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
1.
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 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
1. 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.