ObjectionsTrial advocacy workshop

General Information on Objections•They are adversarial.

•You must plan ahead.

•You must be prepared to change strategies quickly.

•You must be quick on your feet.

•You must know the Code of Evidence.

What is the purpose of objecting?•Prevents “questionable” evidence or

testimony from entering the record.

•Interrupts opposing counsel’s script and flow.

•Breaks the flow of testimony and wakes up the jury.

Why NOT to object?• In order to keep a favorable impression with

the jury.

•You don’t want to draw the jury’s attention to testimony that doesn’t help your case.

•When opposing counsel is eliciting testimony that will actually help your case.

Lays a foundation for your case. Introduces character evidence.

How to Object1. Stand up to make your objection.

2. Say: “Objection, your Honor. The question calls for hearsay.”

3. Sometimes you may want to ask for a sidebar. This means that you will argue the objection outside the hearing of the jury.

- Say: “Objection, your Honor. I request a sidebar. Then state objection.

4. Address the judge, when making and arguing the objection.

5. Do not look at opposing counsel when making and arguing the objection.

6. After opposing counsel answers your objection, you will ask the judge for permission to respond.

- Form: “May I respond, your Honor?” or “Brief Reply, Your Honor”.

7. Remain standing until the judge makes his ruling.

Types of Objections

1. Form Objections.- This type of objection attacks the

way the question is asked by opposing counsel.

2. Substantive Objections- This type of objection attacks the

answer that opposing counsel is attempting to elicit from the witness.

Form Objections• Leading: a question that suggests an answer to the

witness▫ If the witness can answer the question with a yes or a

no, the question is leading.▫ Leading questions are allowed on cross, not on direct

• Narrative: a question that is so open-ended, it gives no indication of what the witness might say

• Assumes Facts: when opposing counsel incorporates a fact into the question, to which the witness has not testified▫ Ex: “When did you stop beating your wife?”

Form Objections• Compound Question: when the question asks for

more than one thing▫ Ex: “Was it rainy and cloudy on that day?”

• Asked and Answered: when opposing counsel repeatedly asks the witness the same question, after having received an answer▫ This objection is valid only if THAT attorney has asked

THAT witness the same question

Form Objections• Speculation: asking the witness something clearly

beyond the witness’ ability to answer▫ Witness does not have firsthand knowledge of the

fact they are testifying to – they didn’t hear, say, or see it themselves.

▫ Ex: “Where did Johnny go after he left your house?”

• Argumentative: is not necessarily arguing with the witness, but is often times arguing a point to the jury▫ Ex: After the witness has testified that the car is

blue, opposing counsel asks: “The car wasn’t blue, it was red, wasn’t it?”

Substantive ObjectionsLack of Foundation

LCE/FRE 602, 901(a)

The prerequisite evidence has not been entered that would allow the current evidence to be presented.

Often used when opposing counsel is trying to enter an exhibit into evidence.

Two fundamental ways to determine if there is a lack of foundation: 1. Does the witness have personal knowledge of the

facts/exhibit in order to testify about it? 2. Is the exhibit authentic? If the answer is NO for either of these questions, there is a lack

of foundation.

Substantive ObjectionsImproper Lay Opinion

LCE/FRE 701

Lay witness is a person who has not been qualified as an expert by the court

A Lay witness gives an improper lay opinion when:1. the testimony is NOT rationally related to the

personal knowledge they have of the facts OR2. the testimony is NOT helpful to the jury in

deciding the case

Substantive ObjectionsRelevance

• LCE/FRE 401

• Evidence that does not relate to the case; and is not helpful in determining the ultimate issue.

• Test to determine relevance: “How is this evidence going to help the jury decide this case?”

• Important: when objecting to relevance, you will almost always request a sidebar.

Substantive ObjectionsMore Prejudicial Than Probative

LCE/FRE 401, 403

This objection also relates to the relevance of evidence.

Balancing Test: Is the evidence’s probative value greatly outweighed by its unfair prejudice?Here, the evidence is relevant, but you want the evidence

excluded anyways due to the danger of unfair prejudice, confusion of the issues or misleading of the jury.

This objection is a “fall-back”, since all evidence is unfavorable to one side or another.

Common ObjectionsHearsay

LCE/FRE 801

Arguably the hardest objection to recognize!

Hearsay: a statement, made outside of court, being offered for the truth of the matter.

“Truth of the matter asserted”: is the statement being offered to prove what is said in the statement?

Ex: Witness testifies “Seth told me he saw John kill Sarah”. The truth of the matter asserted is that John killed Sarah.

Not only testimony, but also writings/documents can be hearsay

Hearsay Exclusions & ExceptionsThere are many hearsay exceptions – know them!!

Hearsay Exclusions: these are statements that sound like hearsay, but are not treated as such by the LCE/FRE LCE/FRE: 801(d): 2 Main Exceptions

Prior Statements by a witness Admission by a party-opponent

Hearsay Exceptions: these statements are hearsay, but may fall under any one of many exceptions LCE/FRE 803: these exceptions apply regardless of whether the

declarant is available to be called as a witness LCE/FRE 804: these exceptions apply ONLY IF the declarant is

“unavailable”

Confrontation Clause• Applies in criminal cases

• The 6th A. of the U.S. Constitution gives an accused the right to confront his/her accuser

• If opposing counsel is eliciting testimony that the witness heard from someone else, this may implicate the Confrontation Clause

• Ex: Witness testifies: “Seth told me that John killed Sarah”. Seth is the person accusing John, the defendant, of killing Sarah. Since Seth is not in court, John has not had the ability to “confront”, (aka cross-examine) his accuser.

Criminal History• LCE 609.1

• In a criminal case, every witness subjects himself to an examination of his history of criminal convictions.

• Only Convictions.

• Normally only the fact of the conviction, the name of the offense, the date, and the sentence imposed are admissible.

• Details may be admissible if the witness denies the conviction, the witness opens the door or it is more probative than prejudicial.

Important Things to Remember1. Prepare ahead of time, anticipating

objectionable evidence and preparing arguments for objections.

2. Know the evidentiary rules that are going to apply to your trial.

1. Prepare yourself to think on your feet; you will face an unexpected objection.