Trial advocacy workshop Objections Trial 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 Object Stand up to make your objection. Say: “Objection, your Honor. The question calls for hearsay.” 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. Address the judge, when making and arguing the objection. Do not look at opposing counsel when making and arguing the objection. 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”. 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 Objections Lack 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 Objections Improper 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 OR 2. the testimony is NOT helpful to the jury in deciding the case

Substantive Objections Relevance 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 Objections More 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 Objections Hearsay 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 & Exceptions There 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 Remember Prepare ahead of time, anticipating objectionable evidence and preparing arguments for objections. Know the evidentiary rules that are going to apply to your trial. Prepare yourself to think on your feet; you will face an unexpected objection.