An Overview of Common Objections
Objections are made when a party believes another party has not followed the rules of the courtroom or has done something that is unfair. It’s how a party stops the other party from doing something that is not allowed by law or the rules of a court. For example, a party may make an objection because a document was not properly introduced into evidence. Or a party might object to allowing hearsay statements. Without objections, the other party might be able to make statements that have not been properly introduced as evidence, and that could hurt the person requesting relief from the court.
Most people think of objections in jury trials when TV shows and movies show a lawyer yelling "objection" with the judge then saying "sustained" or "overruled." Judges will not routinely say "sustained" or "overruled" in hearings that do not have juries, but objections still come up. Objections can be made during hearings on motions, hearings on temporary orders, and temporary restraining order hearings .
There are also objections made when someone is on the witness stand. These objections may be made to keep a witness from answering questions that are not allowed by law or the rules of a court. For example, it is clearly improper for a lawyer to ask the opposing party leading questions. An opposing party should object to these questions, so the lawyer asking the questions will either rephrase the question or the judge will rule the witness does not have to answer the question.
It’s important to know when to make an objection, and when not to. Courts do not want to hear a lot of objections. If you make a lot of objections, the judge may think you are improperly trying to keep the other party from having a fair trial. A lawyer who objects too much can lose credibility with a judge really quickly. So when you make an objection, make sure it is based on a evidence rule or law. Teachers do not want you calling out in class, even if what you are saying is correct. That just makes you annoying. Judges don’t want to hear you calling out when you should address the judge.
Relevance: Staying Within the Scope of the Case
In legal terms, relevance is defined as the relationship of a proposed item of evidence to the matter in issue. While the definition may be straightforward, the use of the term in court can be cloudier. A witness can testify as to the weather, but how will this impact the case for or against your client? Perhaps the statement from the witness seems irrelevant at first; however, if the witness has become hostile because of your line of questions, perhaps this hostility is relevant to your case. How do you determine when the relevance objection should be made? And, how do you avoid having this objection made against your testimony?
Consider the scenario where the plaintiff alleges that the defendant blew through a stop sign and crashed into his car. The defendant intends to call as his first witness an accident reconstruction expert to testify that the defendant was in fact driving the speed limit when the accident occurred and was not negligent. One of the plaintiff’s objections might be relevance based on the fact that the action is an automobile accident case, not a speed case. This objection should be overruled, because the testimony goes to whether the cause of the accident was negligence. The plaintiff’s response to the example above would have been a success if the plaintiff objected on the basis that this was a speeding case. On the other hand, just because the witness to be called has no experience with stop signs is not a reason to object to his testimony.
For the defendant’s next witness, he intends to call his neighbor who lived on the corner where the accident occurred as a witness to the hard braking of his car prior to the accident. The plaintiff might object to this witness on the ground of relevance because he heard the brakes squeal. However, just because the neighbor is simply testifying that he heard the brakes squeal does not defeat the testimony that it is relevant to whether the defendant slammed onto the brakes prior to the intersection where the sign was or simply slowed down in an amount that was appropriate given the stop sign at the intersection.
Hearsay: The Exceptions You Need to Know
Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Federal Rule of Evidence 801(c). Under this broad definition, the rules governing hearsay break down into numerous exceptions to the general rule. In other words, there are times when an out of court statement can be admitted into evidence to prove the truth of the matter asserted. While this is not the case in civil actions, there are many exceptions to the general rule of inadmissibility in criminal actions, as we will see below.
Mental State or Physical Condition – Rule 803(3) allows for the admission of out of court statements that reflect a person’s state of mind. For instance, "A is hit by a car and is taken to the hospital. While there, A says, ‘I am so mad at her.’ The statement is admissible under this exception as evidence of A’s state of mind, notwithstanding the fact that the statement is being offered for the truth of the matter asserted therein . . . the statement is relevant to show A’s anger." Gibbons v. Schmidt, 293 Ga. App. 164, 165 (2008). According to the Advisory Committee note to Rule 801, "this hearsay exception is perhaps the most important of all the ‘personal state of mind’ exceptions to the hearsay rule."
Present Sense Impression – Present sense impression is governed by Rule 803(1), and allows for the admission into evidence "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." Thus, Rule 803(1) applies to an out of court statement made at or very near a time when the speaker perceived events. For instance, a witness in medical malpractice case testifies that the doctor said, ‘help me he wouldn’t stop bleeding,’ immediately after the incident. The statement would be admissible to prove the truth of the matter asserted because the statement was made while perceiving the event and contemporaneously with the occurrence.
Then Existing mental, Emotional, or Physical Condition – Rule 803(3) governs this exception. It reads as it applies to mental condition: "A statement of the declarant’s then existing state of mind (such as motive, intent, or plan), but not including a statement of memory or belief offered to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will." So if A in our example above told a witness, "I am going to go home and blow my husband’s car up," immediately after leaving a bar, that statement could be used to prove A’s plan to blow up her husband’s car.
Admissibility of Hearsay Statements Under Common Exceptions – The above are only two of the many common exceptions to the general rule of inadmissibility of hearsay. See Rule 803. In any given case, a statement made by a party opponent may be offered by an adverse party into evidence, as long as the statement is offered for the purpose of admission as an admission of a party opponent. See Rule 801(d)(2). The most commonly encountered hearsay exception, however, involves records kept in the ordinary course of business. See O.C.G.A. § 24-8-803(6). This evidence is admissible, assuming, among other things, under Georgia law, the record or memorandum made at or near the time of occurrence, considered by the witness to be accurate, and made by a business entity or as a result of an event regularly recorded by a business entity. See id.; see also Rule 803(6). Likewise, under Georgia law, the most commonly encountered hearsay exception to the general rule of inadmissibility is a written statement by a witness regarding the facts of a case or a fact that is clearly within the witness’s knowledge. See Rule 803(1) (writing is admissible even though the witness is available to testify); see also Rule 804(b)(3) ("[Statement made by declarant who is unavailable as witness] (1) Against interest; and (2) Corroborating circumstances. A statement tending to subject declarant to criminal liability, which is offered to exculpate the accused, may not be admitted unless corroborating circumstances clearly indicate the trustworthiness of the statement.").
Leading Questions: How to Conduct Direct Examination
Leading questions are those that suggest the answer to the witness ahead of time. You might ask a witness "were you at the party when the shots were fired?" instead of "where were you when the shots were fired?" The first of these two questions is a leading one as it suggests to the witness a certain point of view. The second one? It doesn’t tell them anything about the subject matter in question, it simply asks them a question that generally needs a simple response.
The problem with leading questions is that they can mess up your case. They are necessary sometimes. If, for example, you are on cross examination and trying to impeach the witness you wouldn’t be able to do that without a leading question. But if you are leading your own witness on direct exam, you could be in serious trouble.
It’s always important to remember that leading questions are generally not allowed on direct exam unless you have laid the foundation properly for them. They are very complicated and if over done can ruin your case. Instead of asking leading questions, which could be dangerous, you could also go with open ended questions. These questions allow the witness to answer however they choose and allows them to be more creative than just yes or no.
Speculation: Don’t Go Out on a Limb
What do you think will happen next? Wouldn’t it be great if your ability to read minds, in or out of court, was for real? However, our ability to predict the future is really just a guess based on current facts and information. That’s why when a witness is asked to speculate on the outcome of a given scenario, the attorney receiving the response from the witness is ready to pounce with an objection. The legal rationale behind making this objection is that it is not for the witness to tell the jury what will happen in the future. In fact, if the witness is a percipient witness to the incident in question, he or she should only be allowed to testify to the percipient facts regarding the incident and not to speculate on what may happen next. In addition, a witness simply does not have enough information or knowledge to reliably and accurately testify as to what will happen in the future.
The jury should be the one to determine what may happen next or what should have happened differently. The basic objection is "Objection, speculation". Since it may be difficult to tell how a specific question may be answered, it can be useful to simply state the objection when the question is asked and to further state, "I will state the basis for the objection at the end of the question . " Then, if the question is answered speculatively, you should make the objection and then state the ground for your objection. The objection will likely be upheld whether the objection was made at the time of the question or later when the answer was actually given. What is important is that the record is clear that the basis for the objection is speculation and nothing other than speculation. The types of questions that are likely to elicit a speculative answer include: In addition to the specific examples stated above, there are many types of questions that will elicit a speculative response such as "Why do you think it was that way?" Another example is that of a police officer testifying about what he believes triggered the fight between the Plaintiff and the Defendant. There isn’t necessarily a way for the officer to know exactly what each party was thinking when the incident happened and therefore what each party’s motivation for such action was. In my experience, most judges are pretty good at sustaining objections to speculation.
Opinion: The Difference Between Expert and Lay Witnesses
The general rule is that a lay witness (non-expert) can testify as to facts, but not as to opinions or conclusions.
A. Opinion Testimony By Non-Expert (Lay) Witnesss
Objection: Opinion testimony by a non-expert witness is objectionable as providing opinion or interpretation. Unless the case involves a very specialized area, state to the court that the tendered testimony is eliciting opinion or interpretation, and that it does not meet any of the requirements for an opinion given by a non-expert witness.
Exceptions: Opinion testimony by a non-expert is allowed when:
- The opinions are based on personal knowledge or experience: The non-expert witness is providing the opinion of his or her personal observations. Examples: "The weather was particularly hot years."; "I’ve been to plenty of fisheries and this is the first thing I’ve ever seen like this."
- The opinions are based on common knowledge: The opinion reasons forward from something which is generally and widely understood. Examples: "This is a busy intersection."; "There are not many mechanic shops in this area."
- The opinion is helpful to understanding the testimony or determining a fact in issue: Example: "I recognized the voice of the person who made these calls."
- The opinion is rationally based on either (1) the perception of the witness, or (2) information of which the witness is made aware at or before the hearing and is of a type reasonably relied upon by experts in the particular field. This simply means that the opinion is only admissible if the opinion is based upon either what the witness saw, heard or experienced, or, if the witness is made aware of something that is reliable and that experts in that field would rely upon it.
B. Opinion Testimony By Expert Witnesses
Objection: Opinion testimony by an expert witness is objectionable as failing to meet the requirements of qualification or reliability. The applicable statutory section for the state where the trial is held should be provided as authority for the ruling that the witness lacks the foundation needed to render the opinion.
1. Qualification: An expert witness must be qualified by education, training, experience or skill to render expert testimony. A lack of qualification can be based on the facts that the purported expert does not have the educational background, claims to be an expert in something which such person is not an expert, or claims to be an expert in something in which such person is not an expert.
2. Reliability: To be allowed as expert testimony, the opinion must be based on sufficient facts or data. Examples: "My opinion is not based upon the facts in evidence. I don’t know if there is or is not a door in that wall." Or "There is no evidence of a door so my opinion is based upon speculation."
Compound and Confusing: When to Let the Witness Finish
When it comes to objections, compound and confusing questions are the equivalent of those elastic sticks you used to play with in elementary school, that would stretch and snap back over and over again. And just as with those silly rubber toys, if you’re not prepared your question may end up bouncing back in your face.
In general, a question is compound and confusing if there are two or more parts to it, but your witness can only grasp the first part of the question. For example, "How do you know that Sally left her house at 9am and that she drove her car?" poses two questions to the witness. First, you’re asking them how they know Sally left her house at 9am, then you’re asking them how they know she drove her car. That’s two questions, but you’ve only asked one. This may seem like a nit-picky distinction, but let me put my defense-attorney hat on (well, I guess I’m always wearing it), and think about this in the context of a drunk driving case. A cop comes up on the stand and says, "I saw the defendant’s head bob down, then his eyes closed, then he had to use his hands to hold on to the hood of his patrol car to balance himself, then he swayed back and forth." The jury hears that the cop says the defendant’s eyes were closed. Period. It doesn’t matter to them that there was also a swaying back and forth and an eventual tumble to the pavement; all they heard is that they didn’t get a good look at the defendant’s eyes when the officer observed him.
So how do you avoid these types of questions? First, don’t ask them. But if you absolutely must ask a compound question, a good way to prevent an argument is to tack on a short follow-up question to the end of the initial question: "Mr. Smith, how do you know that Sally left her house at 9am?" (pause) "Then how do you know that she drove her car?" Problem solved. The jury will hear the entire story, and your witness will be able to grasp the entire question at once. Note that this type of strategy won’t work with leading questions. A question like, "You left at 9am, right?" can’t have a follow-up like, "Right?" and be at all effective. But as long as the main question is open-ended, a little strategy never hurt anybody.
Conclusion: Strategically Using Objections
It is not enough to just know what the objections are, how to use them, and how to respond to them. Perhaps the most overlooked part of mastering objections in courtroom is using them effectively. In short, attorneys use objections to control the courtroom. Most courtroom proceedings are guided by specific rules of the court and the rules of order (often the Illinois Rules of Evidence or their state’s state equivalent) that allow for lawyers to steer the witness in a certain direction or keep the courtroom on track. Lawyers must stay focused on the matter at hand and maintain composure when their opponent maneuvers them away from the material they wish to present to the jury. The attorney who is more able to enact these techniques of control typically prevails in the courtroom. It requires the experience and know-how to assert the right objection at the right time. That know-how comes with confidence, forethought and practice. The old adage "practice makes perfect" rings true in the courtroom. To effectively use objections , attorneys first must know and understand the witness and what he or she wishes to achieve by testifying. Next, the attorney must understand how their opponent is going to question the witness and finally, anticipate the direction of the questions and how to counter them as the witness testifies. Many lawyers don’t have the confidence to object immediately, but the skill can be learned and perfected. If the attorney doesn’t feel comfortable interrupting the proceedings, wait until a recess and suggest the objection to the judge or file it in writing. More than once, while arguing at the bench, I’ve learned of new objections that I previously never would have considered, but that became instrumental to shielding my clients from prejudicial testimony. Learning how to successfully object in courtroom will pay for itself many times over. Simply knowing the reasons and methods for objections is not enough. Objections must be used at the right time and, once used, must be reapplied with precision and focus.