1. Mock Trial Modified by Dennis Gerl from Evidence PPT by John Ed-Bishop
OBJECTIONS
Mock Trial
Modified by Dennis Gerl from
Evidence PPT by John Ed-Bishop

2. Are You Ready to Rumble What is Special about Objections?
They are Adversarial
Plan Ahead
Change Strategies Quickly
Be Quick on Your Feet
Know the Rules

3. Why Object?
Prevents “Questionable” evidence or testimony to come into trial
Only Object if it will help your case
Interrupts opposing counsel’s “script” - - dangerous to do because you may appear rude

4. Why Would You Not Object?
Keep a Favorable Jury Impression
Do Not Want to Draw Jury’s Attention to Testimony
Testimony Helps your case
Lays foundation for your evidence
Introduces character evidence

5. What Objections are based on
Mock Trial Objections are based on the Rules of Civil Procedure and the Federal Rules of Evidence
Attorneys make Objections by applying general rules to specific questions, testimony and exhibits

6. How to Object Objection must be timely Rise and say, “Objection”
Object to the question before the answer
Object to the answer before the next question
Object to the document when used or offered
Rise and say, “Objection”
State the Rule (and grounds briefly)
Be prepared to argue
Accept court’s ruling gracefully

7. Sources of Objections Mock Trial Competition Rules Rules of Procedure
Federal Rules of Evidence (FRE)

8. Important Mock Trial Rules
Witnesses Bound by Statements Competition Rule 3
Unfair Extrapolation Competition Rule 4
No objections during Opening and Closing
Rule of Procedure 36
Only 2 Questions on Re-Cross and Direct - - limited to prior examination FRE 611(d); Rule of Procedure 40
Scope of Cross Not Limited by Direct FRE 611(b)
Clock stops when Objections are made Competition Rule 13.

9. Objection: Unfair Extrapolation
Competition Rule 4
Witnesses are bound by statements
Attorneys shall not ask questions for information outside the scope of the case materials or requesting unfair extrapolations on pivotal points
Witness may testify only to facts stated in or reasonably implied from their statement or fact situation.

10. Objection: Argumentative
Rule of Procedure 37 (1)
Opposing Counsel isn’t asking a question as much as he or she is making an argument or conclusion.

11. Objections Lack of Foundation
Rule 37 (2)
Prerequisite evidence has not been entered that would allow the current evidence to be presented.

12. Introducing Documents
Pre-mark for identification
Ask for permission to approach the bench. “Your Honor, may I approach the bench to show you what has been marked as Ex. ___?”
Show the presiding judge the marked exhibit
Show exhibit to opposing counsel
Ask permission to approach witness
“I now hand you what has been marked as Ex. ___ for identification.”
As witness “Would you you identify it please?” Witness answers with identification only.
“Your honor, we offer Exhibit ___ into evidence into evidence at this time. The authenticity of the exhibit has been stipulated.”
Court will look to or ask opposing counsel if there is an objection.
Opposing Counsel – “ No objection” or “yes I object because”
The Court: “Exhibit No. ___ is/is not admitted.”
The attorney may then proceed to ask questions.

13. Objection: Assumes Facts Not into Evidence
Rule of Procedure 37 (3)
Question contains information not yet in evidence.

14. Objection: Assumes facts not in evidence/ Calls for speculation
Rule of Procedure 37 (3)
Witness does not have first-hand knowledge of the fact they are testifying to
May also be a hearsay objection present Rule 802

15. Objection: Calls for a Narrative
Rule of Procedure 37 (4)
Question does not call for a specific answer

16. Objection: Non-responsive
Rule of Procedure 37 (5)
Witness is not answering the question being asked

17. Objection: Asked and Answered
Rule of Procedure 37(6) Repetition
This question has previously been asked by this attorney and answered by this witness.

18. Objection: Leading the Witness
FRE 611 (c)
A question on direct examination that suggests an answer.
This does not apply to cross examinations or examinations of experts
Be careful, Judges may be pretty lenient on this. Use only if blatant.

19. Objection: Beyond Scope
FRE 611 (d)
Applies only to re-direct, and re-cross
In mock trial Cross is not limited in scope FRE 611 (b)
Solicited testimony is not relevant to previous questioning of witness
For both re-direct and re-cross attorneys are limited to 2 questions

20. Objection: Relevance FRE 401 Evidence does not relate to the case
Be prepared to explain why

21. Objection: More Prejudicial Than Probative
FRE 401 and 403
Evidence presented whose “probative value is substantially outweighed by the danger of unfair prejudice,” etc.

22. Objection: Improper Character Evidence
FRE 404
Evidence of a person’s character or character trait is nor admissible to prove action on a particular occasion except:
Pertinent character trait of the accused
Pertinent character trait of a victim
Character of a witness under Rules 607 & 608
FRE 607 Impeachment
FRE 608 Character of witness
Opinion and reputation if (1) related to truthfulness or untruthfulness and (2) the character of the witness for truthfulness or untruthfulness has been attacked by opinion or reputation evidence or otherwise
Extrinsic evidence of character conduct not generally allowed.

23. Objection: Specific Instances of Conduct
FRE 608(b)
Specific Instances of prior conduct, other than conviction of a crime under FRE 609, may not be proved by extrinsic evidence, unless
If probative of truthfulness or untruthfulness then witness on cross can be asked
(1) concerning witnesses character for truthfulness or untruthfulness; or
(2) concerning the character or truthfulness or untruthfulness of another witness as to which character the witness being cross examined has testified.

24. Objection: Improper Lay Opinion
FRE 701
Generally lay witnesses cannot give opinion evidence unless it is:
(a) based on rational perception of the witness and
(b) is helpful to a clear understanding of the testimony.

25. Objection: Improper Expert Opinion
FRE 702, 703, and 704
Testimony that exceeds the expert’s field, or relies on data that such experts do not reasonably rely upon. FRE 703
Expert cannot give an opinion on guilt or innocence in a criminal trial. FRE 704

26. Objection: Hearsay Rule 801, 802
Statement made out of court being presented to assert the truth of the words in the statement.
Exceptions apply. Know them, your opponent will.

27. What is not Hearsay Rule 801
Witnesses Prior Statement - under certain conditions
If any witness testifies at trial and the testimony is different from what the witness previously said, the cross examining lawyer can bring out this inconsistency. FRE 801(d)(1)
Admission by a party opponent
A statement previously made by a party is admissible against that party when offered by the other side. FRE 801(d)(2)

28. Exceptions to Hearsay FRE 803
(1) Present sense impression
(2) Excited Utterance
(3) Then existing mental, emotional or physical conditions
(4) Statements made for purposes of medical diagnosis or treatment
Reputation as to Character

29. Hearsay within Hearsay
Hearsay included within hearsay is not excluded if each part of the combined statement conforms with an exception to the hearsay rule. FRE 805

30. Preparation
Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.
Sun-tzu, The Art of War. Strategic Assessments
Know the case
Identify Questionable Material
Yours and Your Opponents

31. Changing Your Strategy
"No battle plan survives its first contact with the enemy."
Practice alternate strategies and unfavorable rulings
Stick to Your Guns with Politeness and Courtesy
Give the Judge a chance to agree with you
Common Sense if Nothing Else
When you don’t have a argument, make one, or if appropriate withdraw the question. Consider saying “Thank you counsel, I’ll withdraw the question.”

32. Quick on Your Feet This is not an Evidence Exam Practice
You Snooze, You Lose
Practice
Listen and pay attention

33. Conclusion Know your case Know Questionable Material For Both Sides
Prepare Arguments ahead of time
Your objections
Responses to counter opponent’s objections
Know Rules of Evidence
Practice, Practice, Practice
You Can’t Win if You Don’t Fight