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OBJECTIONS! Why, How and When To Object Litigation Department Training Module -Part of ACCRA Training Module -Based on a CD Game -First time to be presented.

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Presentation on theme: "OBJECTIONS! Why, How and When To Object Litigation Department Training Module -Part of ACCRA Training Module -Based on a CD Game -First time to be presented."— Presentation transcript:

1 OBJECTIONS! Why, How and When To Object Litigation Department Training Module -Part of ACCRA Training Module -Based on a CD Game -First time to be presented in public - Lecture - CD/DVD - Quiz - Open forum

2 The Objection Phase Making objections is a difficult skill. The total amount of time between the end of an enemy attorney’s question and when a witness starts to answer – LESS THAN ONE SECOND! DIRECT EXAM (DX) CROSS-EX (CX) OBJECTION PHASE

3 Reasons for Objecting 1.Stop an enemy from hurting your case – PRINCIPAL REASON 2. Establish your record on appeal. (e.g. Admission of “privilege letter” over your objection) 3. Neutralize or oppose an improper statement. - “ungrateful partner” 4. Establish your presence or the other side of the coin (esp. Defendant). 5.Throw an enemy off balance. - loss of concentration/focus (importance of notes/tick marks)

4 Reasons for Not Objecting 1.Not to delay the trial 2.May give enemy attorney & witness more time to think 3.May suggest to the enemy how to ask a proper question 4.Answer may be favorable to you 5.Irrelevant questions & answers are not critical to your case 6.Objectionable questions (Formal but not Substantive) may be rephrased anyway

5 Style 1.SPEAK UP WITH AUTHORITY. Everybody (i.e., judge, enemy attorney, witness) should hear you. Shift or project the interruption. to the enemy (enemy attorney is asking objectionable questions; enemy witness is given objectionable answers).

6 2. STAND UP. Avoid the jumping bean style. Reserve the “standing objections” for the most damaging testimony. Certain judges require the lawyer to stand up whenever he speaks or objects.

7 3. NEVER SHOW PHONY INDIGNATION. 4.MAKE SPECIFIC OBJECTIONS. State one-word objections rather than giving a speech (unless really important). If there is more than one basis for the objection, state them.

8 Timing Timing is critical. If you object too soon, the judge would tell you this: If you object too long, the enemy attorney would have finished the question and the witness may have answered. Counsel, let the opposing counsel finish his question. Be seated!

9 If you fail to timely object to the question, MOVE TO STRIKE the answer. Disadvantages: 1. Everybody already heard the answer 2. Damage had been done 3. Low probability that the answer will be stricken off

10 Preferred Style attorney to finish his question and then OBJECT stating your objection/s. RAISE YOUR HAND (as if to stop the witness from answering) and STAND UP as soon as the question becomes or appears to be “objectionable”. WAIT for the enemy

11 Classification  APPLICABILITY – Used in either, both, or all Direct Examination (DX), Cross-Examination (CX), Re- direct Examination (RD), Re-cross-examination (RX)  NATURE – Formal or Substantive Formal – addresses the MANNER by which evidence is elicited – could be corrected by rephrasing the questions Substantive – addressed the UNDERLYING ADMISSIBILITY of the evidence  BASIS OR TARGET – Question-based (QB) or Answer-based (AB)

12 1.ARGUMENTATIVE  Formal objection  Used in both direct examination & cross-examination (DX/CX)  Only question-based (QB)  Links – Repetitive, Misleading

13  Signals Repetitive questions Insulting questions (on past sexual encounters and matters of a personal nature  Used when the enemy lawyer is impeaching his own witness  Assumes facts opposite/different from prior testimony Misleading

14 Objection, Your Honor, argumentative. State the specific objection… ARGUMENTATIVE Objection, Your Honor, opposing counsel is impeaching and arguing with his own witness. Objection, Your Honor, misleading.

15 Legal Basis ARGUMENTATIVE Repetitive and insulting questions Rule 132, Sec. 3 “It is the right of a witness: (1) To be protected from xxx improper or insulting questions, and from harsh or insulting demeanor.” Impeaching his own witness Rule 132, Sec. 12 “xxx the party producing a witness is not allowed to impeach his own credibility.” Assumes facts opposite/different from prior testimony Rules 132, Sec. 10 “A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is not allowed.”

16 2.BEST EVIDENCE  Substantive objection  Used in both direct examination & cross-examination (DX/CX)  Both question-based & answer-based (QB/AB)  Links – Hearsay, Speculative

17  Signal  Pertains primarily to writings and not physical objects, unless the physical objects contain writings  Know the exceptions to the Best Evidence Rule  Related to, but different from the, Parol Evidence Rule – oral testimony to contradict or vary the terms of a written contract What did it say?

18 Objection, Your Honor, this is not the best evidence of the contents of the writing. Produce the original. State the specific objection… BEST EVIDENCE Your Honor, I move to strike the witness’ answer on the ground that it violates the Best Evidence Rule.

19 Legal Basis BEST EVIDENCE Best Evidence RuleRule 130, Sec. 3 “When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself xxxx” Parol Evidence RuleRules 130, Sec. 9 “When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.”

20 3. QUESTIONS THAT CALL FOR CONCLUSIONS  Substantive objection  Used in direct examination (DX)  Both question-based & answer-based (QB/AB)  Link – Leading

21  Calls for an ultimate conclusion  Calls for an opinion by an incompetent witness Is he guilty? Was he negligent? Did he breach the contract? What do you think? Was he qualified? I believe that … In my opinion …

22 Objection, Your Honor, the question calls for a conclusion. State the specific objection… CONCLUSIONS Your Honor, I move to strike the answer on the ground that it is not a statement of fact but a conclusion.

23 General Rule – Opinion of a witness is inadmissible Rule 130, Sec. 48 “The opinion of a witness is not admissible xxxx” Exceptions – Expert witness, Ordinary witness (identity, handwriting, sanity, behavior, emotion, condition, appearance) Rule 130, Secs. 49 – 50 “The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.” “The opinion of a witness for which proper basis is given may be received in evidence regarding – (a) The identity of a person xxx; (b) A handwriting xxx; (c) The mental sanity of a person xxxx. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person.”

24 4.FACTS ASSUMED  Formal objection  Used in both direct examination & cross- examination (DX/CX)  Both question-based & answer-based (QB/AB)  Links – Leading, Misleading

25  Signals – Watch out for questions that: Are very long i.e. takes 10–15 seconds to ask Contain too much information Make assumptions Tends to advance the enemy’s case through the attorney  Also known as “assuming-facts-not-in-evidence”; also used as “no basis” or “lacks basis”  Could also be “misleading” if fact assumed misstates the evidence or misquotes the witness

26 Objection, Your Honor, the question assumes facts not in evidence. State the specific objection… FACTS ASSUMED Objection, Your Honor, the question is misleading and assumes facts contrary to the evidence that has preceded. Objection, Your Honor, I move to strike the answer because it is misleading and it is contradictory to what is stated in the document.

27 Legal Basis FACTS ASSUMED Definition of a misleading question – one which assumes as true a fact not yet testified, or contrary to that which he has previously stated Rule 132, Sec. 10, last par. “A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated xxxx”

28 5.HEARSAY  Substantive objection  Used in both direct examination & cross- examination (DX/CX)  Both question-based & answer-based (QB/AB)  Links – Best Evidence, Speculative  First of the two POWER OBJECTIONS

29  Guide/Test Question  If the answer is anything other than personal knowledge, it is HEARSAY.  If the information is from a 3 rd party or a document prepared by a 3 rd party, it is HEARSAY.  OBJECT – Other party has burden to prove exception How does the witness know that?

30 Objection, Your Honor, the question calls for a hearsay answer. State the specific objection… HEARSAY Your Honor, I move to strike the answer of the witness for being hearsay.

31 Legal Basis HEARSAY General Rule – a witness can testify only to those facts which he knows of his personal knowledge; derived from his personal perception Rule 130, Sec. 36 “A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception xxxx”

32 Exceptions – Dying declarations; Declarations against interest; Pedigree; Family reputation or pedigree; Res gestae; Entries in the course of official business & official records; Commercial lists; Learned treatises; Testimony in a former proceeding Rule 130, Sec Dying declaration (Sec. 37) 2.Declaration against interest (Sec. 38) 3.Act or declaration about pedigree (Sec. 39) 4.Family reputation or tradition regarding pedigree (Sec. 40) 5.Common reputation (Sec. 41)

33 6.Part of the res gestae (Sec. 42) 7.Entries in the course of business (Sec. 43) 8.Entries in official records (Sec. 44) 9.Commercial lists and the like (Sec. 45) 10.Learned treatises (Sec. 46) 11.Testimony or deposition at a former proceeding (Sec. 47)

34 6.IRRELEVANT OR IMMATERIAL  Substantive objection  Used in both direct examination & cross- examination (DX/CX)  Both question-based & answer-based (QB/AB)

35  Guide/Test Question  IRRELEVANT – any evidence not tending to establish the probability of the fact in issue  IMMATERIAL – does not relate to a fact critical to the outcome of this case  Watch out for the “I’ll link it up later” scam Will this resolve a key or material issue in this case?

36 Objection, Your Honor, irrelevant and immaterial. State the specific objection… IRRELEVANT OR IMMATERIAL Your Honor, I move to strike the answer of the witness for being irrelevant and immaterial.

37 Legal Basis IRRELEVANT OR IMMATERIAL Relevancy; collateral matters are disallowed Rule 128, Sec. 4 “Evidence must have such relation to the fact in issue as to induce belief in its existence or non-existence xxxx” Exception to collateral matters – tends in any reasonable degree to establish the probability of the fact in issue Rule 128, Sec. 4 “Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of a fact in issue.” Note:IS IT IN THE PLEADING? IS IT IN THE INFORMATION?

38 7.LEADING  Formal objection  Used in direct examination (DX)  Question-based (QB)

39  Signals – CONTRACTIONS in questions  Watch out for questions that: Suggest the answer Contain declarative statements and conclusions Isn’t? Isn’t it true that …? Isn’t it a fact …? Didn’t? Don’t? Shouldn’t? Couldn’t?

40 Objection, Your Honor, the question is leading. State the specific objection… LEADING

41 Legal Basis LEADING GENERAL RULE – Leading questions are not allowed Rule 132, Sec. 10 “A question which suggests to the witness the answer which the examining party desires is a leading question xxxx” EXCEPTIONS – During cross-examination; Preliminary matters; Difficulty in getting intelligible answers; Unwilling or hostile witness; Adverse party witness Rule 132, Sec. 10 “It is not allowed, except: (a) on cross- examination; (b) on preliminary matters; (c) when there is difficulty in getting direct and intelligible answers from xxx ignorant, child of tender years, or is of feeble mind, or a deaf-mute; (d) of an unwilling or hostile witness; (e) of a witness who is an adverse party xxxx”

42 8.MULTIPLE AND NARRATIVE  Formal objection  Used in both direct examination & cross-examination (DX/CX)  Question-based (QB)  Signal – the conjunction “AND”  Also covers Narratives

43 Objection, Your Honor, the question calls for multiple answers. State the specific objection… MULTIPLE AND NARRATIVE Objection, Your Honor, opposing counsel is asking for a narrative and that deprives me of the opportunity to listen and object to the individual questions and answers.

44 Legal Basis MULTIPLE AND NARRATIVE Questions should not be confusing to witness & to the court Rule 132, Sec. 3 “However, it is the right of a witness : (1) to be protected from xxx improper xxx questions xxxx” Depriving the adverse party of the opportunity to object Rule 132, Sec. 36 “Objection to a question propounded in the course of oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent.”

45 9.PRIVILEGE  Substantive objection  Used in both direct examination & cross-examination (DX/CX)  Both question-based & answer- based (QB/AB)  Link - Hearsay

46  Watch out for any CONFIDENTIAL RELATIONSHIP i.e. Husband-wife; Lawyer- client; Physician-patient; Priest-penitent; Public officer  Second of two POWER OBJECTIONS Implications of failure to object and failure to protect your client’s privilege goes on beyond the hearing

47 Objection, Your Honor, the subject matter is privileged. State the specific objection… PRIVILEGE Your Honor, I move that the answer be stricken because it is privileged.

48 Marital disqualification Rule 130, Sec. 22 “During their marriage, neither the husband nor spouse may testify for or against the other without the consent of the affected spouse xxxx” Privileged communications Rule 130, Sec. 24 “(a) The husband or the wife, during the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other xxxx” “(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment xxxx” “(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity xxx which would blacken the reputation of the patient” “(d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs” “(e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. “

49 Newsman’s privilege Rep. Act No. 53, Sec. 1, as amended by Rep. Act No "Sec. 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news-report or information appearing in said publication which was related in confidence to such publisher, editor or reporter unless the Court or a House or committee of Congress finds that such revelation is demanded by the security of the State." Informant’s privilege People v. Capulong, 160 SCRA 533 “The non-presentation of Estacio as witness is not fatal to the prosecution's case. His testimony would be merely corroborative and cumulative (See People v. Cerelegia, 147 SCRA 538).” Right against self- incrimination Const., Art. III, Sec. 17 “No person shall be compelled to be a witness against himself.”

50 10.REPETITIVE  Formal objection  Used in both direct examination & cross-examination (DX/CX)  Question-based (QB)  Link - Argumentative

51  Signal – the question is similar to prior questions  Be cautious of favorable responses (will be asked again to be repeated) & unfavorable responses (question will be repeated for witness to correct the answer)

52 Objection, Your Honor, the question has been asked and answered. State the specific objection… REPETITIVE Objection, Your Honor, the question is repetitve.

53 Legal Basis REPETITIVE Right of a witness to be protected from repetitive questions Rule 132, Sec. 3 “SECTION 3.Rights and obligations of a witness. — A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2) Not to be detained longer than the interests of justice require; (3) Not to be examined except only as to matters pertinent to the issue; (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (5) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense.”

54 11.SPECULATIVE  Substantive objection  Used in direct examination (DX)  Both question-based & answer- based (QB/AB)  Links – Hearsay, Conclusion

55  Guide/Test Question  Signals – the words “would” and “should” and questions like that ask a witness to guess about an information that the witness does not personally possess  OK to ESTIMATE but must have personal information How does the witness know that? What was X’s motive? What was in X’s mind? Is it possible that …?

56 Objection, Your Honor, the question is speculative. State the specific objection… SPECULATIVE Objection, Your Honor, the witness is being asked to speculate. Objection, Your Honor, I move to strike the witness’ answer for being speculative.

57 Legal Basis SPECULATIVE GENERAL RULE – witness testifies only on matters of personal knowledge Rule 130, Sec. 36 “A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception xxxx” EXCEPTIONS – when opinions of witnesses are allowed Rule 130, Secs. 48 – 50 “The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.” “The opinion of a witness for which proper basis is given may be received in evidence regarding – (a) The identity of a person xxx; (b) A handwriting xxx; (c) The mental sanity of a person xxxx. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person.”

58 12.VAGUE  Formal objection  Used in both direct examination & cross-examination (DX/CX)  Only question-based (QB)

59  Signals – Watch out for questions that: Are very long i.e. takes 10–15 seconds to ask Call for information that is very non-specific You don’t understand

60 Objection, Your Honor, the question is vague. State the specific objection… VAGUE

61 Legal Basis VAGUE Right of a witness to be protected from vague questions Rule 132, Sec. 3 “xxx To be protected from xxx improper xxx questions xxxx” RelevancyRule 128, Secs. 3-4 “Evidence is admissible when it is relevant to the issue xxxx” “Evidence must have such relation to the fact in issue as to induce belief in its existence or non-existence xxxx”

62 13.WITNESS IS INCOMPETENT  Substantive objection  Used in both direct examination & cross-examination (DX/CX)  Both question-based & answer- based (QB/AB)  Links – Hearsay; Speculative

63 Witness has no personal knowledge or witness was not pre- qualified as an expert witness

64 Objection, Your Honor, the witness is incompetent. State the specific objection… WITNESS IS INCOMPETENT Your Honor, I move to strike the answer of the witness on the ground that he is incompetent to testify on such matters.

65 Legal Basis WITNESS IS INCOMPETENT Witness may only testify on matters of personal knowledge Rule 130, Sec. 36 “A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception xxxx” Admissibility of relevant evidence Rule 128, Sec. 3 “Evidence is admissible when it is relevant to the issue xxxx”

66 14.INSUFFICIENT AUTHENTICATION/NO PROPER/ IMPROPER FOUNDATION  Substantive objection  Used in both direct examination & cross-examination (DX/CX)  Both question-based & answer- based (QB/AB)

67  The document has not been identified, identified and/or authenticated.

68 Objection, Your Honor, there has been no prior authentication of the document. State the specific objection… INSUFFICIENT AUTHENTICATION/ NO PROPER/ IMPROPER FOUNDATION Objection, Your Honor, there has been no proof of who executed this document. Objection, Your Honor, there is no proper foundation for this exhibit.

69 Your Honor, I move to strike the answer of the witness on the ground that there has been no prior authentication of, or foundation for, the document upon which it is based.

70 Legal Basis INSUFFICIENT AUTHENTICATION/ NO PROPER/ IMPROPER FOUNDATION Classes of documents Rule 132, Sec. 19 “For the purpose of their presentation in evidence, documents are either public or private xxxx” Private documents Rule 132, Secs “xxx its due execution and authenticity must be proved either: (a) by anyone who saw the document executed or written; or (b) by evidence of the genuineness of the signature or handwriting of the maker xxxx” “xxx more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion xxxx” “xxx handwriting xxx may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of the person xxx comparision xxx with writing admitted or treated as genuine by [adverse] party xxxx”

71 Public documents Rule 132, Secs “Documents consisting of entries in public records xxx are prima facie evidence of the facts therein stated xxxx” “The record of public documents xxx may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has custody xxxx” “xxx attestation must state, in substance, that the copy is a correct copy of the original or a specific part thereof xxx must be under the official seal of the attesting officer xxx or xxx court. “Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept xxxx”

72 15. BEYOND THE SCOPE OF DIRECT  Substantive objection  Used in cross-examination (CX)  Only question-based (QB)  Link - Leading

73  Signals – Watch out for questions that: Contain statements that were not covered during the direct examination Make your witness as the enemy attorney’s own witness

74 Objection, Your Honor, this is beyond the scope of the direct. State the specific objection… BEYOND THE SCOPE OF DIRECT Objection, Your Honor, this matter was not covered during the direct examination.

75 Legal Basis BEYOND THE SCOPE OF DIRECT English Rule (for civil cases) – CX to elicit all important facts bearing upon the issue i.e. COVERED by the DX and RELATED to the area covered by the DX Rule 132, Sec. 6; “xxx witness may be cross-examined by the adverse party as to any matter stated in the direct xxx or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit important facts bearing upon the issue.” Gonzales v. Bautista [(CA) 52 O.G (1956)]; Capitol Subd., Inc. v. Prov. of Negros Occidental [(SC) 52 O.G (1956)]

76 American Rule – (for criminal cases & hostile witnesses) – CX only in the area COVERED by the DX; CX limited to the DX of the hostile witness Rule 115, Section 1(d); “To testify as a witness in his own behalf but subject to cross- examination on matters covered by direct examination xxxx” Rule 132, Secs ; “xxx except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense.” “The unwilling or hostile witness xxx may also be xxx cross- examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief.”

77 16.IMPROPER FOR RE-DIRECT & RE-CROSS  Substantive objection  Used in re-direct examination & re-cross-examination (RD/RX)  Only question-based (QB)

78  Questions pertain to matters which the witness did not testify on during his cross-examination and/or re-direct examination

79 Objection, Your Honor, this is beyond the scope of the re-direct examination. State the specific objection… IMPROPER FOR RE-DIRECT/ RE-CROSS Objection, Your Honor, this matter was not covered during the cross- examination.

80 Legal Basis IMPROPER FOR RE-DIRECT/ RE-CROSS Limited scope of re- direct examination & re-cross examination Rule 132, Secs. 7-8 “After the cross-examination xxx he may be re- examined xxx to explain or supplement his answers given during cross-examination xxxx” “Upon the conclusion of the re-direct, xxx may recross-examine the witness on matters stated in the re-direct xxxx”

81 17.IMPROPER CHARACTERIZATION  Substantive objection  Used in direct examination & cross- examination (DX/CX)  Both question-based & answer- based (QB/AB)  Links – Argumentative, Conclusion

82  Signal – Questions & answers that contain SLANTED ADJECTIVES “negligent driver”, “malicious thief”, “rescinded contract”

83 Objection, Your Honor, I object to the improper characterization of … State the specific objection… IMPROPER CHARACTERIZATION Your Honor, I move that the answer be stricken for being an improper characterization.

84 Legal Basis IMPROPER CHARACTERIZATION Rights of a witness Rule 132, Sec. 3 “xxx To be protected from xxx insulting questions, and from harsh or insulting demeanor xxxx” Opinion rule Rule 130, Secs “The opinion of a witness is not admissible xxx” “The opinion of a witness for which proper basis is given may be received in evidence regarding – (a) The identity of a person xxx; (b) A handwriting xxx; (c) The mental sanity of a person xxxx. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person.”

85 18.NON-RESPONSIVE TO THE QUESTION  Formal objection  Used in direct examination & cross-examination (DX/CX)  Only answer-based (AB)  Link – Irrelevant or Immaterial

86  Answer is not related to/different from the question  Answer does not correspond to the question asked

87 State the specific objection… NON-RESPONSIVE TO THE QUESTION Your Honor, I move that the answer be stricken for not being responsive to the question.

88 Legal Basis NON-RESPONSIVE TO THE QUESTION Relevancy Rule 128, Secs. 3-4 “Evidence is admissible when it is relevant to the issue and is not excluded by the law or these Rules.” “Evidence must have such a relation to the fact in issue as to induce its existence or non-existence.”

89 19.IMPROPER MODE/ MANNER OF QUESTIONING  Formal objection  Used in direct examination & cross-examination (DX/CX)  Only question-based (QB)  Link – Argumentative

90  Signals DEMEANOR of enemy attorney Shouting, pounding the table, getting too close to the witness TONE of enemy attorney Loud, sarcastic INSULTING WORDS in questions and snide remarks or comments

91 Objection, Your Honor, the opposing counsel is badgering my witness. State the specific objection… IMPROPER MODE/ MANNER OF QUESTIONING

92 Legal Basis IMPROPER MODE/ MANNER OF QUESTIONING Rights of a witness Rule 132, Sec. 3 “xxx To be protected from xxx improper or insulting questions, and from harsh or insulting demeanor xxxx”

93 Mnemonics for the BIG 12 A B CArgumentative, Best Evidence, Conclusion, F H I L MFacts Assumed, Hearsay, Irrelevant/ Immaterial, Leading, Multiple R S V PRepetitve, Speculative, Vague, Privilege ABC FHILM RSVP

94 Mnemonics for the Plus 7 (the 2 nd ABC …) A B C Authentication (Insufficient), Beyond The Scope (of DX; Improper for RD/RC), Characterization (Improper) I N Q Incompetent Witness, Non-Responsive To The Question, Questioning (Improper Mode/Manner) ABC INQ


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