Evidence - Objections

Question 1

At what points in trial can you make objections?

Answer 1

ALL THE TIME.

Question 2

What are the four types of objections (in the most global sense) you can make during examinations?

Answer 2

Objections to questions; objections to answers; objections to exhibits; and objections to the judge’s conduct.

Question 3

What are the two types of objections you can make to questions?

Answer 3

Form objections and substance objections.

Question 4

What is the difference between form and substance objections?

Answer 4

With a form objection, you object to the way a question was asked. With a substance objection, you object to the question calling for an answer that violates the rules of evidence.

Question 5

What should you always do when you object to an answer?

Answer 5

Move to strike the answer from the record and have the judge instruct the jury to disregard the answer.

Question 6

What is the most frequent and most important way to object to exhibits?

Answer 6

Foundation objections. The exhibit isn’t properly identified or authenticated.

Question 7

List reasons to object, ordered from high- to low-value.

Answer 7

1. Make a record
2. Preserve error
3. Prevent testimony
4. Show passion
5. Protect your witness
6. Deter opposing witness
7. Sponsorship costs
8. Break opponent’s rhythm

Question 8

What are good reasons to NOT object?

Answer 8

1. Opposing counsel is ineffective
2. An opposing witness is ineffective
3. You want the hearsay in evidence
4. You want the witness to “open the door”
5. Your objection would highlight the evidence
6. Losing the objection gives opposing counsel greater latitude

Question 9

What are BAD reasons to not object?

Answer 9

Not knowing the right objection or not wanting to make the judge mad.

Question 10

What are catastrophic failures to object?

Answer 10

• jury charge error
• expert witness conclusion that will be afforded significant authority
• inadmissible hearsay on critical area
• violations of rights
• improper witness testimony

Question 11

What are procedural problems (re: fair trial)?

Answer 11

• violations of the Rule (sequestration)
• discovery violations
• notice violations
• juror misconduct

Question 12

What are ways the trial judge can fix issues via objections?

Answer 12

• provide limiting instructions
• reconsider prior rulings
• instruct a party to redact portions of an exhibit
• grant relief (e.g., additional preemptory strikes)

Question 13

List 7 particularly important objections.

Answer 13

• Hearsay
• Lack of personal knowledge
• Assumes facts not in evidence
• Calls for speculation
• Leading
• Relevance
• 403

Question 14

Describe the hearsay objection.

Answer 14

The witness answer contains out of court statements offered for the truth of the matter asserted.

Question 15

What are the hearsay dangers?

Answer 15

Misperception, ambiguity, faulty memory, insincerity.

Question 16

Give some examples of questions that call for hearsay.

Answer 16

• “What did she tell you?”
• “What did you learn after talking with…”
• “What was written in the report?”

Question 17

Describe the lack of personal knowledge objection.

Answer 17

The witness did not actually perceive what they are going to testify about; like a more extreme issue with the misperception hearsay danger.

Question 18

Give examples of questions that call for answers where the witness lacks personal knowledge.

Answer 18

• “After you left, what did [person] do?”
• “What did [person] do once you [did thing]?”

Question 19

Describe the relevance objection.

Answer 19

The question and/or answer pertains to a matter the jury isn’t being asked to resolve.

Question 20

Describe the leading objection.

Answer 20

The lawyer gives the testimony and asks the witness to agree.

Question 21

Describe the objection to assuming facts not in evidence.

Answer 21

The question rests on the presumption of a fact which has not yet been established.

Question 22

Give an example of a question that assumes facts not in evidence.

Answer 22

• After the defendant confessed to the cop (who has not testified yet), what did you do?

Question 23

Describe the 403 objection.

Answer 23

The prejudicial value of the question or answer substantially outweighs its probative value.

Question 24

How are 403 objections often resolved?

Answer 24

Bench conference. Mini-hearing on prejudicial effect and probative value.

Question 25

Describe the objection that a question calls for speculation.

Answer 25

The witness is asked to opine on another person’s state of mind, their thought processes, or what the other person would have done.

Question 26

Give an example of a question that calls for speculation.

Answer 26

• Why did [person] do [thing]?

Question 27

Describe jinxes, hexes, and curses and how often you should use them. (kill me).

Answer 27

Jinx - irritating; use judiciously
Hexes - cause serious inconvenience; almost always use
Curses - powerful; use always

Question 28

Almost all [form]/[substance] objections are jinxes.

Answer 28

Form.

Question 29

List some jinxes.

Answer 29

Leading, asked/answered, argumentative.

Question 30

List some hexes.

Answer 30

Hearsay, lack of personal knowledge, 403.

Question 31

List some curses.

Answer 31

Foundation objections and privilege objections.

Question 32

List 4 different ways to deliver objections.

Answer 32

1. Simple and direct
2. Politely apologetic
3. Forceful/indignant
4. Nonverbal

Question 33

What does a simple and direct objection sound like and when do you use it?

Answer 33

“Objection - leading.” Use at the beginning of trial and in hearings.

Question 34

What does a politely apologetic objection sound like and when do you use it?

Answer 34

“Your honor, sorry to interrupt, can we not admit hearsay?” Very casual and really only older lawyers can get away with it. They use it to not appear obstructionist.

Question 35

What does a forceful/indignant objection sound like and when do you use it?

Answer 35

“Objection! Counsel knows this is improper!” Only use when counsel is straying from a ruling from the judge.

Question 36

How does a nonverbal objection work and when do you use it?

Answer 36

Put your hand up while a witness is testifying. It will cut them off before they say anything damning.

Question 37

What should you do when the judge says “move along?”

Answer 37

Get that ruling.

Question 38

How should you respond to a sustained (lost) objection?

Answer 38

Don’t say “I’ll move along.” It admits fault. Instead, rephrase the question or ask the witness to avoid violating rules.

Question 39

How should you respond to an overruled (won) objection?

Answer 39

Repeat the question DELIBERATELY and WITH IMPUNITY. Because of availability bias, jurors will listen attentively on a controversial topic.

Question 40

What are the three high-level purposes of objecting?

Answer 40

1. Prevention - control info the fact finder can consider
2. Protection - control opposing counsel’s conduct
3. Preservation - preserve error for appeal