had told him that there was «bad blood» between the defendant and the victim. After the witness was excused, the defense attorney moved to strike the portion of the testimony that included the friend's statement, arguing that the statement was inadmissible.
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A is incorrect. Under FRE 103, an objection accompanied by a motion to strike at the first opportunity—even after the inadmissible information has been presented to the jury—may be timely. To preserve an issue for appeal, the critical question is not whether the evidence was presented to the jury, but instead whether the objection is timely and includes the specific grounds for the objection.
C is incorrect. A hearsay statement to the witness by a friend is not «testimonial» for purposes of the Sixth Amendment Confrontation Clause. However, even if it were, counsel must timely raise a confrontation objection at trial in order to preserve the objection for appeal, which the defense attorney did not do in this case.
D is incorrect. Under FRE 103, an objection must be made at the earliest opportunity, and an objection that is made «during trial,» but only after the witness leaves the stand, is not considered timely for purposes of preserving the issue for appeal.