Also known as: take exception · taking exception · took exception · taken exception · exception · objection
Written by attorneys · grounded in primary & secondary sources — see below
A common-law procedural step by which a party whose evidentiary objection has been overruled formally notes an exception on the record to preserve the ruling for appellate review. Modern rules eliminate any need for this step once a timely and specific objection appears on the record.
Thunderbolt Motors served interrogatories on Twin Rivers Bank seeking details of loan calculations. Twin Rivers responded with a general relevance objection that lacked any specific grounds. At trial Thunderbolt moved to compel full answers. The court sustained the objection. Twin Rivers later attempted to argue the point on appeal without having noted any exception at the time of the ruling.
Tiffany Torres offered a prior statement from a witness who could not be located despite reasonable efforts. The prosecution objected on hearsay grounds. The court excluded the statement after finding the proponent had not shown unavailability under the applicable subdivision. Tiffany noted the ruling but did not take any further exception on the record before resting her case.
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Tanner Thompson orally promised to answer for the debt of his cousin to Trinity Pharmaceuticals. When sued on the promise Tanner raised the statute of frauds. The court rejected the defense after finding the writing requirement satisfied by a later email. Tanner preserved the issue by objecting at the summary-judgment hearing but did not note any exception after the adverse ruling.
Taliah Tang conveyed an access right across her land to Talon Security without a writing that met statute-of-frauds standards. Talon later sought to enforce the servitude. The court held the burden unenforceable because the conveyance failed the writing requirement. Taliah objected to the enforcement motion on that ground and the court ruled against her without any exception being noted.
Trevor Tate sent a signed confirmation of a $600 equipment sale to Thaddeus Tran within ten days of an oral agreement. Thaddeus received the writing but never objected in a record. At trial Thaddeus moved to exclude the confirmation as failing the statute of frauds. The court admitted the document after finding the merchant rule satisfied. Thaddeus preserved the evidentiary point through his motion but did not take any exception after the ruling.
Tyrone Tran moved to dismiss an indictment on the ground that one grand juror lacked legal qualification. The district court denied the motion after confirming that twelve qualified jurors had concurred. Tyrone objected to the denial and the court reaffirmed its ruling. No exception was noted on the record before the case proceeded to trial.
No. Under modern evidence rules a timely and specific objection on the record is sufficient to preserve the claim of error. The common-law requirement of formally taking an exception has been eliminated.
The objection is waived and the ruling cannot be challenged on appeal unless the court finds good cause to excuse the failure.
When an objection is sustained the proponent must usually make an offer of proof to preserve the right to argue on appeal that the evidence should have been admitted. The taking of exceptions is not required once the objection itself is on the record.
The concept originated in evidence practice but the same principle now appears in civil, criminal, and procedural rules that treat a timely objection as sufficient to preserve error without any further exception.
…law. . . . Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. . . . It is likewise generally recognized law that a jury may find that negligence…