Common Objections at Trial

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In an adversarial system, the defense attorney is responsible for making oral or written objections to evidence that the prosecutor offers at trial. A proper objection is both 1) timely and 2) specific enough that the judge can understand the grounds for the objection.

If a defense attorney fails to make a timely and specific objection, the trial court (and subsequent appeals courts) will have deemed the issue waived by the defendant. The rationale behind the theory of waiver is that a defense attorney's failure to object should be deemed strategic and a defense attorney should not be able to take "two bites" at a trial by intentionally failing to object to a piece of evidence and then raising the issue on appeals.

Defense attorney should object immediately after a prosecutor or judge asks a question. Do not wait until the answer has been given. If an answer is given which is objectionable, the defense attorney may request that the judge strike the answer from the record. In addition, the defense attorney should demand that the judge inform the jury to disregard the answer. If the error is particularly egregious, the defense attorney may ask the judge to declare a mistrial.

Certain errors are, however, considered non-waivable. In those cases, a subsequent appeals court has no choice but to reverse the case and remand for a new trial.

Grounds for objections may be found in either the evidence code or binding case law.

Objections to Questions

  • Irrelevant - A proper question must make a consequential fact more or less probable. If the question would not elicit a consequential fact, it is irrelevant.
  • Immaterial - A proper question must result in an answer which logically bears on a relevant issue. A question which could not produce a relevant answer is immaterial
  • Best Evidence Rule - The Best Evidence Rule states that when physical evidence is available, a witness's testimony is an inadequate replacement for that testimony. If original documents are lost or destroyed, through no fault of the party proferring the witness, then the witness's testimony may be an admissible substitute.
  • Privilege - A defense attorney may object if a question would violate one of the common law or codified testimonial privileges: attorney-client privilege, doctor-patient privilege, Priest-Penitent Privilege, journalists' privilege, spousal testimonial privilege,or marital communications privilege. Example: "You told the attorney where you buried the bodies, didn't you?"
  • Conclusion - A defense attorney should object if the question calls for a conclusory answer. Example: "the defendant is guilty of murder, aren't they?" t
  • Improper Opinion - As a general rule, only experts may offer certain opinions in court. Non-experts, called lay persons, may testify as to opinion if it is rationally based on the perception of the witness and if the opinion would be helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Lay witnesses may be permitted to express opinions on a variety of topics (value of real propertyu, identify of individuals, competency of individuals, feelings, lighting conditions, sound, size, weight, distance, intoxication, appearance and competency, etc.)
  • Hearsay - In most common law courts a witness may not offer 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." See Hearsay, for more information on this objection
  • Narrative Answer
  • Leading - In certain jurisdictions, an attorney is prohibited from asking leading questions during direct examination. This rule is intended to prevent the attorney from putting words in the witness's mouth.
  • Repetive - Sometimes also known as "Asked and Answered", this objection should be used when an attorney attempts to ask the same question a second time.
  • Beyond the scope - In certain jurisdictions, cross-examination is limited to the scope of the direct examination. If an attorney asks a question during cross-examination that is beyond the scope of the direct examination, the attorney should object to the question.
  • Assumes facts not in evidence - In certain instances, an attorney may ask a question that assumes a fact not yet in evidence. Under those circumstances, the attorney should object until the fact has been established.
  • Improper Characterization -

See Trial, Evidence