CHAPTER 10 "OBJECTIONS"
I. THE PURPOSE OF OBJECTIONS
Objections are the means by which evidentiary disputes are raised and resolved. Objections may be made to the questions posed by attorneys, the testimony given by witnesses, the introduction or use of exhibits, or to the demeanor or behavior of the participants of a trial, including the presiding judge.
Although the process of objecting has become associated in the popular mind with contentiousness and even hostility, that need not be the case. Our adversary system relies upon opposing attorneys to present evidence and the judge to decide upon the admissibility. An objection, then, is nothing more than a signal to the judge that there is a disagreement between counsel concerning the rules of evidence or procedure.
When there are no objections, which is the overwhelming majority of the time, the judge can allow evidence to come into the record without the need for a specific ruling. If we had no process of objecting, the trial judge would have to rule upon every separate answer and item of evidence. Thus, unless the process is abused or misused, trials are actually expedited by the judge’s ability to rely upon counsel to object to questionable evidence.
Recall from Chapter 2 (“Case Preparation”) that you determine the admissibility of information or conduct using the rules of evidence provided in your case file. If a piece of evidence is allowed under the rules, it is admissible; evidence that is not allowed is inadmissible. The presiding judge determines the admissibility of the evidence at trial; she hears objections from counsel and rules upon them.
Objections that are “sustained” by the judge were appropriately raised and deemed applicable to the given situation; “overruled” objections were either inappropriately raised or deemed not applicable under the rules.
The lawyer making an objection is called the opponent of the evidence whereas the lawyer attempting to elicit the evidence is the proponent.
There are two main types of objections: substantive and nonsubstantive. Substantive objections being into question the admissibility of the content of the testimony or exhibit at issue. Nonsubstantive objections raise the appropriateness of the manner in which the information is being sought or delivered to the court.
A. Nonsubstantive objections
The most common nonsubstantive objections are those that challenge the form of a question asked. For example, a leading question on direct examination is improper because it tells the witness what answer is expected. Even if the answer itself would be admissible, the question is not allowed because of its suggestiveness. Likewise, compound questions, vague questions, and argumentative questions, to name a few, are also objectionable because of their form.
Nonsubstantive objections may also be made to anything else that might have an impermissible impact on the trier of fact. For instance, a lawyer can object if opposing counsel raises her voice to a witness or approaches the witness in an intimidating manner./ Likewise, counsel may object to the manner in which exhibits are displayed or to the position of chairs and tables in the courtroom.
B. Substantive Objections
Even if a question is phrased in the proper form, it may nonetheless call for inadmissible evidence. The information sought may be irrelevant, unduly prejudicial, or hearsay. For instance, the question, “What is your religious affiliation?” is in proper form but any answer would be inadmissible under most rules of evidence since it is almost certainly irrelevant.
In addition, even if a question is not objectionable, a witness may respond with an inadmissible answer. The answer might volunteer irrelevant information, it might contain unanticipated hearsay, or it might consist entirely of speculation. For example, a direct examiner could ask the perfectly allowable question, “How do you know that the traffic light was red?” only to receive the hearsay reply, “Because Jared Harris told me just last week.” Hearing this response, opposing counsel would no doubt object to the answer and move that it be stricken from the record.
II. THE RULES OF OBJECTING
This portion of the chapter gives students guidelines to follow in determining whether, when and how to object, as well as how to respond to, and recover from, objections.
A. Consider Objections Carefully
In Chapter 2 (“Case Preparation”) we explained in detail how to outline your case for trial. By following this method, you have already compiled a list of all the facts to which each witness may testify and every possible substantive objection (and response) that may be raised. You have also taken this process one step further by determining which substantive objections are worth making. Knowing this information will make jour job at trial much easier since it will enable you to anticipate many substantive objections with the comfort of a planned response.
Despite this, there will always be instances in a mock trial when you will want to object to the manner in which information is sought or delivered to the court. These nonsubstantive objections are impossible to anticipate. Instead, in the heat of trial, you must consider whether to object on a split-second basis.
When deciding whether to object, ask yourself if the objection is truly necessary. Not every valid objection needs to be made. Objections can be tiresome; they interrupt the flow of the evidence, they distract attention from the real issues at hand, and they have an awful tendency to degenerate into whining. You may even lose points with the judge by incessantly interrupting your opposition only to point out your incredible grasp of the rules of evidence.
For instance, there is little point to objecting if opposing counsel will be able to rectify the problem simply by rephrasing the question, as is the case with most nonsubstantive objections that address the improper form of a question. This is particularly true of leading questions on direct examination:
PROPONENT: Isn’t it true that you had the green light as you approached the intersection?
OPPONENT: Counsel is leading his own witness.
THE COURT: The objection is sustained.
PROPONENT: What color was the traffic light as you approached the intersection?
ANSWER: It was green.
In this example, the objection to the leading question accomplished nothing in the way of excluding evidence and may actually have emphasized the witness’s testimony that the light was green. Counsel would have been just as well off not making it.
Of course, the persistent use of leading questions to feed answers to a witness is quite another matter. In those circumstances, an objection should almost always be made.
B. Direct All Arguments to the Judge
Objections at trial are conducted as a conversation between counsel and the court. The general scenario is for the opponent of the evidence to argue first, followed by the proponent of the evidence and concluding with a reply from the opponent. In practice, however, the format is often much less formal, with the judge asking questions and counsel responding.
No matter what, counsel should not argue with, or even address, each other. It is the judge who will make the ruling and the judge who must be convinced. It is ineffective, distracting, and even insulting to the court when counsel turn to each other to argue their objections:
OPPONENT: Objection, Your Honor, lack of foundation.
PROPONENT: What more foundation could you want, counselor?
OPPONENT: Well, you could start with a basis for personal knowledge.
PROPONENT: He already testified that he is the comptroller. Isn’t that enough for you?
No matter how foolish, trite, or easily disposed of the other side’s position seems, avoid speaking directly to opposing counsel. All of your arguments should be made to the court.
C. In Jury Trials, Request Sidebars
Occasionally during a jury trial it is important that the jury not hear the content of counsels’ arguments following objections. This is true when it is necessary to recite the expected testimony so the judge can rule on the objection, or to refer to other evidence that has not yet been admitted. The most common way of insulating the jury from the attorneys’ argument is for counsel to approach the bench and hold, in whispered tones, a sidebar conference with the presiding judge. A sidebar can be called by the court or requested by either party simply by asking, “Sidebar, Your Honor?”
Presumably to save time, some mock trial rules of procedure do not allow for sidebar conferences. If sidebar conferences are not allowed in your competition, you can still demonstrate your recognition that one is called for by raising your objection and, before proceeding to argument, asking, “May we assume we are out of the presence of the jury, Your Honor?”
D. Raise Objections Appropriately
The accepted format for making and meeting objections may differ from court to court. The majority approach is as follows:
1. Stand up
You should stand whenever you speak to the presiding judge, including when you raise objections. Sitting while objecting is disrespectful to the judge. Some judges refuse to entertain objections from seated counsel. Even if your judge does allow you to object while sitting, most will not be pleased by the practice.
Aside from showing respect to the court, there is another benefit to standing while objecting. Since the purpose of objecting is to keep inadmissible information from being introduced at trial, standing to make your objection draws the physical attention of everyone in the courtroom away from the current action and onto you.
2. Object and state your grounds
The best way to state your objection is clearly and concisely. For instance:
“Objection, Your Honor, relevance.”
“Objection, counsel is leading the witness.”
“Your Honor, we object on the ground of hearsay.”
“Objection, lack of foundation.”
You may also refer directly to the precise rule of evidence on which your objection relies. For example:
“Objection, your Honor, this information is irrelevant under Rule 401.”
“Objection, your Honor, this is improper character evidence under Rule 404(b).”
“Your Honor, we object to hearsay under Rule 801.”
This method demonstrates your knowledge of the rules and impeccable trial preparation, in addition to signaling to the judge the specific nature of your objection.
If your mock trial is formatted as jury trial, you can take these methods one step further by adding a descriptive tag line so that the jury will understand the basis of your objection:
“Objection, hearsay, Your Honor. Under Rule 801 the witness cannot testify to what somebody else
said.”
“Objection, Your Honor, leading: counsel is testifying instead of the witness.”
While it is reasonable to explain the nature of your objection to be sure the judge and jury understand, there is no need to comment on the inadequacy of the evidence. Lawyers who make objections such as, “Your Honor, I fail to see the relevance of counsel’s last question” are often met with rebukes from the judge like this one: “It doesn’t matter whether or not you see it. Just make an objection if you have one, counsel.”
3. Pause for the judge to consider the objection
Some attorneys feel the need to launch into an extended discourse on the bases for their objections before allowing the judge to rule or opposing counsel to speak. Such a “speaking objection” might sound like this:
“Objection, Your Honor, that question calls for hearsay. The witness’s personal notes constitute an
out-of-court statement, even though the witness is present on the stand. They do not qualify either
as business records or as past recollection recorded, and in any event there has been no
foundation.”
While there is no absolute rule against speaking objections, most judges do not like them because they take up time when the judge might be willing to rule immediately.
Rather than launching into a narrative, simply state the basis for your objection and remain standing until the judge responds. The judge may respond in one of five ways: she may overrule your objection; she may sustain your objection; she may ask opposing counsel to respond; she may ask you to further explain your grounds; or she may simply pause for a moment to collect her thoughts on the matter.
4. If appropriate, respond to the court
If the judge sustains your objection immediately, your job is done. If she overrules it, you may wish to politely ask the judge if you may be heard on the matter further by stating, “Your Honor, may I be heard?” Use this technique prudently, however. If the judge allows you to be heard after ruling against you once and your additional statements do not change her mind, she is unlikely to allow you the luxury again.
If the judge seeks a response from opposing counsel, she will usually return to you so you may have the last say. If she does not, use your instincts to tell you whether it is appropriate for you to ask to be heard on the matter again. You might say, “May I respond, Your Honor?” This technique is also useful for those times when the judge appears to be wavering in her ruling or pausing in thought. It is usually safe to take these cues as invitations to further explain your argument. Always ask permission to speak before you do so, however.
Be sure that any additional assertions you make beyond your initial objection and statement of grounds are different than those you already expressed. Repeating your grounds or effectively doping so with different language will only wear on the judge’s patience and lessen your credibility. If you have nothing more to say, be honest about it with the judge and say, “I have nothing further, Your Honor” or “I stand on my objection, Your Honor.”
5. Special considerations
There are a few types of objections that merit special handling.
a. Repeated objections
It is sometimes necessary to raise the same objection to a number of questions in a row. Perhaps your initial objection was sustained, but your opponent is persistent in attempting to introduce the inadmissible evidence through other means. Perhaps your initial objection was overruled, and you feel bound to continue objecting as opposing counsel asks a series of questions in elaboration. In any event, an awkward feeling inevitably arises when it is necessary to object repeatedly, on the same ground, to question after question.
The least obtrusive way to raise a repeated objection is to say “same objection” at the end of each of opposing counsel’s questions. The judge can then repeat her ruling and will eventually instruct opposing counsel to move on to another line of questioning.
If your “same objections” are being consistently overruled, the judge is likely to tire of them even sooner. The best way to handle this situation is to assert a “standing objection.” The theory of the standing objection is that a single objection will be considered to “stand” or apply to an entire line of questioning, without the need for repeated interruptions. In most instances, the judge will grant your request for a standing objection. She might say, for example:
THE COURT: Counsel, you may have a standing objection to that line of questioning.
OPPONENT: Thank you, Your Honor. For the record, we object to all further testimony
concerning any conversations between the defendant and Ms. Wallace,
including Ms. Wallace’s alleged references to the investigative report.
Ms. Wallaces's statements are hearsay and the comments on the content
of the report are double hearsay.
THE COURT: Very well. (To proponent) Ask your next question.
. . . .
E. Time Objections Appropriately
Having determined what to say in raising an objection, one must consider when to say it. The general rule is that an objection must be made as soon as it is apparent that it is called for. On the other hand, an objection may be premature if it interrupts an incomplete question or if it anticipates testimony that may or may not be given.
Most objections to questions should be held until the examiner has had the opportunity to complete the question. Not only is it rude to interrupt, but the final version may turn out not to be objectionable. Fthis reason, many judges will refuse to rule on an objection until the question has been completed.
There are times, however, when it is necessary to interrupt the questioner. Some questions are objectionable not because of what they will elicit, but because of what they assert. A question may contain a damaging suggestion or proposition which, once heard by the fact-finder, cannot be wholly remedied by objection. Such questions must be interrupted in order to cut off the interrogator’s inadmissible statement. For example, a cross examiner may be about to question a witness about an inadmissible criminal conviction. Imagine this scenario:
PROPONENT: Isn’t it true that you were convicted---
OPPONENT: Objection, Your Honor. Counsel is seeking information that is prohibited
under Rule 609(d).
THE COURT: Sustained.
Timing objections to questions is relatively easy. Often, however, a witness will respond to a seemingly proper question with a wholly inadmissible answer. The timing in these situations is trickier since, by definition, the answer was not foreshadowed by the question. The general rule is that an objection must be made as soon as the inadmissible nature of the answer becomes apparent. This necessarily means interrupting the witness. For example:
PROPONENT: When did you begin your investigation of the defendant’s financial situation?
ANSWER: I began the investigation as soon as I received an anonymous letter charging that--
OPPONENT: We object on the grounds of hearsay and foundation.
THE COURT: Sustained.
It will not do to allow the witness to finish the answer because by then the fact-finder would have heard the testimony and the harm would be done.
Unfortunately, it is not always possible to recognize and respond to inadmissible testimony before it happens. Counsel may be momentarily distracted or may suffer from rusty reflexes. And some witnesses, either innocently or by design, have a way of slipping improper testimony into the record. When this happens, your only recourse is to make a “motion to strike.” A motion to strike, when granted, has the effect of noting for the record that the improper testimony is not to be considered as part of the evidence for appeal purposes. Although there is no appeals process following a mock trial, you should still demonstrate your knowledge of trial skills by making motions to strike. Here is an example of the effective use of a motion to strike:
PROPONENT: Are you the comptroller of the defendant’s corporation?
ANSWER: The only thing I knew about skimming funds came through the rumor mill.
OPPONENT: Objection, hearsay. We move to strike that answer.
THE COURT: Sustained. The answer will be stricken from the record.
If your mock trial is being conducted as jury trial, you should also ask the judge to instruct the jury to disregard the inadmissible answer:
OPPONENT: Will Your Honor please instruct the jury to disregard that last answer?
THE COURT: Yes, certainly. Ladies and gentlemen, you are to disregard the answer that
the witness just gave. Proceed.
While this sort of curative instruction is hardly a satisfying remedy, it is the best that can be done under the circumstances.
F. Respond to Objections Appropriately
The etiquette for the attorney responding to an objection is much the same as for the objecting attorney. Recall that the judge may react to an objection in one of five ways: she may sustain it; she may overrule it; she may ask you to respond to it; she may ask the attorney objecting to explain his grounds further; or she may pause to collect her thoughts.
1. Wait for the judge’s cue to respond
Many judges like to rule on objections immediately after they are made. Thus, as a general rule, it is best for you to keep quiet until you are invited to respond, either verbally or nonverbally, by the judge. If the judge overrules the objection immediately, your job is done.
Other judges prefer to hear argument from counsel before ruling on objections. In this case, the judge might turn to you and say, “Response, counsel?” or she might nod in your direction, signaling that it is safe to respond.
2. If appropriate, request to be heard
Many objections cannot be so quickly decided because they raise subtle or complex legal issues. Aspects of an objection may escape the judge or may require consideration of additional information that is not already apparent to the judge. In these circumstances, counsel cannot rely on an invitation to argue from the judge and will need to inform the court, as politely as possible, that argument is necessary. It is preferable to do this before the judge has ruled, if that can be accomplished without interrupting. An effective signal is to stand while the objection is being made or, if you are already standing, to take a step toward the bench, in order to alert the judge that argument is desired.
If the judge sustains opposing counsel’s objection without asking for your input, do not be shy about letting the judge know that there is another side to the objection:
PROPONENT: What did the police officer say to you?
OPPONENT: Objection, hearsay.
THE COURT: Sustained.
PROPONENT: Your Honor, may I be heard on that?
THE COURT: Very well, what do you have to say?
PROPONENT: The statement falls under the “present sense impression” exception.
THE COURT: I see. Overruled. The witness may answer.
3. Respond specifically
The key to responding to any objection is specificity. A judge who has agreed to listen to argument on an objection has indicated that she is persuadable. A good argument will result in the admission of the evidence only if it provides the judge with a good reason to overrule the objection. Tell the judge exactly why the proffered evidence is admissible. Some lawyers, for reasons known only to themselves, respond to objections by repeating the evidence and exhorting the judge to admit it. The following scenario is not at all unusual:
PROPONENT: What did the defendant do immediately after the accident?
ANSWER: He began yelling at his eight-year-old son.
OPPONENT: Objection. The defendant’s relationship with his son is irrelevant.
THE COURT: It does seem irrelevant. What do you have to say, counsel?
PROPONENT: It is very relevant, Your Honor. It shows that he was yelling at his child.
This response communicates very little to the judge. What is the probative value of the defendant’s conduct? Note how much more effective it is when counsel explains why the evidence is being offered to the court:
PROPONENT: What did the defendant do immediately after the accident?
ANSWER: He began yelling at his eight-year-old son.
OPPONENT: Objection. The defendant’s relationship with his son is irrelevant.
THE COURT: It does seem irrelevant. What do you have to say, counsel?
PROPONENT: The defendant’s anger at his son tends to show that he was distracted by the
child just before the accident. It goes directly to negligence, Your Honor.
The judge may or may not agree with the proponent’s assessment of the evidence, but at least she will have the benefit of his analysis.
a. Inform the court of limited admissibility
Evidence may be inadmissible for some purpose yet admissible for others. When responding to objections it is extremely important to advise the judge of the admissible purpose for which the evidence is offered.
For example, evidence that a dangerous condition has been repaired is generally inadmissible to prove negligence. Counsel cannot argue to the trier of fact, “Of course the owner of the car took inadequate care of the automobile; he had his brakes repaired just two days after the accident.” On the other hand, evidence of the repair is admissible to prove ownership of the automobile. Counsel can argue, “The defendant denies that he was responsible for the upkeep of the car, but he was the one who ordered and paid for the repair of the brakes just two days after the accident.”
With this dichotomy in mind, consider the possible objections and responses in the cross examination of the defendant:
PROPONENT: Didn’t you have your brakes repaired just two days after the accident?
OPPONENT: Objection, Your Honor, this testimony violates Rule 407 because it shows
subsequent remedial measures.
THE COURT: What do you have to say, counsel?
PROPONENT: We are offering it only to prove ownership and control, Your Honor.
THE COURT: The evidence will be received, but only for that limited purpose. Ladies and
gentlemen of the jury, you are to consider this evidence only for the purpose
of showing ownership and control of the automobile. You must not consider
it as proof of any negligence on the part of the defendant.
If the court does not immediately give a limiting instruction, one should be requested by the attorney whose objection was overruled.
b. Inform the court of a conditional offer
The admissibility of certain testimony, particularly with regard to relevance, may not always be immediately clear as it may depend upon other testimony to be developed through later witnesses. IN these circumstances, counsel may respond to an objection by making a “conditional offer.” This is done either by promising to “tie it up later” or, preferably, by explaining to the court the nature of the evidence that is expected to follow. For example:
PROPONENT: Isn’t it true that you had an important meeting scheduled for the morning of
the accident?
OPPONENT: Objection. The witness’s business schedule is not relevant.
THE COURT: What is the relevance of that inquiry, counsel?
PROPONENT: We intend to introduce evidence that the defendant had a meeting scheduled
with a prospective client, that he was already late for the meeting at the time
of the accident, and that he stood to lose a great deal of money if he didn’t
arrive on time. The question is therefore directly relevant to show that he was
speeding and inattentive.
THE COURT: Based on that representation I will allow the testimony, subject to a motion to
strike if you don’t tie it up.
A conditional offer is always subject to the actual production of the later evidence. Thus, advanced mock trial participants will keep track of conditional offers made by the other side. If opposing counsel fails to elicit the promised testimony, an objection and motion to strike the earlier evidence should be raised at the end of opposing counsel’s case in chief.
4. Cure the objection whenever possible
It is not necessary to fight to the death over every objection. Counsel can frequently avoid an objection by rephrasing the offending question, either before or after the judge rules.
Since the precise language of a question is seldom of vital importance. It should be possible to circumnavigate virtually any “form” objection. Leading questions, compound questions, and vague questions can all be cured. Even if your original question was perfectly fine, you may be able to move the trial along, and earn the gratitude of judge and jury, by posing the same inquiry in different words.
Other objections that can be undercut through rephrasing include personal knowledge, foundation, and even relevance. Fro example:
PROPONENT: Did the plaintiff follow his doctor’s advice?
OPPONENT: Objection. Lack of personal knowledge.
PROPONENT: Let me put it this way. Did the plaintiff say anything to you about his doctor’s
advice?
ANSWER: Yes.
PROPONENT: What did he say?
ANSWER: He said that he would rather risk the consequences than stay in bed all day.
In this scenario, the examination was made stronger by rephrasing the question in response to the objection.
Making and meeting objections involves a certain amount of gamesmanship. No lawyer likes to be seen as an evidentiary pushover. From time to time it may be tactically important to stand behind a question, if only to establish your mastery of the rules. Another alternative is to rephrase a question without saying so. In the above example the attorney neither withdrew the question nor overtly rephrased it, but rather said, “Let me put it this way.” Problem solved.
G. Follow up the Judge’s Ruling
The judge’s ruling on an objection is not necessarily the end of the matter. Counsel must remain alert to ensure that the ruling is carried out and that the grounds for the ruling are followed. Both the proponent of the evidence (offering lawyer) and the opponent (objecting lawyer) may have yet more to do.
1. Objection overruled
a. Proponent’s job
The proponent’s job when an objection is overruled is to ensure that the evidence actually makes its way into the record. In other words, the proponent must make sure that the witness answers the question that the judge has just ruled to be permissible. The following is an all-too-frequent scenario:
PROPONENT: After the accident, what did the crossing guard say to you?
OPPONENT: Objection, Your Honor, the question calls for hearsay.
PROPONENT: May I respond, Your Honor?
THE COURT: Yes.
PROPONENT: Your Honor, it has already been established that the crossing guard
observed the accident immediately before making the declaration, so it
it qualifies as either an excited utterance or a present sense impression.
THE COURT: Yes, I think there is a hearsay exception there. Overruled.
PROPONENT: What is the next thing that you did?
ANSWER: I went to the telephone and dialed 911.
Despite the court’s ruling, the witness was never given an opportunity to answer the original question. The proponent, apparently flushed with victory, just went on to another subject.
Lawyers make similar mistakes when a witness’s answer has been interrupted or when the arguments on the objection overlap the testimony. Sometimes even when the witness was able to get an answer out, the import of the testimony may have been drowned out by the subsequent wrangling over the objection.
On all of these instances, the proponent’s safest course is to repeat the question and to be sure to get a clear answer from the witness. Experienced attorneys will take this job one step further by emphasizing the allowed testimony. For instance:
PROPONENT: After the accident, what did the crossing guard say to you?
OPPONENT: Objection, Your Honor, the question calls for hearsay.
PROPONENT: Response, Your Honor?
THE COURT: Yes, certainly.
PROPONENT: Since the crossing guard observed the accident just before making the declaration, it is an excited utterance or a present sense impression.
THE COURT: The objection is overruled.
PROPONENT: You were about to tell us what the crossing guard said immediately after
witnessing the accident.
ANSWER: Oh yes, he said that the yellow car ran the red light and smashed right
into the blue car.
This technique allows counsel to repeat the question and also to emphasize the favorable circumstances under which it was made.
b. Opponent’s job
The opponent’s job following an overruled objection is to stay alert to the possibility of excluding all or some of the remaining offending evidence. Perhaps the witness will not testify in the manner that was promised by the proponent of the evidence in her argument to the court. For example:
PROPONENT: After the accident, what did the crossing guard say to you?
OPPONENT: Objection, Your Honor, the question calls for hearsay.
PROPONENT: Your Honor, if I may be heard?
THE COURT: Yes.
PROPONENT: The statement of the crossing guard qualifies as a present senseimpression.
THE COURT: Yes, I think so. Overruled.
ANSWER: He said that he didn’t really see what happened, but that it looked as though…
OPPONENT: Your Honor, I renew my objection. If the witness didn’t really see the
accident then this cannot be a present sense impression.
THE COURT: Yes. The objection will be sustained on those grounds.
Alternatively, other grounds for objection may become clear in the course of the testimony, or perhaps the witness will begin volunteering evidence that is inadmissible for some additional reasons. In the above scenario counsel could also have objected on the ground that the crossing guard’s statement (“it looked as though…”) was speculative.
2. Objections sustained
a. Proponent’s job
A sustained objection means that the proponent of the evidence has been denied the opportunity to introduce the testimony or exhibit at trial. Following this ruling, the proponent’s job is to keep trying to have the evidence admitted, if possible. When a judge sustains an objection, the ruling usually applies only to the specific question (or answer) and grounds that were then before the court. Unless the judge says so explicitly, the ruling does not extend to the ultimate admissibility of the underlying evidence. In other words, a sustained objection says only that “the evidence cannot be admitted based on the testimony and arguments heard so far.” It does not say that “the evidence cannot ever be admitted no matter what you do.” Counsel generally has the option to offer the evidence through other means.
These “other means” may consist of nothing more that rephrasing a question. Any objection as to form – leading, compound, vague, argumentative – can be cured by altering the language of the inquiry. Leading questions on direct examination can easily be restated:
PROPONENT: You had the green light when the defendant’s car hit yours, didn’t you?
OPPONENT: Objection, leading.
THE COURT: Sustained.
PROPONENT: What color was your light when the defendant’s car hit yours?
ANSWER: It was green.
Objections are frequently sustained not because of the form of the question but because of some missing predicate in the testimony. Objections to foundation can be cured by eliciting additional foundation. Objections to a witness’s lack of personal knowledge can be remedied with further questions showing the basis of the witness’s information. Relevance objections can be overcome through continued questioning aimed at demonstrating the probative value of the original question. Note the following cross examination of the defendant in our fire truck case:
PROPONENT: Immediately after the accident you started yelling at your eight-year-old
son, didn’t you?
OPPONENT: Objection, relevance.
THE COURT: Sustained.
PROPONENT: Well, your eight-year-old son was in the car at the time of the accident, wasn’t he?
ANSWER: Yes.
PROPONENT: He was sitting in the front seat with a “boom box,” right?
ANSWER: Yes, he was.
PROPONENT: And there was a “heavy metal” tape in the boom box?
ANSWER: I guess that is what you call it.
PROPONENT: That music can be awfully loud, can’t it?
ANSWER: I suppose so.
PROPONENT: Most adults find it extremely annoying, don’t they?
ANSWER: I couldn’t really say.
PROPONENT: And immediately after the accident you yelled at your son, didn’t you?
OPPONENT: Same objection.
PROPONENT: Your Honor, I believe we have established the likelihood that the defendant was
distracted by his son’s music. Yelling at the child is probative on that issue.
THE COURT: Yes, I see your point. Overruled.
The same approach can work for hearsay objections. Additional facts can often be established that will qualify a statement for an exception to the hearsay rule. Moreover, out-of-court statements may sometimes be recast in the form of conduct or observations. In the following example a police officer has just testified on direct examination that she received a radio dispatch that a crime had been committed.
PROPONENT: What was the content of the radio bulletin from the dispatcher?
OPPONENT: Objection, hearsay.
THE COURT: Sustained.
PROPONENT: What did you do immediately after receiving the alert?
ANSWER: I drove to the corner of Grand Avenue and State Street.
PROPONENT: What did you do there?
ANSWER: I began looking for a suspect wearing glasses and a white lab jacket.
The effect of the sustained hearsay objection was avoided by continuing the examination on the admissible subject of the witness’s actions, as opposed to the inadmissible subject of the dispatcher’s out-of-court statement.
It is not always possible to overcome a sustained objection. Some testimony will be flatly inadmissible no matter how many approaches counsel attempts. On the other hand, there are often numerous routes to admissibility, and a sustained objection usually closes off only one. Keep trying.
b. Opponent’s job
When an objection is sustained the opponent of the evidence has been successful. This should bring satisfaction to the objector, and in some cases even rejoicing, but it is never a reason to rest on your laurels. The very next question may ask for the identical evidence, in which case an additional objection must be made. A sustained objection will be a temporary victory indeed if the proponent of the evidence succeeds in having it admitted later in the witness’s testimony. This is not uncommon. Successful objections can come undone as soon as the objector relaxes vigilance:
PROPONENT: Who told you to begin your financial investigation?
ANSWER: I received an anonymous note charging that –
OPPONENT: Objection, hearsay.
THE COURT: Sustained.
PROPONENT: What caused you to begin investigating?
ANSWER: There was a charge that money had been skimmed from one of the trust
accounts.
PROPONENT: How did you learn of the charge?
ANSWER: I received a note.
The opponent of the evidence in this case let down her guard. When the first hearsay objection was successful, she allowed her attention to lapse. She therefore failed to notice that the identical testimony was being introduced as the “cause” of the investigation. The information, of course, is no less hearsay) and no less anonymous) the second time around. A second objection should have been made. The cardinal rule when your objection is sustained is “Do not fall asleep.”
H. Reevaluate Your Theory
Rulings on objections govern the flow of evidence at trial. The availability of evidence forms the underpinning of every attorney’s theory of the case. Theory planning, in turn, involves calculated predictions as to the admissibility of evidence. It may be, therefore, that the court’s ruling on a particularly important objection will require counsel to reevaluate her theory of the case.
Evidentiary rulings must be understood in the context of the entire case. They are not merely passing successes or failures; they can be crucial turning points in the progress of the trial. If an essential item of evidence is excluded, or if some controversial proof is admitted, counsel may have to switch to a new theory or alter her current one, even if this occurs in midtrial.
In some instances the effect of an evidentiary ruling may be only to strengthen or weaken your case. If the court excludes some testimony of one of your witnesses, you might be able to proceed as planned but with a lesser volume of evidence. Recall the fire truck case that we have been using as an example. The plaintiff’s theory was that the defendant caused the accident because he was hurrying to a business meeting for which he was already late. Assume that the court, for whatever reason, sustained an objection to testimony that the defendant was seen rushing from his house that morning with his tie undone and a coffee cup in his hand. This ruling diminishes the proof available to the plaintiff, but so long as other evidence is available, the “hurrying to work” theory can remain intact.
III. ETHICS AND OBJECTIONS
Ethical issues frequently arise in the context of making and meeting objections. Because the objecting process is one of the most confrontational aspects of the trial, it often tests counsel’s reserves of good will, civility, restraint, and sense of fair play. The three most common problems are discussed below:
A. Asking Objectionable Questions
As we have seen, an attorney is usually wise to refrain from objecting to every objectionable question or answer. This raises the possibility that your opposing counsel may choose not to object to testimony by your witnesses even if its admissibility is open to debate. That decision is the opposition’s to make, and there is no need for you to save them from having to make it.
By the same token, the judge is the arbiter of the law. If her evaluation of admissibility is different from counsels, then the judge is correct. This is not a novel concept. Boswell reported that Dr. Johnson took the same position with regard to arguing a case which he knew to be weak:
Sir, you do not know it to be good or bad till the Judge determines it. * * * An argument which does not convince yourself, may convince the Judge to whom you urge it: And if it does convince him, why, then, Sir, you are wrong and he is right.
This principle does not, however, relieve counsel of all responsibility to cull inadmissible evidence from the case.
A corollary to counsel’s right to offer evidence for which there is a reasonable basis is the obligation to refrain from offering evidence for which there is no reasonable basis. In other words, it is unethical to offer evidence knowing that there is no reasonable basis for its admission. Even though opposing counsel might neglect to object, and even though the court might err in its ruling, the adversary system does not extend so far as to allow the intentional use of improper evidence. Indeed, one of the justifications for the adversary system is precisely that counsel can be relied upon to perform this minimum level of self-policing.
Finally it is unethical to attempt to use the information contained in questions as a substitute for testimony that cannot be obtained. Some lawyers apparently believe that the idea of zealous advocacy allows them to slip information before a finder of fact by asserting it in a question, knowing full well that the witness will not be allowed to answer. The usual scenario is something as follows:
PROPONENT: Isn’t it true that you were once fired from a job for being drunk?
OPPONENT: Objection, relevance.
PROPONENT: I withdraw the question. (Proponent’s thought process: Who cares about the
ruling? I never expected to get it in, but now the jury knows that the witness is
a drunk.)
This conduct, even if the information is true, is absolutely unethical. Testimony is to come from witnesses, with admissibility ruled upon by the court. It subverts the very purpose of an adversary trial when lawyers abuse their right to question witnesses in order to slip inadmissible evidence before the fact finder.
B. Making Questionable Objections
The same general analysis applies to the use of objections as it does to the offering of evidence. Opponents of evidence need not be positive that an objection will be sustained but they must believe that there is a reasonable basis for making it. Again, under the adversary system it is up to the judge to decide whether to admit the evidence.
The license to make objections is available only if counsel is truly interested in excluding the subject evidence. That is, an attorney may make any reasonable or plausible objection, but only so long as the purpose of the objection is to obtain a ruling on the evidence. As we will se in the following section, objections may also be employed for a variety of ulterior purposes, most of which are unethical.
C. Making “Tactical” Objections
Many lawyers, and more than a few trial advocacy texts, tout the use of so-called “tactical” objections. Since an objection is the only means by which one lawyer can interrupt the examination of another, it has been suggested that objections should occasionally be made to “break up” the flow of a successful examination. An objection can throw the opposing lawyer off stride, or give the witness a rest, or distract the finder of fact from the content of the testimony. This advice is usually tempered with the admonition that there must always be some evidentiary basis for the objection, but the real message is that an objection may be used for any purpose whatsoever so long as you can make it with a straight face.
This view is unfortunate, amounting to nothing more than the unprincipled use of objections for a wholly improper purpose. No judge would allow a lawyer to object on the ground that the opposition’s examination is going too well. The fact that disruption can be accomplished without saying that does not justify the attempt.
IV. A SHORT LIST OF COMMON OBJECTIONS
A complete discussion of evidentiary objections is beyond the scope of this book. The following list of some frequently made objections (and responses) is based on the Federal Rules of Evidence and is intended only as a reference or guide, not as a substitute for a thorough knowledge of the rules of evidence and procedure in your mock trial.
As you read the following list of common objections, you will note that we provide an example of an improper question or of potentially inadmissible testimony, followed by the appropriate objection. We also list the responses that may be given by the proponent of the evidence in order to overcome the objection. In some cases, the best response is to reword the question or to ask a different question altogether.
A. Nonsubstantive Objections
1. Leading question (on direct examination only)
A leading question suggests or contains its own answer. Leading questions are objectionable on direct examination unless they are meant to signal a transition or lay foundation.
PROPONENT: You then saw the Defendant flee the scene of the crime, right?
OPPONENT: Objection, Your Honor, counsel is leading the witness.
Responses: The question is transitional, foundational, or refreshing the witness’s recollection. Leading questions can most often be rephrased in nonleading form.
2. Compound question
A compound question contains two separate questions that are not necessarily susceptible of a single answer.
PROPONENT: Did you determine the point of impact from conversations with witnesses
and from physical marks, such as debris in the road?
OPPONENT: Objection, Your Honor, that question is compound.
Responses: Dual inquiries are permissible if the question seeks to establish a relationship between two facts or events. For example, “Didn’t he move forward and then reach into his pocket?” Other than to establish a relationship, compound questions are objectionable and should be rephrased.
3. Vague question
A question is vague if it is incomprehensible, incomplete, or if any answer will necessarily be ambiguous.
PROPONENT: When do you leave your house in the morning?
OPPONENT: Objection, Your Honor, the question is vague since it does not specify a day
of the week.
Responses: A question is not vague if the judge understands it; Many judges will ask the witness whether he or she understands the question. Unless the precise wording is important, it is often easiest to rephrase a vague question.
4. Argumentative question
An argumentative question asks the witness to accept the examiner’s summary, inference, or conclusion rather than to agree with the existence (or nonexistence) of a fact. Questions can be made more or less argumentative depending upon the tone of voice of the examiner.
PROPONENT: Do you really expect this jury to believe that you are telling the truth?
OPPONENT: Objection, Your Honor, that question is argumentative.
Responses: While it will not be persuasive to say, “Your Honor, I am not arguing,” it might be persuasive to explain the nonargumentative point that you are trying to make. Alternatively, make no response, but wait to see if the judge thinks that the question is argumentative. If she does, rephrase the question.
5. Narratives
Witnesses are required to testify in the form of question and answer. This requirement ensures that opposing counsel will have the opportunity to frame objections to questions before the answer is given. You can object to questions that call for a narrative answer, as well as to an answer that has become narrative. A narrative answer is one that proceeds at some length in the absence of questions. An answer that is more than a few sentences long can usually be classified as a narrative.
PROPONENT: Tell us everything you did on July 14.
OPPONENT: Objection, Your Honor, that question calls for a narrative answer.
Responses: The best response is usually to ask another question that will break up the narrative. Note that expert witnesses are often allowed to testify in narrative fashion since technical explanations cannot be given easily in question and answer format. Even then, however, it is usually more persuasive to interject questions to break up long answers.
6. Asked and answered
A question is “asked and answered” if it calls for a repetition of testimony from a witness who has previously given the same testimony in response to a question asked by the same counsel. Once an inquiry has been “asked and answered” by one side in a trial, further repetition by that side is objectionable. Variations on a theme, however, are permissible, so long as the identical information is not repeated. The asked and answered rule does not preclude inquiring on cross examination into subjects that were covered fully on direct. Nor does it prevent asking identical questions of different witnesses.
PROPONENT: Mr. Burns, you killed Steve, right?
ANSWER: No, I did not.
PROPONENT: Yes, you did kill him, didn’t you?
OPPONENT: Objection, Your Honor, asked and answered.
Responses: If the question has not been asked and answered, counsel can point out to the judge the manner in which it differs from the earlier testimony. Otherwise, it is best to rephrase the question so as to vary the exact information sought.
7. Assume facts not in evidence
A question, usually on cross examination, is objectionable if it includes as a predicate a statement of fact that has not been proven. The reason for this objection is that the question is unfair; it cannot be answered without conceding the unproven assumption.
PROPONENT: You left your home so late that you only had fifteen minutes to get to your office,
correct? (Where the witness’s departure time was not previously established.
OPPONENT: Objection, that question assumes facts not in evidence, Your Honor.
Responses: A question assumes facts not in evidence only when it utilizes an introductory predicate (“You left your home so late…”) as the basis for another inquiry (“that you only had fifteen minutes to get to your office”). Simple, one-part cross examination questions do not need to be based upon facts tat are already in evidence. For example, it would be proper to ask a witness, ”Didn’t you leave home late that morning?” whether or not there had already been evidence as to the time of the witness’s departure. As a consequence of misunderstanding this distinction, “facts not in evidence” objections are often erroneously made to perfectly good cross examination questions. If the objection is sustained by the judge, most questions can easily be divided in two.
8. Nonresponsive answers (on cross examination only)
Testimony is “nonresponsive” if it does not answer the specific question asked. Counsel may ask to have the non-responsive answer stricken from the record and/or to have the judge instruct the witness to answer the question.
PROPONENT: You don’t like Ms. Zagnoli, do you?
ANSWER: I would certainly prefer not to spend my time around her.
PROPONENT: Like I said, you don’t like her, do you?
ANSWER: Sometimes she can be a real jerk.
PROPONENT: Your Honor, I ask that the witness’s answer be stricken as nonresponsive.
THE COURT: It will be stricken. Mr. Rosenberg, please answer the question “yes” or “no”
if you are able to do so.
Responses: If you believe the witness is answering the question to the best of his ability, stand up and inform the court.
B. Substantive Objections
1. Hearsay
Hearsay statements are verbal or written assertions previously made out of court that are being offered at trial to prove the truth of the matter asserted. Hearsay includes statements made by the witness testifying or statements made by others that are subsequently repeated by the testifying witness, as well as any information contained in documents, regardless of the author. Whenever a witness testifies, or is asked to testify, about what she or someone else said or wrote in the past, the statement should be subjected to hearsay analysis.
PROPONENT: You told your mother that her heirloom bracelet had been stolen during the
robbery, isn’t that right?
OPPONENT: Your Honor, that question calls for hearsay.
Responses: Out-of-court statements are admissible if they are not hearsay or if they fall within one of the exceptions to the hearsay rule. Remember that statements are not hearsay if they are offered for a purpose other than to “prove the truth of the matter asserted.” This, in the above example, if the cross examiner is using the statement for something other than to prove that the bracelet was indeed stolen, it is not being offered for the truth. (Note that the relevance of statements not being offered for their truth must be established.)
a. Statements that are not hearsay
In addition to statements that are not offered for their truth, two other types of statements are nonhearsay. A witness’s own previous statement is not hearsay if (A) it was given under oath and it is inconsistent with the current testimony; or (B) it is consistent with the current testimony and it is offered to rebut a charge of recent fabrication by the witness, or (C) it is a statement of past identification.
In addition, an admission of a “party-opponent” is defined as nonhearsay if it is being offered against that party. A party-opponent can be either the plaintiff or the defendant in a civil case or the defendant in a criminal case (or, generally, that person’s agent – i.e., someone authorized to speak on his behalf, such as a high-level employee in his company).
b. Exceptions to the hearsay rule
Some of the more frequently encountered exceptions to the hearsay rule follow:
Present Sense Impression: A statement describing an event made while the declarant is observing it (or immediately thereafter). For example, “Look, there goes the President” or “Did you see the President just walk by?”
Excited Utterance: A statement relating to a startling event made while the declarant was under the stress of excitement caused by the event. For example, “A piece of plaster fell from the roof, and it just missed me.”
State of mind: A statement of the declarant’s mental state or condition. For example, “He said that he was so mad he couldn’t see straight.”
Past Recollection Recorded: A memorandum or record of a matter about which the witness once had knowledge but which she has since forgotten. The record must have been made by the witness when the events were fresh in the witness’s mind and must be shown to have been accurate when made.
Business records: The business records exception applied to the records of any regularly conducted activity. Thus, school, hospital, or social club records, among others, can be considered business records. To qualify as an exception to the hearsay rule the record must have been made at or near the time of the transaction by a person with knowledge or transmitted from a person with knowledge. It must also have been made and kept in the ordinary course of business. The foundation for a business record must be laid by the keeper of the record or by some other qualified witness.
Reputation as to Character: Evidence of a person’s reputation for truth and veracity is an exception to the hearsay rule. (Note that there are restrictions other than hearsay on the admissibility of character evidence.)
Prior Testimony: Testimony given at a different proceeding, or in deposition, qualifies for his exception if (1) the testimony was given under oath; (2) the opposing party had an opportunity to cross examine the declarant; and (3) the declarant is not a possible witness in the trial.
Dying Declaration: A statement by a dying person that relates to the cause or circumstances of what the declarant believed to be impending death. For instance, “Karen just shot me.” Dying declarations are admissible only in homicide prosecutions or civil cases.
Statement Against Interest: A statement so contrary to the declarant’s pecuniary, proprietary, or penal interest that no reasonable person would have been made it unless it were true. For example, “I can’t believe I got away with robbing that store.” The declarant must not be a possible witness in the trial and other limitations may apply in criminal cases.
Catch-All Exception: Other hearsay statements may be admitted if their probative value outweighs the prejudice they may cause to the opposing party and/or if they contain other sufficient circumstantial guarantees of trustworthiness. The declarant must not be a possible witness in the trial.
2. Irrelevant
Evidence is irrelevant if it does not make any fact of consequence to the case more or less probable. Evidence can be irrelevant if it proves nothing or if it tends to prove something that does not matter.
PROPONENT: Please describe George’s personal hygiene.
OPPONENT: Objection, Your Honor, that information is irrelevant.
Response: Explain the relevance of the testimony.
3. Unfair prejudice
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Note that evidence cannot be excluded merely because it is prejudicial; by definition, all relevant evidence is prejudicial to one party or the other. Rather, the objection only obtains if the testimony has little probative value and it is unfairly prejudicial. The classic example is a graphic and upsetting photograph of an injured crime victim offered to prove some fact of slight relevance, such as the clothing that the victim was wearing. The availability of other means to establish the same facts is usually also considered by the court. Thus, if the prosecution can establish the type of clothing that was worn by the victim though the testimony of her neighbor (who saw her leave her apartment just prior to the murder), the court is less likely to allow the photograph.
PROPONENT: You’re a card-carrying member of the NRA, aren’t you, Mr. Peterson?
OPPONENT: Objection, Your Honor, the probative value of Mr. Peterson’s membership
in the NRA is outweighed by the prejudicial nature of that information.
Responses: Most judges are hesitant to exclude evidence on this basis. A measured explanation of the probative value of the testimony is the best response.
4. Improper character evidence generally
Character evidence is generally not admissible to prove that a person acted in conformity with his or her character. For example, a defendant’s past burglaries cannot be offered as proof of current negligence.
PROPONENT: This isn’t the first time you’ve been involved in a traffic accident, is it, Mr. Fisz?
OPPONENT: Objection, Your Honor, that is improper character evidence.
Responses: A criminal defendant may offer proof of good character, which the prosecution may then rebut. Also, past crimes and bad acts may be offered to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
a. Conviction of crime
The commission, and even the conviction, of past crimes is not admissible to prove current guilt.
The credibility of a witness who takes the stand and testifies however, may be impeached, on the basis of a prior criminal conviction, but only if the following requirements are satisfied: the crime must have been either a felony or one that involved dishonesty or false statement, regardless of punishment. With certain exceptions, the evidence is not admissible unless it occurred within the last ten years. Juvenile adjudications are generally not admissible.
The impeachment is generally limited to the fact of conviction, the name of the crime, and the sentence received. The details and events of the crime are generally inadmissible:
PROPONENT: Thirteen years ago you committed another robbery, didn’t you?
OPPONENT: Objection, Your Honor, that is improper character evidence bec ause
it occurred over ten years ago.
Responses: If the crime was not a felony the conviction may still be admissible if it involved dishonesty. If the conviction is more than ten years old it may still be admissible if the court determines that its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
b. Untruthfulness
The past acts of a person may not be offered as proof that he or she committed similar acts. Specific instances of conduct are admissible for the limited purpose of attacking or supporting credibility. A witness may therefore be cross examined concerning past bad acts only if they reflect upon his truthfulness or untruthfulness.
PROPONENT: You were audited by the IRS two years ago, weren’t you?
OPPONENT: Objection, that is improper character evidence.
PROPONENT: Your Honor, if I may, Ms. Alleman’s audit by the IRS is probative of her
truthfulness since she was forced to pay $10,000 in back taxes for
unreported income following that audit.
Responses: Explain the manner in which the witness’s past bad acts are probative of untruthfulness, as illustrated above.
c. Reputation
Reputation evidence is admissible only with regard to an individual’s character for truthfulness or untruthfulness. Moreover, evidence of a truthful character is admissible only after the character of the witness has been attacked.
ANSWER: Scott is known as a real trickster among his friends – someone no one
should trust.
OPPONENT: Objection, Your Honor. This is improper character evidence.
PROPONENT: May I respond?
THE COURT: Go ahead.
PROPONENT: Your Honor, this testimony, that Mr. Wallace is known amongst his friends
as an untrustworthy trickster, illustrates the defendant’s reputation for
truthfulness. As such, it is proper character evidence.
Responses: Explain the manner in which the reputation evidence is probative of truthfulness or untruthfulness.
5. Speculation or lack of personal knowledge
Witnesses (other than experts) must testify from personal knowledge, which is generally defined as sensory perception. A witness’s lack of personal knowledge may be obvious from the questioning, may be inherent in the testimony, or may be developed by questioning on voir dire.
PROPONENT: Where was the defendant at the time of the crime?
ANSWER: He must have been back at the bar by that time.
OPPONENT: Objection, Your Honor, the witness is speculating (or the witness lacks
of personal knowledge of the defendant’s whereabouts at that time).
Responses: Ask further questions that establish the witness’s personal knowledge. Witnesses are permitted to make reasonable estimates rationally based upon perception.
6. Improper lay opinion
Lay witnesses (nonexperts) are generally precluded from testifying as to opinions, conclusions, or inferences.
PROPONENT: How did the defendant look to you that night?
ANSWER: He looked like he was high on cocaine to me.
OPPONENT: Objection, Your Honor, improper lay opinion.
Responses: Lay witnesses may testify to opinions or inferences if they are rationally based upon the perception of the witness. Common lay opinions include estimates of speed, distance, values, height, time, duration, and temperature. Lay witnesses are also commonly allowed to testify as to the mood, sanity, demeanor, sobriety, or tone of voice of another person.
7. Authenticity
Exhibits must be authenticated before they may be admitted. Authenticity refers to adequate proof that the exhibit actually is what it seems or purports to be. Virtually all documents and tangible objects must be authenticated. (Recall that in mock trial, the authenticity of exhibits is often the subject of stipulations listed in the case file.) Since exhibits are authenticated by laying a foundation, objections may be raised on the ground of either authenticity or foundation. This subject is discussed in greater detail in Chapter 5 (“Foundations and Exhibits”).
PROPONENT: (To the court) At this time the Plaintiff moves Exhibit 2 into evidence.
OPPONENT: I object to authenticity. Counsel has not shown that this document was
in fact written by the witness,
Responses: Ask additional questions that establish authenticity.
8. Lack of foundation
Nearly all evidence, other than a witness’s direct observation of events, requires some sort of predicate foundation for admissibility. An objection to lack of foundation requires the judge to make a preliminary ruling as to the admissibility of the evidence.
The evidentiary foundations vary widely. For example, the foundation for the business records exception to the hearsay rule includes evidence that the records were made and kept in the ordinary course of business. The foundation for the introduction of certain scientific evidence requires the establishment of the chain of custody. The following list includes some, though by all means all, of the sorts of evidence that require special foundations for admissibility: voice identifications, telephone conversations, writings, business records, the existence of a privilege, dying declarations, photographs, scientific tests, expert and lay opinions, and many more. This subject is discussed in greater detail in Chapter 5 (“Foundations and Exhibits”).
PROPONENT: (To the court) At this time the Plaintiff moves Exhibit 2 into evidence.
THE COURT: Any objections?
OPPONENT: Yes, Your Honor, we object to authenticity. Counsel has not shown that
the knife is in substantially the same condition as when the witness
first examined it.
PROPONENT: I’ll lay the foundation, Your Honor.
THE COURT: Very well.
PROPONENT: Is this knife in the same condition as when you first examined it?
ANSWER: Other than the fact that the victim’s blood has been cleaned off, yes.
Responses: Ask additional questions that lay the necessary foundation, as illustrated above.
Objections are the means by which evidentiary disputes are raised and resolved. Objections may be made to the questions posed by attorneys, the testimony given by witnesses, the introduction or use of exhibits, or to the demeanor or behavior of the participants of a trial, including the presiding judge.
Although the process of objecting has become associated in the popular mind with contentiousness and even hostility, that need not be the case. Our adversary system relies upon opposing attorneys to present evidence and the judge to decide upon the admissibility. An objection, then, is nothing more than a signal to the judge that there is a disagreement between counsel concerning the rules of evidence or procedure.
When there are no objections, which is the overwhelming majority of the time, the judge can allow evidence to come into the record without the need for a specific ruling. If we had no process of objecting, the trial judge would have to rule upon every separate answer and item of evidence. Thus, unless the process is abused or misused, trials are actually expedited by the judge’s ability to rely upon counsel to object to questionable evidence.
Recall from Chapter 2 (“Case Preparation”) that you determine the admissibility of information or conduct using the rules of evidence provided in your case file. If a piece of evidence is allowed under the rules, it is admissible; evidence that is not allowed is inadmissible. The presiding judge determines the admissibility of the evidence at trial; she hears objections from counsel and rules upon them.
Objections that are “sustained” by the judge were appropriately raised and deemed applicable to the given situation; “overruled” objections were either inappropriately raised or deemed not applicable under the rules.
The lawyer making an objection is called the opponent of the evidence whereas the lawyer attempting to elicit the evidence is the proponent.
There are two main types of objections: substantive and nonsubstantive. Substantive objections being into question the admissibility of the content of the testimony or exhibit at issue. Nonsubstantive objections raise the appropriateness of the manner in which the information is being sought or delivered to the court.
A. Nonsubstantive objections
The most common nonsubstantive objections are those that challenge the form of a question asked. For example, a leading question on direct examination is improper because it tells the witness what answer is expected. Even if the answer itself would be admissible, the question is not allowed because of its suggestiveness. Likewise, compound questions, vague questions, and argumentative questions, to name a few, are also objectionable because of their form.
Nonsubstantive objections may also be made to anything else that might have an impermissible impact on the trier of fact. For instance, a lawyer can object if opposing counsel raises her voice to a witness or approaches the witness in an intimidating manner./ Likewise, counsel may object to the manner in which exhibits are displayed or to the position of chairs and tables in the courtroom.
B. Substantive Objections
Even if a question is phrased in the proper form, it may nonetheless call for inadmissible evidence. The information sought may be irrelevant, unduly prejudicial, or hearsay. For instance, the question, “What is your religious affiliation?” is in proper form but any answer would be inadmissible under most rules of evidence since it is almost certainly irrelevant.
In addition, even if a question is not objectionable, a witness may respond with an inadmissible answer. The answer might volunteer irrelevant information, it might contain unanticipated hearsay, or it might consist entirely of speculation. For example, a direct examiner could ask the perfectly allowable question, “How do you know that the traffic light was red?” only to receive the hearsay reply, “Because Jared Harris told me just last week.” Hearing this response, opposing counsel would no doubt object to the answer and move that it be stricken from the record.
II. THE RULES OF OBJECTING
This portion of the chapter gives students guidelines to follow in determining whether, when and how to object, as well as how to respond to, and recover from, objections.
A. Consider Objections Carefully
In Chapter 2 (“Case Preparation”) we explained in detail how to outline your case for trial. By following this method, you have already compiled a list of all the facts to which each witness may testify and every possible substantive objection (and response) that may be raised. You have also taken this process one step further by determining which substantive objections are worth making. Knowing this information will make jour job at trial much easier since it will enable you to anticipate many substantive objections with the comfort of a planned response.
Despite this, there will always be instances in a mock trial when you will want to object to the manner in which information is sought or delivered to the court. These nonsubstantive objections are impossible to anticipate. Instead, in the heat of trial, you must consider whether to object on a split-second basis.
When deciding whether to object, ask yourself if the objection is truly necessary. Not every valid objection needs to be made. Objections can be tiresome; they interrupt the flow of the evidence, they distract attention from the real issues at hand, and they have an awful tendency to degenerate into whining. You may even lose points with the judge by incessantly interrupting your opposition only to point out your incredible grasp of the rules of evidence.
For instance, there is little point to objecting if opposing counsel will be able to rectify the problem simply by rephrasing the question, as is the case with most nonsubstantive objections that address the improper form of a question. This is particularly true of leading questions on direct examination:
PROPONENT: Isn’t it true that you had the green light as you approached the intersection?
OPPONENT: Counsel is leading his own witness.
THE COURT: The objection is sustained.
PROPONENT: What color was the traffic light as you approached the intersection?
ANSWER: It was green.
In this example, the objection to the leading question accomplished nothing in the way of excluding evidence and may actually have emphasized the witness’s testimony that the light was green. Counsel would have been just as well off not making it.
Of course, the persistent use of leading questions to feed answers to a witness is quite another matter. In those circumstances, an objection should almost always be made.
B. Direct All Arguments to the Judge
Objections at trial are conducted as a conversation between counsel and the court. The general scenario is for the opponent of the evidence to argue first, followed by the proponent of the evidence and concluding with a reply from the opponent. In practice, however, the format is often much less formal, with the judge asking questions and counsel responding.
No matter what, counsel should not argue with, or even address, each other. It is the judge who will make the ruling and the judge who must be convinced. It is ineffective, distracting, and even insulting to the court when counsel turn to each other to argue their objections:
OPPONENT: Objection, Your Honor, lack of foundation.
PROPONENT: What more foundation could you want, counselor?
OPPONENT: Well, you could start with a basis for personal knowledge.
PROPONENT: He already testified that he is the comptroller. Isn’t that enough for you?
No matter how foolish, trite, or easily disposed of the other side’s position seems, avoid speaking directly to opposing counsel. All of your arguments should be made to the court.
C. In Jury Trials, Request Sidebars
Occasionally during a jury trial it is important that the jury not hear the content of counsels’ arguments following objections. This is true when it is necessary to recite the expected testimony so the judge can rule on the objection, or to refer to other evidence that has not yet been admitted. The most common way of insulating the jury from the attorneys’ argument is for counsel to approach the bench and hold, in whispered tones, a sidebar conference with the presiding judge. A sidebar can be called by the court or requested by either party simply by asking, “Sidebar, Your Honor?”
Presumably to save time, some mock trial rules of procedure do not allow for sidebar conferences. If sidebar conferences are not allowed in your competition, you can still demonstrate your recognition that one is called for by raising your objection and, before proceeding to argument, asking, “May we assume we are out of the presence of the jury, Your Honor?”
D. Raise Objections Appropriately
The accepted format for making and meeting objections may differ from court to court. The majority approach is as follows:
1. Stand up
You should stand whenever you speak to the presiding judge, including when you raise objections. Sitting while objecting is disrespectful to the judge. Some judges refuse to entertain objections from seated counsel. Even if your judge does allow you to object while sitting, most will not be pleased by the practice.
Aside from showing respect to the court, there is another benefit to standing while objecting. Since the purpose of objecting is to keep inadmissible information from being introduced at trial, standing to make your objection draws the physical attention of everyone in the courtroom away from the current action and onto you.
2. Object and state your grounds
The best way to state your objection is clearly and concisely. For instance:
“Objection, Your Honor, relevance.”
“Objection, counsel is leading the witness.”
“Your Honor, we object on the ground of hearsay.”
“Objection, lack of foundation.”
You may also refer directly to the precise rule of evidence on which your objection relies. For example:
“Objection, your Honor, this information is irrelevant under Rule 401.”
“Objection, your Honor, this is improper character evidence under Rule 404(b).”
“Your Honor, we object to hearsay under Rule 801.”
This method demonstrates your knowledge of the rules and impeccable trial preparation, in addition to signaling to the judge the specific nature of your objection.
If your mock trial is formatted as jury trial, you can take these methods one step further by adding a descriptive tag line so that the jury will understand the basis of your objection:
“Objection, hearsay, Your Honor. Under Rule 801 the witness cannot testify to what somebody else
said.”
“Objection, Your Honor, leading: counsel is testifying instead of the witness.”
While it is reasonable to explain the nature of your objection to be sure the judge and jury understand, there is no need to comment on the inadequacy of the evidence. Lawyers who make objections such as, “Your Honor, I fail to see the relevance of counsel’s last question” are often met with rebukes from the judge like this one: “It doesn’t matter whether or not you see it. Just make an objection if you have one, counsel.”
3. Pause for the judge to consider the objection
Some attorneys feel the need to launch into an extended discourse on the bases for their objections before allowing the judge to rule or opposing counsel to speak. Such a “speaking objection” might sound like this:
“Objection, Your Honor, that question calls for hearsay. The witness’s personal notes constitute an
out-of-court statement, even though the witness is present on the stand. They do not qualify either
as business records or as past recollection recorded, and in any event there has been no
foundation.”
While there is no absolute rule against speaking objections, most judges do not like them because they take up time when the judge might be willing to rule immediately.
Rather than launching into a narrative, simply state the basis for your objection and remain standing until the judge responds. The judge may respond in one of five ways: she may overrule your objection; she may sustain your objection; she may ask opposing counsel to respond; she may ask you to further explain your grounds; or she may simply pause for a moment to collect her thoughts on the matter.
4. If appropriate, respond to the court
If the judge sustains your objection immediately, your job is done. If she overrules it, you may wish to politely ask the judge if you may be heard on the matter further by stating, “Your Honor, may I be heard?” Use this technique prudently, however. If the judge allows you to be heard after ruling against you once and your additional statements do not change her mind, she is unlikely to allow you the luxury again.
If the judge seeks a response from opposing counsel, she will usually return to you so you may have the last say. If she does not, use your instincts to tell you whether it is appropriate for you to ask to be heard on the matter again. You might say, “May I respond, Your Honor?” This technique is also useful for those times when the judge appears to be wavering in her ruling or pausing in thought. It is usually safe to take these cues as invitations to further explain your argument. Always ask permission to speak before you do so, however.
Be sure that any additional assertions you make beyond your initial objection and statement of grounds are different than those you already expressed. Repeating your grounds or effectively doping so with different language will only wear on the judge’s patience and lessen your credibility. If you have nothing more to say, be honest about it with the judge and say, “I have nothing further, Your Honor” or “I stand on my objection, Your Honor.”
5. Special considerations
There are a few types of objections that merit special handling.
a. Repeated objections
It is sometimes necessary to raise the same objection to a number of questions in a row. Perhaps your initial objection was sustained, but your opponent is persistent in attempting to introduce the inadmissible evidence through other means. Perhaps your initial objection was overruled, and you feel bound to continue objecting as opposing counsel asks a series of questions in elaboration. In any event, an awkward feeling inevitably arises when it is necessary to object repeatedly, on the same ground, to question after question.
The least obtrusive way to raise a repeated objection is to say “same objection” at the end of each of opposing counsel’s questions. The judge can then repeat her ruling and will eventually instruct opposing counsel to move on to another line of questioning.
If your “same objections” are being consistently overruled, the judge is likely to tire of them even sooner. The best way to handle this situation is to assert a “standing objection.” The theory of the standing objection is that a single objection will be considered to “stand” or apply to an entire line of questioning, without the need for repeated interruptions. In most instances, the judge will grant your request for a standing objection. She might say, for example:
THE COURT: Counsel, you may have a standing objection to that line of questioning.
OPPONENT: Thank you, Your Honor. For the record, we object to all further testimony
concerning any conversations between the defendant and Ms. Wallace,
including Ms. Wallace’s alleged references to the investigative report.
Ms. Wallaces's statements are hearsay and the comments on the content
of the report are double hearsay.
THE COURT: Very well. (To proponent) Ask your next question.
. . . .
E. Time Objections Appropriately
Having determined what to say in raising an objection, one must consider when to say it. The general rule is that an objection must be made as soon as it is apparent that it is called for. On the other hand, an objection may be premature if it interrupts an incomplete question or if it anticipates testimony that may or may not be given.
Most objections to questions should be held until the examiner has had the opportunity to complete the question. Not only is it rude to interrupt, but the final version may turn out not to be objectionable. Fthis reason, many judges will refuse to rule on an objection until the question has been completed.
There are times, however, when it is necessary to interrupt the questioner. Some questions are objectionable not because of what they will elicit, but because of what they assert. A question may contain a damaging suggestion or proposition which, once heard by the fact-finder, cannot be wholly remedied by objection. Such questions must be interrupted in order to cut off the interrogator’s inadmissible statement. For example, a cross examiner may be about to question a witness about an inadmissible criminal conviction. Imagine this scenario:
PROPONENT: Isn’t it true that you were convicted---
OPPONENT: Objection, Your Honor. Counsel is seeking information that is prohibited
under Rule 609(d).
THE COURT: Sustained.
Timing objections to questions is relatively easy. Often, however, a witness will respond to a seemingly proper question with a wholly inadmissible answer. The timing in these situations is trickier since, by definition, the answer was not foreshadowed by the question. The general rule is that an objection must be made as soon as the inadmissible nature of the answer becomes apparent. This necessarily means interrupting the witness. For example:
PROPONENT: When did you begin your investigation of the defendant’s financial situation?
ANSWER: I began the investigation as soon as I received an anonymous letter charging that--
OPPONENT: We object on the grounds of hearsay and foundation.
THE COURT: Sustained.
It will not do to allow the witness to finish the answer because by then the fact-finder would have heard the testimony and the harm would be done.
Unfortunately, it is not always possible to recognize and respond to inadmissible testimony before it happens. Counsel may be momentarily distracted or may suffer from rusty reflexes. And some witnesses, either innocently or by design, have a way of slipping improper testimony into the record. When this happens, your only recourse is to make a “motion to strike.” A motion to strike, when granted, has the effect of noting for the record that the improper testimony is not to be considered as part of the evidence for appeal purposes. Although there is no appeals process following a mock trial, you should still demonstrate your knowledge of trial skills by making motions to strike. Here is an example of the effective use of a motion to strike:
PROPONENT: Are you the comptroller of the defendant’s corporation?
ANSWER: The only thing I knew about skimming funds came through the rumor mill.
OPPONENT: Objection, hearsay. We move to strike that answer.
THE COURT: Sustained. The answer will be stricken from the record.
If your mock trial is being conducted as jury trial, you should also ask the judge to instruct the jury to disregard the inadmissible answer:
OPPONENT: Will Your Honor please instruct the jury to disregard that last answer?
THE COURT: Yes, certainly. Ladies and gentlemen, you are to disregard the answer that
the witness just gave. Proceed.
While this sort of curative instruction is hardly a satisfying remedy, it is the best that can be done under the circumstances.
F. Respond to Objections Appropriately
The etiquette for the attorney responding to an objection is much the same as for the objecting attorney. Recall that the judge may react to an objection in one of five ways: she may sustain it; she may overrule it; she may ask you to respond to it; she may ask the attorney objecting to explain his grounds further; or she may pause to collect her thoughts.
1. Wait for the judge’s cue to respond
Many judges like to rule on objections immediately after they are made. Thus, as a general rule, it is best for you to keep quiet until you are invited to respond, either verbally or nonverbally, by the judge. If the judge overrules the objection immediately, your job is done.
Other judges prefer to hear argument from counsel before ruling on objections. In this case, the judge might turn to you and say, “Response, counsel?” or she might nod in your direction, signaling that it is safe to respond.
2. If appropriate, request to be heard
Many objections cannot be so quickly decided because they raise subtle or complex legal issues. Aspects of an objection may escape the judge or may require consideration of additional information that is not already apparent to the judge. In these circumstances, counsel cannot rely on an invitation to argue from the judge and will need to inform the court, as politely as possible, that argument is necessary. It is preferable to do this before the judge has ruled, if that can be accomplished without interrupting. An effective signal is to stand while the objection is being made or, if you are already standing, to take a step toward the bench, in order to alert the judge that argument is desired.
If the judge sustains opposing counsel’s objection without asking for your input, do not be shy about letting the judge know that there is another side to the objection:
PROPONENT: What did the police officer say to you?
OPPONENT: Objection, hearsay.
THE COURT: Sustained.
PROPONENT: Your Honor, may I be heard on that?
THE COURT: Very well, what do you have to say?
PROPONENT: The statement falls under the “present sense impression” exception.
THE COURT: I see. Overruled. The witness may answer.
3. Respond specifically
The key to responding to any objection is specificity. A judge who has agreed to listen to argument on an objection has indicated that she is persuadable. A good argument will result in the admission of the evidence only if it provides the judge with a good reason to overrule the objection. Tell the judge exactly why the proffered evidence is admissible. Some lawyers, for reasons known only to themselves, respond to objections by repeating the evidence and exhorting the judge to admit it. The following scenario is not at all unusual:
PROPONENT: What did the defendant do immediately after the accident?
ANSWER: He began yelling at his eight-year-old son.
OPPONENT: Objection. The defendant’s relationship with his son is irrelevant.
THE COURT: It does seem irrelevant. What do you have to say, counsel?
PROPONENT: It is very relevant, Your Honor. It shows that he was yelling at his child.
This response communicates very little to the judge. What is the probative value of the defendant’s conduct? Note how much more effective it is when counsel explains why the evidence is being offered to the court:
PROPONENT: What did the defendant do immediately after the accident?
ANSWER: He began yelling at his eight-year-old son.
OPPONENT: Objection. The defendant’s relationship with his son is irrelevant.
THE COURT: It does seem irrelevant. What do you have to say, counsel?
PROPONENT: The defendant’s anger at his son tends to show that he was distracted by the
child just before the accident. It goes directly to negligence, Your Honor.
The judge may or may not agree with the proponent’s assessment of the evidence, but at least she will have the benefit of his analysis.
a. Inform the court of limited admissibility
Evidence may be inadmissible for some purpose yet admissible for others. When responding to objections it is extremely important to advise the judge of the admissible purpose for which the evidence is offered.
For example, evidence that a dangerous condition has been repaired is generally inadmissible to prove negligence. Counsel cannot argue to the trier of fact, “Of course the owner of the car took inadequate care of the automobile; he had his brakes repaired just two days after the accident.” On the other hand, evidence of the repair is admissible to prove ownership of the automobile. Counsel can argue, “The defendant denies that he was responsible for the upkeep of the car, but he was the one who ordered and paid for the repair of the brakes just two days after the accident.”
With this dichotomy in mind, consider the possible objections and responses in the cross examination of the defendant:
PROPONENT: Didn’t you have your brakes repaired just two days after the accident?
OPPONENT: Objection, Your Honor, this testimony violates Rule 407 because it shows
subsequent remedial measures.
THE COURT: What do you have to say, counsel?
PROPONENT: We are offering it only to prove ownership and control, Your Honor.
THE COURT: The evidence will be received, but only for that limited purpose. Ladies and
gentlemen of the jury, you are to consider this evidence only for the purpose
of showing ownership and control of the automobile. You must not consider
it as proof of any negligence on the part of the defendant.
If the court does not immediately give a limiting instruction, one should be requested by the attorney whose objection was overruled.
b. Inform the court of a conditional offer
The admissibility of certain testimony, particularly with regard to relevance, may not always be immediately clear as it may depend upon other testimony to be developed through later witnesses. IN these circumstances, counsel may respond to an objection by making a “conditional offer.” This is done either by promising to “tie it up later” or, preferably, by explaining to the court the nature of the evidence that is expected to follow. For example:
PROPONENT: Isn’t it true that you had an important meeting scheduled for the morning of
the accident?
OPPONENT: Objection. The witness’s business schedule is not relevant.
THE COURT: What is the relevance of that inquiry, counsel?
PROPONENT: We intend to introduce evidence that the defendant had a meeting scheduled
with a prospective client, that he was already late for the meeting at the time
of the accident, and that he stood to lose a great deal of money if he didn’t
arrive on time. The question is therefore directly relevant to show that he was
speeding and inattentive.
THE COURT: Based on that representation I will allow the testimony, subject to a motion to
strike if you don’t tie it up.
A conditional offer is always subject to the actual production of the later evidence. Thus, advanced mock trial participants will keep track of conditional offers made by the other side. If opposing counsel fails to elicit the promised testimony, an objection and motion to strike the earlier evidence should be raised at the end of opposing counsel’s case in chief.
4. Cure the objection whenever possible
It is not necessary to fight to the death over every objection. Counsel can frequently avoid an objection by rephrasing the offending question, either before or after the judge rules.
Since the precise language of a question is seldom of vital importance. It should be possible to circumnavigate virtually any “form” objection. Leading questions, compound questions, and vague questions can all be cured. Even if your original question was perfectly fine, you may be able to move the trial along, and earn the gratitude of judge and jury, by posing the same inquiry in different words.
Other objections that can be undercut through rephrasing include personal knowledge, foundation, and even relevance. Fro example:
PROPONENT: Did the plaintiff follow his doctor’s advice?
OPPONENT: Objection. Lack of personal knowledge.
PROPONENT: Let me put it this way. Did the plaintiff say anything to you about his doctor’s
advice?
ANSWER: Yes.
PROPONENT: What did he say?
ANSWER: He said that he would rather risk the consequences than stay in bed all day.
In this scenario, the examination was made stronger by rephrasing the question in response to the objection.
Making and meeting objections involves a certain amount of gamesmanship. No lawyer likes to be seen as an evidentiary pushover. From time to time it may be tactically important to stand behind a question, if only to establish your mastery of the rules. Another alternative is to rephrase a question without saying so. In the above example the attorney neither withdrew the question nor overtly rephrased it, but rather said, “Let me put it this way.” Problem solved.
G. Follow up the Judge’s Ruling
The judge’s ruling on an objection is not necessarily the end of the matter. Counsel must remain alert to ensure that the ruling is carried out and that the grounds for the ruling are followed. Both the proponent of the evidence (offering lawyer) and the opponent (objecting lawyer) may have yet more to do.
1. Objection overruled
a. Proponent’s job
The proponent’s job when an objection is overruled is to ensure that the evidence actually makes its way into the record. In other words, the proponent must make sure that the witness answers the question that the judge has just ruled to be permissible. The following is an all-too-frequent scenario:
PROPONENT: After the accident, what did the crossing guard say to you?
OPPONENT: Objection, Your Honor, the question calls for hearsay.
PROPONENT: May I respond, Your Honor?
THE COURT: Yes.
PROPONENT: Your Honor, it has already been established that the crossing guard
observed the accident immediately before making the declaration, so it
it qualifies as either an excited utterance or a present sense impression.
THE COURT: Yes, I think there is a hearsay exception there. Overruled.
PROPONENT: What is the next thing that you did?
ANSWER: I went to the telephone and dialed 911.
Despite the court’s ruling, the witness was never given an opportunity to answer the original question. The proponent, apparently flushed with victory, just went on to another subject.
Lawyers make similar mistakes when a witness’s answer has been interrupted or when the arguments on the objection overlap the testimony. Sometimes even when the witness was able to get an answer out, the import of the testimony may have been drowned out by the subsequent wrangling over the objection.
On all of these instances, the proponent’s safest course is to repeat the question and to be sure to get a clear answer from the witness. Experienced attorneys will take this job one step further by emphasizing the allowed testimony. For instance:
PROPONENT: After the accident, what did the crossing guard say to you?
OPPONENT: Objection, Your Honor, the question calls for hearsay.
PROPONENT: Response, Your Honor?
THE COURT: Yes, certainly.
PROPONENT: Since the crossing guard observed the accident just before making the declaration, it is an excited utterance or a present sense impression.
THE COURT: The objection is overruled.
PROPONENT: You were about to tell us what the crossing guard said immediately after
witnessing the accident.
ANSWER: Oh yes, he said that the yellow car ran the red light and smashed right
into the blue car.
This technique allows counsel to repeat the question and also to emphasize the favorable circumstances under which it was made.
b. Opponent’s job
The opponent’s job following an overruled objection is to stay alert to the possibility of excluding all or some of the remaining offending evidence. Perhaps the witness will not testify in the manner that was promised by the proponent of the evidence in her argument to the court. For example:
PROPONENT: After the accident, what did the crossing guard say to you?
OPPONENT: Objection, Your Honor, the question calls for hearsay.
PROPONENT: Your Honor, if I may be heard?
THE COURT: Yes.
PROPONENT: The statement of the crossing guard qualifies as a present senseimpression.
THE COURT: Yes, I think so. Overruled.
ANSWER: He said that he didn’t really see what happened, but that it looked as though…
OPPONENT: Your Honor, I renew my objection. If the witness didn’t really see the
accident then this cannot be a present sense impression.
THE COURT: Yes. The objection will be sustained on those grounds.
Alternatively, other grounds for objection may become clear in the course of the testimony, or perhaps the witness will begin volunteering evidence that is inadmissible for some additional reasons. In the above scenario counsel could also have objected on the ground that the crossing guard’s statement (“it looked as though…”) was speculative.
2. Objections sustained
a. Proponent’s job
A sustained objection means that the proponent of the evidence has been denied the opportunity to introduce the testimony or exhibit at trial. Following this ruling, the proponent’s job is to keep trying to have the evidence admitted, if possible. When a judge sustains an objection, the ruling usually applies only to the specific question (or answer) and grounds that were then before the court. Unless the judge says so explicitly, the ruling does not extend to the ultimate admissibility of the underlying evidence. In other words, a sustained objection says only that “the evidence cannot be admitted based on the testimony and arguments heard so far.” It does not say that “the evidence cannot ever be admitted no matter what you do.” Counsel generally has the option to offer the evidence through other means.
These “other means” may consist of nothing more that rephrasing a question. Any objection as to form – leading, compound, vague, argumentative – can be cured by altering the language of the inquiry. Leading questions on direct examination can easily be restated:
PROPONENT: You had the green light when the defendant’s car hit yours, didn’t you?
OPPONENT: Objection, leading.
THE COURT: Sustained.
PROPONENT: What color was your light when the defendant’s car hit yours?
ANSWER: It was green.
Objections are frequently sustained not because of the form of the question but because of some missing predicate in the testimony. Objections to foundation can be cured by eliciting additional foundation. Objections to a witness’s lack of personal knowledge can be remedied with further questions showing the basis of the witness’s information. Relevance objections can be overcome through continued questioning aimed at demonstrating the probative value of the original question. Note the following cross examination of the defendant in our fire truck case:
PROPONENT: Immediately after the accident you started yelling at your eight-year-old
son, didn’t you?
OPPONENT: Objection, relevance.
THE COURT: Sustained.
PROPONENT: Well, your eight-year-old son was in the car at the time of the accident, wasn’t he?
ANSWER: Yes.
PROPONENT: He was sitting in the front seat with a “boom box,” right?
ANSWER: Yes, he was.
PROPONENT: And there was a “heavy metal” tape in the boom box?
ANSWER: I guess that is what you call it.
PROPONENT: That music can be awfully loud, can’t it?
ANSWER: I suppose so.
PROPONENT: Most adults find it extremely annoying, don’t they?
ANSWER: I couldn’t really say.
PROPONENT: And immediately after the accident you yelled at your son, didn’t you?
OPPONENT: Same objection.
PROPONENT: Your Honor, I believe we have established the likelihood that the defendant was
distracted by his son’s music. Yelling at the child is probative on that issue.
THE COURT: Yes, I see your point. Overruled.
The same approach can work for hearsay objections. Additional facts can often be established that will qualify a statement for an exception to the hearsay rule. Moreover, out-of-court statements may sometimes be recast in the form of conduct or observations. In the following example a police officer has just testified on direct examination that she received a radio dispatch that a crime had been committed.
PROPONENT: What was the content of the radio bulletin from the dispatcher?
OPPONENT: Objection, hearsay.
THE COURT: Sustained.
PROPONENT: What did you do immediately after receiving the alert?
ANSWER: I drove to the corner of Grand Avenue and State Street.
PROPONENT: What did you do there?
ANSWER: I began looking for a suspect wearing glasses and a white lab jacket.
The effect of the sustained hearsay objection was avoided by continuing the examination on the admissible subject of the witness’s actions, as opposed to the inadmissible subject of the dispatcher’s out-of-court statement.
It is not always possible to overcome a sustained objection. Some testimony will be flatly inadmissible no matter how many approaches counsel attempts. On the other hand, there are often numerous routes to admissibility, and a sustained objection usually closes off only one. Keep trying.
b. Opponent’s job
When an objection is sustained the opponent of the evidence has been successful. This should bring satisfaction to the objector, and in some cases even rejoicing, but it is never a reason to rest on your laurels. The very next question may ask for the identical evidence, in which case an additional objection must be made. A sustained objection will be a temporary victory indeed if the proponent of the evidence succeeds in having it admitted later in the witness’s testimony. This is not uncommon. Successful objections can come undone as soon as the objector relaxes vigilance:
PROPONENT: Who told you to begin your financial investigation?
ANSWER: I received an anonymous note charging that –
OPPONENT: Objection, hearsay.
THE COURT: Sustained.
PROPONENT: What caused you to begin investigating?
ANSWER: There was a charge that money had been skimmed from one of the trust
accounts.
PROPONENT: How did you learn of the charge?
ANSWER: I received a note.
The opponent of the evidence in this case let down her guard. When the first hearsay objection was successful, she allowed her attention to lapse. She therefore failed to notice that the identical testimony was being introduced as the “cause” of the investigation. The information, of course, is no less hearsay) and no less anonymous) the second time around. A second objection should have been made. The cardinal rule when your objection is sustained is “Do not fall asleep.”
H. Reevaluate Your Theory
Rulings on objections govern the flow of evidence at trial. The availability of evidence forms the underpinning of every attorney’s theory of the case. Theory planning, in turn, involves calculated predictions as to the admissibility of evidence. It may be, therefore, that the court’s ruling on a particularly important objection will require counsel to reevaluate her theory of the case.
Evidentiary rulings must be understood in the context of the entire case. They are not merely passing successes or failures; they can be crucial turning points in the progress of the trial. If an essential item of evidence is excluded, or if some controversial proof is admitted, counsel may have to switch to a new theory or alter her current one, even if this occurs in midtrial.
In some instances the effect of an evidentiary ruling may be only to strengthen or weaken your case. If the court excludes some testimony of one of your witnesses, you might be able to proceed as planned but with a lesser volume of evidence. Recall the fire truck case that we have been using as an example. The plaintiff’s theory was that the defendant caused the accident because he was hurrying to a business meeting for which he was already late. Assume that the court, for whatever reason, sustained an objection to testimony that the defendant was seen rushing from his house that morning with his tie undone and a coffee cup in his hand. This ruling diminishes the proof available to the plaintiff, but so long as other evidence is available, the “hurrying to work” theory can remain intact.
III. ETHICS AND OBJECTIONS
Ethical issues frequently arise in the context of making and meeting objections. Because the objecting process is one of the most confrontational aspects of the trial, it often tests counsel’s reserves of good will, civility, restraint, and sense of fair play. The three most common problems are discussed below:
A. Asking Objectionable Questions
As we have seen, an attorney is usually wise to refrain from objecting to every objectionable question or answer. This raises the possibility that your opposing counsel may choose not to object to testimony by your witnesses even if its admissibility is open to debate. That decision is the opposition’s to make, and there is no need for you to save them from having to make it.
By the same token, the judge is the arbiter of the law. If her evaluation of admissibility is different from counsels, then the judge is correct. This is not a novel concept. Boswell reported that Dr. Johnson took the same position with regard to arguing a case which he knew to be weak:
Sir, you do not know it to be good or bad till the Judge determines it. * * * An argument which does not convince yourself, may convince the Judge to whom you urge it: And if it does convince him, why, then, Sir, you are wrong and he is right.
This principle does not, however, relieve counsel of all responsibility to cull inadmissible evidence from the case.
A corollary to counsel’s right to offer evidence for which there is a reasonable basis is the obligation to refrain from offering evidence for which there is no reasonable basis. In other words, it is unethical to offer evidence knowing that there is no reasonable basis for its admission. Even though opposing counsel might neglect to object, and even though the court might err in its ruling, the adversary system does not extend so far as to allow the intentional use of improper evidence. Indeed, one of the justifications for the adversary system is precisely that counsel can be relied upon to perform this minimum level of self-policing.
Finally it is unethical to attempt to use the information contained in questions as a substitute for testimony that cannot be obtained. Some lawyers apparently believe that the idea of zealous advocacy allows them to slip information before a finder of fact by asserting it in a question, knowing full well that the witness will not be allowed to answer. The usual scenario is something as follows:
PROPONENT: Isn’t it true that you were once fired from a job for being drunk?
OPPONENT: Objection, relevance.
PROPONENT: I withdraw the question. (Proponent’s thought process: Who cares about the
ruling? I never expected to get it in, but now the jury knows that the witness is
a drunk.)
This conduct, even if the information is true, is absolutely unethical. Testimony is to come from witnesses, with admissibility ruled upon by the court. It subverts the very purpose of an adversary trial when lawyers abuse their right to question witnesses in order to slip inadmissible evidence before the fact finder.
B. Making Questionable Objections
The same general analysis applies to the use of objections as it does to the offering of evidence. Opponents of evidence need not be positive that an objection will be sustained but they must believe that there is a reasonable basis for making it. Again, under the adversary system it is up to the judge to decide whether to admit the evidence.
The license to make objections is available only if counsel is truly interested in excluding the subject evidence. That is, an attorney may make any reasonable or plausible objection, but only so long as the purpose of the objection is to obtain a ruling on the evidence. As we will se in the following section, objections may also be employed for a variety of ulterior purposes, most of which are unethical.
C. Making “Tactical” Objections
Many lawyers, and more than a few trial advocacy texts, tout the use of so-called “tactical” objections. Since an objection is the only means by which one lawyer can interrupt the examination of another, it has been suggested that objections should occasionally be made to “break up” the flow of a successful examination. An objection can throw the opposing lawyer off stride, or give the witness a rest, or distract the finder of fact from the content of the testimony. This advice is usually tempered with the admonition that there must always be some evidentiary basis for the objection, but the real message is that an objection may be used for any purpose whatsoever so long as you can make it with a straight face.
This view is unfortunate, amounting to nothing more than the unprincipled use of objections for a wholly improper purpose. No judge would allow a lawyer to object on the ground that the opposition’s examination is going too well. The fact that disruption can be accomplished without saying that does not justify the attempt.
IV. A SHORT LIST OF COMMON OBJECTIONS
A complete discussion of evidentiary objections is beyond the scope of this book. The following list of some frequently made objections (and responses) is based on the Federal Rules of Evidence and is intended only as a reference or guide, not as a substitute for a thorough knowledge of the rules of evidence and procedure in your mock trial.
As you read the following list of common objections, you will note that we provide an example of an improper question or of potentially inadmissible testimony, followed by the appropriate objection. We also list the responses that may be given by the proponent of the evidence in order to overcome the objection. In some cases, the best response is to reword the question or to ask a different question altogether.
A. Nonsubstantive Objections
1. Leading question (on direct examination only)
A leading question suggests or contains its own answer. Leading questions are objectionable on direct examination unless they are meant to signal a transition or lay foundation.
PROPONENT: You then saw the Defendant flee the scene of the crime, right?
OPPONENT: Objection, Your Honor, counsel is leading the witness.
Responses: The question is transitional, foundational, or refreshing the witness’s recollection. Leading questions can most often be rephrased in nonleading form.
2. Compound question
A compound question contains two separate questions that are not necessarily susceptible of a single answer.
PROPONENT: Did you determine the point of impact from conversations with witnesses
and from physical marks, such as debris in the road?
OPPONENT: Objection, Your Honor, that question is compound.
Responses: Dual inquiries are permissible if the question seeks to establish a relationship between two facts or events. For example, “Didn’t he move forward and then reach into his pocket?” Other than to establish a relationship, compound questions are objectionable and should be rephrased.
3. Vague question
A question is vague if it is incomprehensible, incomplete, or if any answer will necessarily be ambiguous.
PROPONENT: When do you leave your house in the morning?
OPPONENT: Objection, Your Honor, the question is vague since it does not specify a day
of the week.
Responses: A question is not vague if the judge understands it; Many judges will ask the witness whether he or she understands the question. Unless the precise wording is important, it is often easiest to rephrase a vague question.
4. Argumentative question
An argumentative question asks the witness to accept the examiner’s summary, inference, or conclusion rather than to agree with the existence (or nonexistence) of a fact. Questions can be made more or less argumentative depending upon the tone of voice of the examiner.
PROPONENT: Do you really expect this jury to believe that you are telling the truth?
OPPONENT: Objection, Your Honor, that question is argumentative.
Responses: While it will not be persuasive to say, “Your Honor, I am not arguing,” it might be persuasive to explain the nonargumentative point that you are trying to make. Alternatively, make no response, but wait to see if the judge thinks that the question is argumentative. If she does, rephrase the question.
5. Narratives
Witnesses are required to testify in the form of question and answer. This requirement ensures that opposing counsel will have the opportunity to frame objections to questions before the answer is given. You can object to questions that call for a narrative answer, as well as to an answer that has become narrative. A narrative answer is one that proceeds at some length in the absence of questions. An answer that is more than a few sentences long can usually be classified as a narrative.
PROPONENT: Tell us everything you did on July 14.
OPPONENT: Objection, Your Honor, that question calls for a narrative answer.
Responses: The best response is usually to ask another question that will break up the narrative. Note that expert witnesses are often allowed to testify in narrative fashion since technical explanations cannot be given easily in question and answer format. Even then, however, it is usually more persuasive to interject questions to break up long answers.
6. Asked and answered
A question is “asked and answered” if it calls for a repetition of testimony from a witness who has previously given the same testimony in response to a question asked by the same counsel. Once an inquiry has been “asked and answered” by one side in a trial, further repetition by that side is objectionable. Variations on a theme, however, are permissible, so long as the identical information is not repeated. The asked and answered rule does not preclude inquiring on cross examination into subjects that were covered fully on direct. Nor does it prevent asking identical questions of different witnesses.
PROPONENT: Mr. Burns, you killed Steve, right?
ANSWER: No, I did not.
PROPONENT: Yes, you did kill him, didn’t you?
OPPONENT: Objection, Your Honor, asked and answered.
Responses: If the question has not been asked and answered, counsel can point out to the judge the manner in which it differs from the earlier testimony. Otherwise, it is best to rephrase the question so as to vary the exact information sought.
7. Assume facts not in evidence
A question, usually on cross examination, is objectionable if it includes as a predicate a statement of fact that has not been proven. The reason for this objection is that the question is unfair; it cannot be answered without conceding the unproven assumption.
PROPONENT: You left your home so late that you only had fifteen minutes to get to your office,
correct? (Where the witness’s departure time was not previously established.
OPPONENT: Objection, that question assumes facts not in evidence, Your Honor.
Responses: A question assumes facts not in evidence only when it utilizes an introductory predicate (“You left your home so late…”) as the basis for another inquiry (“that you only had fifteen minutes to get to your office”). Simple, one-part cross examination questions do not need to be based upon facts tat are already in evidence. For example, it would be proper to ask a witness, ”Didn’t you leave home late that morning?” whether or not there had already been evidence as to the time of the witness’s departure. As a consequence of misunderstanding this distinction, “facts not in evidence” objections are often erroneously made to perfectly good cross examination questions. If the objection is sustained by the judge, most questions can easily be divided in two.
8. Nonresponsive answers (on cross examination only)
Testimony is “nonresponsive” if it does not answer the specific question asked. Counsel may ask to have the non-responsive answer stricken from the record and/or to have the judge instruct the witness to answer the question.
PROPONENT: You don’t like Ms. Zagnoli, do you?
ANSWER: I would certainly prefer not to spend my time around her.
PROPONENT: Like I said, you don’t like her, do you?
ANSWER: Sometimes she can be a real jerk.
PROPONENT: Your Honor, I ask that the witness’s answer be stricken as nonresponsive.
THE COURT: It will be stricken. Mr. Rosenberg, please answer the question “yes” or “no”
if you are able to do so.
Responses: If you believe the witness is answering the question to the best of his ability, stand up and inform the court.
B. Substantive Objections
1. Hearsay
Hearsay statements are verbal or written assertions previously made out of court that are being offered at trial to prove the truth of the matter asserted. Hearsay includes statements made by the witness testifying or statements made by others that are subsequently repeated by the testifying witness, as well as any information contained in documents, regardless of the author. Whenever a witness testifies, or is asked to testify, about what she or someone else said or wrote in the past, the statement should be subjected to hearsay analysis.
PROPONENT: You told your mother that her heirloom bracelet had been stolen during the
robbery, isn’t that right?
OPPONENT: Your Honor, that question calls for hearsay.
Responses: Out-of-court statements are admissible if they are not hearsay or if they fall within one of the exceptions to the hearsay rule. Remember that statements are not hearsay if they are offered for a purpose other than to “prove the truth of the matter asserted.” This, in the above example, if the cross examiner is using the statement for something other than to prove that the bracelet was indeed stolen, it is not being offered for the truth. (Note that the relevance of statements not being offered for their truth must be established.)
a. Statements that are not hearsay
In addition to statements that are not offered for their truth, two other types of statements are nonhearsay. A witness’s own previous statement is not hearsay if (A) it was given under oath and it is inconsistent with the current testimony; or (B) it is consistent with the current testimony and it is offered to rebut a charge of recent fabrication by the witness, or (C) it is a statement of past identification.
In addition, an admission of a “party-opponent” is defined as nonhearsay if it is being offered against that party. A party-opponent can be either the plaintiff or the defendant in a civil case or the defendant in a criminal case (or, generally, that person’s agent – i.e., someone authorized to speak on his behalf, such as a high-level employee in his company).
b. Exceptions to the hearsay rule
Some of the more frequently encountered exceptions to the hearsay rule follow:
Present Sense Impression: A statement describing an event made while the declarant is observing it (or immediately thereafter). For example, “Look, there goes the President” or “Did you see the President just walk by?”
Excited Utterance: A statement relating to a startling event made while the declarant was under the stress of excitement caused by the event. For example, “A piece of plaster fell from the roof, and it just missed me.”
State of mind: A statement of the declarant’s mental state or condition. For example, “He said that he was so mad he couldn’t see straight.”
Past Recollection Recorded: A memorandum or record of a matter about which the witness once had knowledge but which she has since forgotten. The record must have been made by the witness when the events were fresh in the witness’s mind and must be shown to have been accurate when made.
Business records: The business records exception applied to the records of any regularly conducted activity. Thus, school, hospital, or social club records, among others, can be considered business records. To qualify as an exception to the hearsay rule the record must have been made at or near the time of the transaction by a person with knowledge or transmitted from a person with knowledge. It must also have been made and kept in the ordinary course of business. The foundation for a business record must be laid by the keeper of the record or by some other qualified witness.
Reputation as to Character: Evidence of a person’s reputation for truth and veracity is an exception to the hearsay rule. (Note that there are restrictions other than hearsay on the admissibility of character evidence.)
Prior Testimony: Testimony given at a different proceeding, or in deposition, qualifies for his exception if (1) the testimony was given under oath; (2) the opposing party had an opportunity to cross examine the declarant; and (3) the declarant is not a possible witness in the trial.
Dying Declaration: A statement by a dying person that relates to the cause or circumstances of what the declarant believed to be impending death. For instance, “Karen just shot me.” Dying declarations are admissible only in homicide prosecutions or civil cases.
Statement Against Interest: A statement so contrary to the declarant’s pecuniary, proprietary, or penal interest that no reasonable person would have been made it unless it were true. For example, “I can’t believe I got away with robbing that store.” The declarant must not be a possible witness in the trial and other limitations may apply in criminal cases.
Catch-All Exception: Other hearsay statements may be admitted if their probative value outweighs the prejudice they may cause to the opposing party and/or if they contain other sufficient circumstantial guarantees of trustworthiness. The declarant must not be a possible witness in the trial.
2. Irrelevant
Evidence is irrelevant if it does not make any fact of consequence to the case more or less probable. Evidence can be irrelevant if it proves nothing or if it tends to prove something that does not matter.
PROPONENT: Please describe George’s personal hygiene.
OPPONENT: Objection, Your Honor, that information is irrelevant.
Response: Explain the relevance of the testimony.
3. Unfair prejudice
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Note that evidence cannot be excluded merely because it is prejudicial; by definition, all relevant evidence is prejudicial to one party or the other. Rather, the objection only obtains if the testimony has little probative value and it is unfairly prejudicial. The classic example is a graphic and upsetting photograph of an injured crime victim offered to prove some fact of slight relevance, such as the clothing that the victim was wearing. The availability of other means to establish the same facts is usually also considered by the court. Thus, if the prosecution can establish the type of clothing that was worn by the victim though the testimony of her neighbor (who saw her leave her apartment just prior to the murder), the court is less likely to allow the photograph.
PROPONENT: You’re a card-carrying member of the NRA, aren’t you, Mr. Peterson?
OPPONENT: Objection, Your Honor, the probative value of Mr. Peterson’s membership
in the NRA is outweighed by the prejudicial nature of that information.
Responses: Most judges are hesitant to exclude evidence on this basis. A measured explanation of the probative value of the testimony is the best response.
4. Improper character evidence generally
Character evidence is generally not admissible to prove that a person acted in conformity with his or her character. For example, a defendant’s past burglaries cannot be offered as proof of current negligence.
PROPONENT: This isn’t the first time you’ve been involved in a traffic accident, is it, Mr. Fisz?
OPPONENT: Objection, Your Honor, that is improper character evidence.
Responses: A criminal defendant may offer proof of good character, which the prosecution may then rebut. Also, past crimes and bad acts may be offered to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
a. Conviction of crime
The commission, and even the conviction, of past crimes is not admissible to prove current guilt.
The credibility of a witness who takes the stand and testifies however, may be impeached, on the basis of a prior criminal conviction, but only if the following requirements are satisfied: the crime must have been either a felony or one that involved dishonesty or false statement, regardless of punishment. With certain exceptions, the evidence is not admissible unless it occurred within the last ten years. Juvenile adjudications are generally not admissible.
The impeachment is generally limited to the fact of conviction, the name of the crime, and the sentence received. The details and events of the crime are generally inadmissible:
PROPONENT: Thirteen years ago you committed another robbery, didn’t you?
OPPONENT: Objection, Your Honor, that is improper character evidence bec ause
it occurred over ten years ago.
Responses: If the crime was not a felony the conviction may still be admissible if it involved dishonesty. If the conviction is more than ten years old it may still be admissible if the court determines that its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
b. Untruthfulness
The past acts of a person may not be offered as proof that he or she committed similar acts. Specific instances of conduct are admissible for the limited purpose of attacking or supporting credibility. A witness may therefore be cross examined concerning past bad acts only if they reflect upon his truthfulness or untruthfulness.
PROPONENT: You were audited by the IRS two years ago, weren’t you?
OPPONENT: Objection, that is improper character evidence.
PROPONENT: Your Honor, if I may, Ms. Alleman’s audit by the IRS is probative of her
truthfulness since she was forced to pay $10,000 in back taxes for
unreported income following that audit.
Responses: Explain the manner in which the witness’s past bad acts are probative of untruthfulness, as illustrated above.
c. Reputation
Reputation evidence is admissible only with regard to an individual’s character for truthfulness or untruthfulness. Moreover, evidence of a truthful character is admissible only after the character of the witness has been attacked.
ANSWER: Scott is known as a real trickster among his friends – someone no one
should trust.
OPPONENT: Objection, Your Honor. This is improper character evidence.
PROPONENT: May I respond?
THE COURT: Go ahead.
PROPONENT: Your Honor, this testimony, that Mr. Wallace is known amongst his friends
as an untrustworthy trickster, illustrates the defendant’s reputation for
truthfulness. As such, it is proper character evidence.
Responses: Explain the manner in which the reputation evidence is probative of truthfulness or untruthfulness.
5. Speculation or lack of personal knowledge
Witnesses (other than experts) must testify from personal knowledge, which is generally defined as sensory perception. A witness’s lack of personal knowledge may be obvious from the questioning, may be inherent in the testimony, or may be developed by questioning on voir dire.
PROPONENT: Where was the defendant at the time of the crime?
ANSWER: He must have been back at the bar by that time.
OPPONENT: Objection, Your Honor, the witness is speculating (or the witness lacks
of personal knowledge of the defendant’s whereabouts at that time).
Responses: Ask further questions that establish the witness’s personal knowledge. Witnesses are permitted to make reasonable estimates rationally based upon perception.
6. Improper lay opinion
Lay witnesses (nonexperts) are generally precluded from testifying as to opinions, conclusions, or inferences.
PROPONENT: How did the defendant look to you that night?
ANSWER: He looked like he was high on cocaine to me.
OPPONENT: Objection, Your Honor, improper lay opinion.
Responses: Lay witnesses may testify to opinions or inferences if they are rationally based upon the perception of the witness. Common lay opinions include estimates of speed, distance, values, height, time, duration, and temperature. Lay witnesses are also commonly allowed to testify as to the mood, sanity, demeanor, sobriety, or tone of voice of another person.
7. Authenticity
Exhibits must be authenticated before they may be admitted. Authenticity refers to adequate proof that the exhibit actually is what it seems or purports to be. Virtually all documents and tangible objects must be authenticated. (Recall that in mock trial, the authenticity of exhibits is often the subject of stipulations listed in the case file.) Since exhibits are authenticated by laying a foundation, objections may be raised on the ground of either authenticity or foundation. This subject is discussed in greater detail in Chapter 5 (“Foundations and Exhibits”).
PROPONENT: (To the court) At this time the Plaintiff moves Exhibit 2 into evidence.
OPPONENT: I object to authenticity. Counsel has not shown that this document was
in fact written by the witness,
Responses: Ask additional questions that establish authenticity.
8. Lack of foundation
Nearly all evidence, other than a witness’s direct observation of events, requires some sort of predicate foundation for admissibility. An objection to lack of foundation requires the judge to make a preliminary ruling as to the admissibility of the evidence.
The evidentiary foundations vary widely. For example, the foundation for the business records exception to the hearsay rule includes evidence that the records were made and kept in the ordinary course of business. The foundation for the introduction of certain scientific evidence requires the establishment of the chain of custody. The following list includes some, though by all means all, of the sorts of evidence that require special foundations for admissibility: voice identifications, telephone conversations, writings, business records, the existence of a privilege, dying declarations, photographs, scientific tests, expert and lay opinions, and many more. This subject is discussed in greater detail in Chapter 5 (“Foundations and Exhibits”).
PROPONENT: (To the court) At this time the Plaintiff moves Exhibit 2 into evidence.
THE COURT: Any objections?
OPPONENT: Yes, Your Honor, we object to authenticity. Counsel has not shown that
the knife is in substantially the same condition as when the witness
first examined it.
PROPONENT: I’ll lay the foundation, Your Honor.
THE COURT: Very well.
PROPONENT: Is this knife in the same condition as when you first examined it?
ANSWER: Other than the fact that the victim’s blood has been cleaned off, yes.
Responses: Ask additional questions that lay the necessary foundation, as illustrated above.