Common Objections Flashcards
confusing question in that it is capable of being understood in more than one sense
AMBIGUOUS
(1) counsel’s question is really argumentative to the jury in guise of a question (e.g. Counsel summarizes facts, states conclusions, and
demands witness agree with the conclusion) or (2) excessive quibbling with witness.
ARGUMENTATIVE
Unfair to allow counsel to emphasize evidence
through repetition. Greater leeway permitted on cross-examination, but be especially ready to make this objection on re-direct.
ASKED AND ANSWERED
ASSUMES FACTS NOT IN EVIDENCE
Fact not testified to contained in
question.
AUTHENTICATION LACKING
Proof must be offered that the exhibit is in
fact what it claimed to be.
If rule applies, original document must be offered or its absence accounted for. If contents of
document are to be proved, rule usually applies.
BEST EVIDENCE RULE/ORIGINAL DOCUMENT RULE
Question unrelated to preceding examination by opposing counsel, or to credibility.
(Common appropriate response on cross-exam, “Your honor, the question goes
to credibility.”)
BEYOND THE SCOPE (OF DIRECT, CROSS, etc.)
Improper to bolster or promote the credibility of a witness before that credibility is attacked.
BOLSTERING
More than one question is contained in counsel’s question; answer could be misunderstood.
COMPOUND
Except for an expert, witness must testify to facts within personal knowledge, conclusions are for the jury and counsel during closing arguments.
CONCLUSION
Unfamiliar words, disjointed phrases, or confuses facts or evidence.
CONFUSING
Opposing counsel is making a statement instead
of asking a question.
COUNSEL TESTIFYING
Judge has discretion to control repetitive evidence.
Repeated presentation of the same evidence by exhibits or by more witness is unfair and wastes time.
CUMULATIVE
Failure to lay proper predicate for testimony or
exhibit (example: offer of “recorded recollection” without showing memory failure). NOTE: objection may be found to be “too general” to preserve the
objection for appeal, so if overruled, be more specific as to what the foundation
lacks.
FOUNDATION LACKING
The answer would elicit hearsay, and no exception
has been shown.
HEARSAY (question)
The question did not call for hearsay but the witness gave it anyway. Consider Motion to Strike and requesting judge to instruct jury to
disregard the response.
HEARSAY (answer)
Use only when you know the question is improper, but cannot think of the specific basis for the question. This is better than failing to make any objection, as the judge may know it was
improper question and sustain, but it cannot be relied upon to preserve the objection for appeal.
IMPROPER QUESTION or IMPROPER FORM
The question or response has characterized a person or conduct with unwarranted suggestive, argumentative, or impertinent language.
IMPROPER CHARACTERIZATION
Methods of impeachment are limited and
specific.
IMPROPER IMPEACHMENT
Lack of qualification such as oath, or mental
capacity. Also applies if judge or juror is called as a witness. Counsel should be specific as to the incompetency.
INCOMPETENT WITNESS
Would not tend to prove or disprove a material fact. Motion to Strike may be appropriate.
IRRELEVANT
Form of question tends to suggest answer.
LEADING
Counsel’s question misstates prior testimony of witness. Similar to objection based on assuming fact not in evidence.
MISQUOTING WITNESS or MISSTATING EVIDENCE
Question is so broad or covers such a large time period it would allow witness to ramble and possibly present hearsay or other inadmissible evidence before a specific objection could be made. Judge has broad discretion in this matter.
NARRATIVE
Expert witness has not been qualified as such, or the testimony of a lay person would be an opinion, which is beyond the scope permitted by the
rules.
OPINION
Object, ask to approach the bench, and then argue that the probative value of the evidence substantially outweighed by the danger of unfair prejudice. May apply to exhibits as well as
testimony.
PREJUDICE OUTWEIGHS PROBATIVE VALUE
Answer would violate valid privilege (lawyer – client, husband – wife, clergy, etc…).
PRIVILEGED
Question call for conjecture; allows witness who lacks personal knowledge to guess.
SPECULATION
Answer includes testimony not called for by the
question. Especially applicable to voluntary response by a hostile witness.
NOTE: an objection based solely on this found is generally deemed appropriate only if made by the examining attorney. Therefore, opposing counsel should try to find some additional basis for the objection.
UNRESPONSIVE
