Objections Flashcards
Unfair Extrapolation
Rule (4) - information is not contained in the witness statement. Extrapolation is not neutral and therefore is unfair. Information is inconsistent with statement and materially affects testimony or substantive issue in the case - Response (Information is reasonable inference b/c it is consistent with the statement and does not materially affect the testimony or any substantive issue in the case.
Argumentative
Rule 38(1) - question is sarcastic, nasty, caustic, or makes an unfair conclusion - Response (the question merely points out the improbability of the witness’ position)
Lack of Proper Foundation
Rule 38(2) - Must provide context - Response (Witness has already laid foundation OR I will proceed to lay foundation)
Assuming Facts Not in Evidence
Rule 38(3) - Cannot ask questions that include assumptions or unproven facts i.e. “When was the crime committed at the ESE house? (No crime has been committed yet)” - Response (Witness has already testified to these facts. Facts have been previously stipulated (cite stipulations).
Question Calls for Narrative
38(4) - Cannot ask general or broad questions. Questions must ask for a specific answer. Response - question calls for this specific answer OR “your honor, I will rephrase”
Non-Responsive
38(5) - Witness has not responded specifically to the question asked or given a narrative response - Response - A witnesses entitled to give an explanation of their answers. NOT required to simply give a yes or no answer
Repetition
38(6) - Asked and answered. Witness has already testified to these facts. Opposing counsel has already asked this question. (Note, this does not apply between direct and cross, it “resets”) - Response - Witness has not answered this question yet. The question calls for new information not in previous testimony.
ReDirect and ReCross limited to 2 questions within scope
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611(d) - redirect and recross are only allowed two questions.
Relevance
401, 402 - Irrelevant evidence is not admissible. Evidence is irrelevant if it does not MAKE A MATERIAL FACT MORE OR LESS LIKELY i.e. info does not tend to make the issue of (blank) more or less likely - Response - Identify how fact makes material issue more or less likely; identify fact that the question tends to establish i.e. credibility, guilt or innocence, specific charge or background/foundation
Unfair Prejudice, Waste of Time
403 - Probative (truth proving) value is outweighed by prejudiced effect (i.e., confuses the issues, is misleading, causes undue delay, is cumulative). Information is so prejudicial that it should not be admitted because relevance is minimal - Response - All evidence is prejudicial to the adverse party; evidence is relevant; relevant evidence is admissible. PROBATIVE VALUE OUTWEIGHS ANY PREJUDICE (counsel can deal with issues of prejudice on cross/re-direct/closing)
Improper Character Evidence
404, 405, 608 - Evidence of a person’s character is not admissible to prove an action on a specific occasion (Rule 404(a) ) - Response - Relevant character traits offered by the accused or prosecution to rebut are admissible (Rule 404(a) 1) OR Character evidence is admissible if it goes to character for untruthfulness. Character evidence for truthfulness is admissible if credibility has been at attacked (rule 608)
Lack of Personal Knowledge
602 - Witness is speculating; has no first hand knowledge of the information - Response - Witness has first hand knowledge (Explain citing previous testimony). Witness may form opinions RATIONALLY BASED ON THEIR PERCEPTIONS (rule 701) OR offer to lay foundation (ask questions which explain how witness has personal knowledge)
Leading
611{c} - Question suggests the answer (not allowed for direct exam. only) - response - Answer is not implied, witness may answer yes or no.
Outside the Scope of Cross/ReDirect
611(d) - Questions on redirect or recross are limited to the scope of cross/redirect - response - point out how questions relations to an issue raised in prior exam or how prior exam “opened the door” to this issue
Improper Lay Witness Opinion
701 - “Calls for an opinion” “witness is giving an opinion” Witness is not an expert and therefore cannot give an opinion - response - witness can testify to opinions or inferences (1) RATIONALLY BASED ON WITNESS PERCEPTION and (2) helpful to decide material facts (relevant)
