It’s a rare millennial who is not familiar with “Legally Blonde,” a movie about an unlikely law school candidate attending Harvard Law School. In her application video, Elle Woods, click-clacking along in her high heels and pink sundress, tells the camera that she “feel[s] comfortable using legal jargon in everyday life.” The audience hears a wolf whistle, and a shirtless man runs up, pats her on the backside, then runs on. She says, “I object!”, gives the camera a big smile, and continues on her way. Although this scene is clearly a comedic Hollywood creation, the legal jargon Ms. Woods introduces is familiar to most people in the audience, and specifically to the legal community: the preservation of errors for appeal through timely and specific objections. It is less clear when an objection was not timely, not specific, or did not occur at all. The waters grow murky when a clear “I object” statement is not utilized, and issues on appeal fall to the discretion of the court. This piece explores the conditions under which an objection is sufficiently apparent from the context to satisfy the rules of evidence. The Montana Supreme Court has traditionally observed the precedent of prohibiting unpreserved and unargued issues on appeal unless they affect a substantial right of a party. But through recent, more flexible application of the Montana Rules of Evidence, the Court has opened the door to departing from the purpose behind the rules of evidence by expanding the interpretation of context-based objections. Recent cases suggest the Court is divided: three justices demonstrate a flexible application and broad interpretation of the rules in a divergence from precedent; the other three justices favor a strict application of the rule’s plain language in accordance with existing case law. This paper contends that across federal and state jurisdictions, the rules of evidence were designed to prevent unpreserved issues to be raised on appeal for purposes of efficiency, equity, utility, and stability. Although it is difficult to create a general rule due to the fact-specific nature of context- based inquiries, this paper also asserts that the precedent behind the rules of evidence indicate that if an objection is to qualify as sufficiently context- based, the specific grounds for the objection must be abundantly clear; the record must reflect the use of the specific wording from the requisite rule of evidence; and the record must reflect that the trial court judge understood the specific grounds. The plain error doctrine serves as a safety net to protect a party’s rights if their counsel fails to make a timely and specific objection and makes modifications of the Contemporaneous Objection Rule unnecessary
Lauren R. Fox, Comment, Apparent from the Context: The Contemporaneous Objection Rule and Montana Rule of Evidence 103(a)(1), 84 Mont. L. Rev. 2 (2023).