Objections

An attorney can object any time the opposing attorneys have violated the rules of evidence.

The attorney wishing to object should stand up and do so at the time of the violation.

When an objection is made, the judge may ask the reason for it. Then the judge may turn to the attorney whose question or action is being objected to, and that attorney usually will have a chance to explain why the judge should not accept the objection. The judge will then decide whether a question or answer must be discarded because it has violated a rule of evidence or whether to allow the question or answer to be considered as evidence. The legal term “objection sustained” means that the judge agrees with the objection and excludes the testimony or item objected to. The legal term “objection overruled” means that the judge disagrees with the objection and allows the testimony or item to be considered as evidence.

1) Standard Objections on Direct and Cross Examination

a) Irrelevant Evidence: “I object, your honor. This testimony is irrelevant to the facts of this case.”

b) Leading Questions: “Objection. Counsel is leading the witness.” Remember, this is only objectionable when done on direct examination.

c) Narrative Questions and Answers: may be objectionable.

d) Improper Character Testimony: “Objection. The witness’ character or reputation has not been put in issue or “Objection. Only the witness’ reputation/character for truthfulness is at issue here.”

e) Hearsay: “Objection. Counsel’s question/the witness’ answer is based on hearsay.” If the witness makes a hearsay statement, the attorney should also say, “and I ask that the statement be stricken from the record.”

f) Opinion: “Objection. Counsel is asking the witness to give an opinion.”

g) Lack of Personal Knowledge: “Objection. The witness has no personal knowledge that would enable him/her to answer this question.”

h) Lack of Proper Predicate: Exhibits will not be admitted into evidence until they have been identified and shown to be authentic (unless identification and/or authenticity have been stipulated). Even after proper predicate has been laid, the exhibits may still be objectionable due to relevance, hearsay, etc.

i) Ambiguous Questions: An attorney shall not ask questions that are capable of being understood in two or more possible ways.

j) Non-responsive Answer: A witness’ answer is objectionable if it fails to respond to the question asked.

k) Argumentative Question: An attorney shall not ask a question which asks the witness to agree to a conclusion drawn by the questioner without eliciting testimony as to new facts. However, the Court may, in its discretion, allow limited use of argumentative questions on cross-examination.

l) Unfair Extrapolation/Beyond the Scope of the Statement of Facts: Attorneys shall not ask questions calling for information outside the scope of the case materials or requesting an unfair extrapolation. Unfair extrapolations are best attacked through impeachment and closing arguments and are to be dealt with in the course of the trial. A fair extrapolation is one that is neutral.

Note: Fair extrapolations may be allowed, provided reasonable inference may be made from the witness’s statement. If, in direct examination, an attorney asks a question which calls for extrapolated information pivotal to the facts at issue, the information is subject to objection Outside the Scope of the Problem. If in CROSS examination, an attorney asks for unknown information, the witness may or may not respond, so long as any response is consistent with the witness’ statement or affidavit and does not materially affect the witness’ testimony.

m) Asked and Answered: “Objection. Your honor, the question has already been asked and answered.”

n) Objections Not Recognized in This Jurisdiction: An objection which is not contained in these materials shall not be considered by the Court. However, if counsel responding to the objection does not point out to the judge the application of this rule, the Court may exercise its discretion in considering such objection.

Note: Attorneys should stand during objections, examinations, and statements. No objections should be made during opening/closing statements but afterwards the attorneys may indicate what the objection would have been. The opposing counsel should raise his/her hand to be recognized by the judge and may say, “If I had been permitted to object during closing arguments, I would have objected to the opposing team’s statement that.” The presiding judge will not rule on this objection individually and no rebuttal from the opposing team will be heard.

Opinions of Witnesses

a) Expert Opinion

i) Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

ii) Opinions on Ultimate Issue

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it included an ultimate issue to be decided by the trier of fact.

iii) Basis of Opinion Testimony by Experts

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, him at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

iv) Expert Opinion (additional information)

An expert shall not express an opinion as to the guilt or innocence of the accused.

b) Lay Opinion

Opinion Testimony of Lay Witnesses

i) If a witness is not testifying as an expert, his testimony about what he perceived may be in the form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

ii) Lay Opinion (additional information)

All witnesses may offer opinions based on the common experience of laypersons in the community and of which the witnesses have first-hand knowledge. A lay opinion may also be obtained. For example, Sandy Yu, as the personnel director, would know of other complaints of sexual harassment in the office and any formal reprimands, even though he is not an expert in sexual harassment. They may be asked questions within that range of experience. No witness, not even an expert, may give an opinion about how the case should be decided.

The cross-examination of opinions proceeds much like the cross-examination of any witness. Questions, as indicated above, may be based upon the prior statement of the witness. Inconsistencies may be shown. In addition, the witness may be asked whether he or she has been employed by any party, to show bias or interest. Or a witness giving an opinion may be asked the limits of certainty in that opinion, as follows:

“Dr. Isaacs, please read this portion of your sworn statement to the court.”

"I have studied the records of this case, and have conducted two one-hour interviews with Elyse Roberts on March 29 and 31st. In those interviews, she described to me her family history, her work environment, the actions of her co-workers and supervisor and her resulting feelings."

“This is your statement, is it not, Dr. Isaacs? Ms. Roberts selected you because of your expertise in sexual harassment in the workplace, correct? During your two-hour interview you were only concerned with evaluating Ms. Roberts’ working environment and not other psychological factors that may have caused her problems. Thus you really can't say that Ms. Roberts' difficulty on the job was only caused by the actions of Mr. Murphy, can you?”

The point of these questions is not to discredit the witness. Rather, the objective is simply to treat the witness as a responsible professional who will acknowledge the limits of her or his expertise and testimony. If the witness refuses to acknowledge those limits, the witness then is discredited.

It is always important in cross-examination to avoid arguing with the witness. It is particularly important with an expert. Thus, the cross-examination should be carefully constructed to call only for facts or to draw upon statements the witness has already made.

c) Lack of Personal Knowledge

A witness may not testify to any matter of which the witness has no personal knowledge. The legal term for testimony of which the witness has no personal knowledge is "incompetent."

3) Relevance of Testimony and Physical Objects

Generally, only relevant testimony may be presented. Relevant evidence is physical evidence and testimony that makes a fact that is important to the case more or less probable than the fact would be without the evidence. However, if the relevant evidence is unfairly prejudicial, may confuse the issues, or is a waste of time, it may be excluded by the court. Such relevant but excludable evidence may be testimony, physical evidence, or demonstrations that have no direct bearing on the issues of the case or do not make the issues clearer.

a) Introduction of Documents, Exhibits, Items, and Other Physical Objects Into Evidence

There is a special procedure for introducing physical evidence during a trial. The physical evidence must be relevant to the case, and the attorney must be prepared to its use on that basis. Below are the basic steps to use when introducing a physical object or document for identification and/or use as evidence.

i) Show exhibit and have it marked by the judge. Say “Your Honor, I ask that this ___ be marked for identification as Plaintiff’s/Defendant’s Exhibit No. ___”

ii) Show the exhibit to opposing counsel for possible objection. Ask the witness to identify the exhibit. “I now hand you what is marked as Exhibit No. 1. Do you recognize this document?”

iii) At this point the attorney may proceed to ask the witness a series of questions

about the exhibit.

iv) If the attorney wishes to place the document into evidence, say, “Your Honor, I offer this ____ marked as Plaintiff's/Defendant's Exhibit No. 1 into evidence and ask the Court to so admit it.”

Court: “Is there any objection?”

Opposing Counsel: “No, your Honor.” or “Yes, your Honor.” (then state objection).

Court: “Plaintiff's/Defendant's Exhibit No. 1 is (is not) admitted.”

NOTE: A witness may be asked questions about his/her statement without its introduction into evidence; but to read from it or submit it to the judge, it must first be admitted into evidence. Exhibits can be pre-marked.