OBJECTIONSOBJECTIONS

Mock TrialMock TrialModified by Dennis Gerl from Modified by Dennis Gerl from

Evidence PPT by John Ed-Bishop Evidence PPT by John Ed-Bishop

Are You Ready to RumbleAre You Ready to RumbleWhat is Special about Objections?What is Special about Objections?

They are AdversarialThey are Adversarial

Plan AheadPlan Ahead

Change Strategies Change Strategies QuicklyQuickly

Be Quick on Your FeetBe Quick on Your Feet

Know the RulesKnow the Rules

Why Object?Why Object?

Prevents “Questionable” evidence or Prevents “Questionable” evidence or testimony to come into trialtestimony to come into trial

Only Object if it will help your case Only Object if it will help your case

Interrupts opposing counsel’s Interrupts opposing counsel’s “script” - - dangerous to do because “script” - - dangerous to do because you may appear rudeyou may appear rude

Why Would You Not Object?Why Would You Not Object?

Keep a Favorable Jury ImpressionKeep a Favorable Jury Impression

Do Not Want to Draw Jury’s Attention Do Not Want to Draw Jury’s Attention to Testimonyto Testimony

Testimony Helps your caseTestimony Helps your case Lays foundation for your evidenceLays foundation for your evidence Introduces character evidenceIntroduces character evidence

What Objections are based What Objections are based on on

Mock Trial Objections are based on Mock Trial Objections are based on the Rules of Civil Procedure and the the Rules of Civil Procedure and the Federal Rules of Evidence Federal Rules of Evidence

Attorneys make Objections by Attorneys make Objections by applying general rules to specific applying general rules to specific questions, testimony and exhibitsquestions, testimony and exhibits

How to ObjectHow to Object Objection must be timelyObjection must be timely

• Object to the question before the answerObject to the question before the answer• Object to the answer before the next Object to the answer before the next

questionquestion• Object to the document when used or offeredObject to the document when used or offered

Rise and say, “Objection”Rise and say, “Objection”• State the Rule (and grounds briefly)State the Rule (and grounds briefly)• Be prepared to argueBe prepared to argue

Accept court’s ruling gracefullyAccept court’s ruling gracefully

Sources of ObjectionsSources of Objections

Mock Trial Competition RulesMock Trial Competition Rules

Rules of ProcedureRules of Procedure

Federal Rules of Evidence (FRE)Federal Rules of Evidence (FRE)

Important Important Mock Trial RulesMock Trial Rules

Witnesses Bound by Statements Competition Rule 3Witnesses Bound by Statements Competition Rule 3

Unfair Extrapolation Competition Rule 4 Unfair Extrapolation Competition Rule 4

No objections during Opening and Closing No objections during Opening and Closing Rule of Procedure 36Rule of Procedure 36

Only 2 Questions on Re-Cross and Direct - - limited to prior Only 2 Questions on Re-Cross and Direct - - limited to prior examination FRE 611(d); Rule of Procedure 40examination FRE 611(d); Rule of Procedure 40

Scope of Cross Not Limited by Direct FRE 611(b)Scope of Cross Not Limited by Direct FRE 611(b)

Clock stops when Objections are made Competition Rule Clock stops when Objections are made Competition Rule 13. 13.

Objection:Objection:Unfair ExtrapolationUnfair Extrapolation

Competition Rule 4Competition Rule 4

Witnesses are bound by statementsWitnesses are bound by statements

Attorneys shall not ask questions Attorneys shall not ask questions for information outside the scope of for information outside the scope of the case materials or requesting the case materials or requesting unfair extrapolations on pivotal unfair extrapolations on pivotal pointspoints

Witness may testify only to facts Witness may testify only to facts stated in or reasonably implied from stated in or reasonably implied from their statement or fact situation.their statement or fact situation.

Objection:Objection:ArgumentativeArgumentative

Rule of Procedure 37 (1)Rule of Procedure 37 (1)

Opposing Counsel isn’t Opposing Counsel isn’t asking a question as asking a question as much as he or she is much as he or she is making an argument or making an argument or conclusion.conclusion.

ObjectionsObjectionsLack of FoundationLack of Foundation

Rule 37 (2)Rule 37 (2)

Prerequisite evidence has Prerequisite evidence has not been entered that not been entered that would allow the current would allow the current evidence to be presented.evidence to be presented.

Introducing DocumentsIntroducing Documents Pre-mark for identificationPre-mark for identification

Ask for permission to approach the bench. “Your Honor, may I approach the bench Ask for permission to approach the bench. “Your Honor, may I approach the bench to show you what has been marked as Ex. ___?”to show you what has been marked as Ex. ___?”

Show the presiding judge the marked exhibitShow the presiding judge the marked exhibitShow exhibit to opposing counselShow exhibit to opposing counsel

Ask permission to approach witnessAsk permission to approach witness““I now hand you what has been marked as Ex. ___ for identification.” I now hand you what has been marked as Ex. ___ for identification.” As witness “Would you you identify it please?” Witness answers with identification As witness “Would you you identify it please?” Witness answers with identification only.only.

““Your honor, we offer Exhibit ___ into evidence into evidence at this time. The Your honor, we offer Exhibit ___ into evidence into evidence at this time. The authenticity of the exhibit has been stipulated.”authenticity of the exhibit has been stipulated.”

Court will look to or ask opposing counsel if there is an objection.Court will look to or ask opposing counsel if there is an objection.

Opposing Counsel – “ No objection” or “yes I object because”Opposing Counsel – “ No objection” or “yes I object because”

The Court: “Exhibit No. ___ is/is not admitted.”The Court: “Exhibit No. ___ is/is not admitted.”

The attorney may then proceed to ask questions.The attorney may then proceed to ask questions.

Objection:Objection:Assumes Facts Not into Assumes Facts Not into

EvidenceEvidence

Rule of Procedure 37 (3)Rule of Procedure 37 (3)

Question contains Question contains information not yet in information not yet in evidence.evidence.

Objection:Objection:Assumes facts not in evidence/ Assumes facts not in evidence/

Calls for speculation Calls for speculation Rule of Procedure 37 (3)Rule of Procedure 37 (3)

Witness does not have first-Witness does not have first-hand knowledge of the fact hand knowledge of the fact they are testifying tothey are testifying to

May also be a hearsay May also be a hearsay objection present Rule 802objection present Rule 802

Objection:Objection:Calls for a Narrative Calls for a Narrative

Rule of Procedure 37 (4)Rule of Procedure 37 (4)

Question does not call for Question does not call for a specific answer a specific answer

Objection:Objection:Non-responsiveNon-responsive

Rule of Procedure 37 (5)Rule of Procedure 37 (5)

Witness is not answering Witness is not answering the question being askedthe question being asked

Objection:Objection:Asked and AnsweredAsked and Answered

Rule of Procedure Rule of Procedure 37(6) Repetition37(6) Repetition

This question has This question has previously been asked previously been asked by this attorney and by this attorney and answered by this answered by this witness. witness.

Objection:Objection:Leading the WitnessLeading the Witness

FRE 611 (c)FRE 611 (c)

A question on direct examination A question on direct examination that suggests an answer.that suggests an answer.

This does not apply to cross This does not apply to cross examinations or examinations of examinations or examinations of expertsexperts

Be careful, Judges may be pretty Be careful, Judges may be pretty lenient on this. Use only if lenient on this. Use only if blatant.blatant.

Objection:Objection:Beyond Scope Beyond Scope

FRE 611 (d)FRE 611 (d)

Applies only to re-direct, and re-Applies only to re-direct, and re-crosscross

In mock trial Cross is not limited in In mock trial Cross is not limited in scope FRE 611 (b)scope FRE 611 (b)

Solicited testimony is not relevant Solicited testimony is not relevant to previous questioning of witnessto previous questioning of witness

For both re-direct and re-cross For both re-direct and re-cross attorneys are limited to 2 questionsattorneys are limited to 2 questions

Objection:Objection:RelevanceRelevance

FRE 401FRE 401

Evidence does not Evidence does not relate to the caserelate to the case

Be prepared to Be prepared to explain whyexplain why

Objection:Objection:More Prejudicial Than More Prejudicial Than

ProbativeProbative FRE 401 and 403FRE 401 and 403

Evidence presented Evidence presented whose “probative whose “probative value is substantially value is substantially outweighed by the outweighed by the danger of unfair danger of unfair prejudice,” etc.prejudice,” etc.

Objection:Objection:Improper Character EvidenceImproper Character Evidence

FRE 404 FRE 404

Evidence of a person’s character or character Evidence of a person’s character or character trait is nor admissible to prove action on a trait is nor admissible to prove action on a particular occasion except:particular occasion except:

Pertinent character trait of the accusedPertinent character trait of the accused Pertinent character trait of a victimPertinent character trait of a victim Character of a witness under Rules 607 & 608Character of a witness under Rules 607 & 608

FRE 607 ImpeachmentFRE 607 Impeachment FRE 608 Character of witnessFRE 608 Character of witness

Opinion and reputation if (1) related to Opinion and reputation if (1) related to truthfulness or untruthfulness and (2) the truthfulness or untruthfulness and (2) the character of the witness for truthfulness or character of the witness for truthfulness or untruthfulness has been attacked by opinion or untruthfulness has been attacked by opinion or reputation evidence or otherwisereputation evidence or otherwise

Extrinsic evidence of character conduct not Extrinsic evidence of character conduct not generally allowed.generally allowed.

Objection:Objection:Specific Instances of Conduct Specific Instances of Conduct

FRE 608(b)FRE 608(b)

Specific Instances of prior conduct, other than Specific Instances of prior conduct, other than conviction of a crime under FRE 609, may not conviction of a crime under FRE 609, may not be proved by extrinsic evidence, unless be proved by extrinsic evidence, unless

If probative of truthfulness or untruthfulness If probative of truthfulness or untruthfulness then witness on cross can be asked then witness on cross can be asked

(1) concerning witnesses character for (1) concerning witnesses character for truthfulness or untruthfulness; ortruthfulness or untruthfulness; or

(2) concerning the character or (2) concerning the character or truthfulness or untruthfulness of another truthfulness or untruthfulness of another witness as to which character the witness witness as to which character the witness being cross examined has testified. being cross examined has testified.

Objection:Objection:Improper Lay OpinionImproper Lay Opinion

FRE 701FRE 701

Generally lay witnesses cannot Generally lay witnesses cannot give opinion evidence unless it give opinion evidence unless it is: is:

(a) based on rational perception (a) based on rational perception

of the witness of the witness andand

(b) is helpful to a clear (b) is helpful to a clear understanding of the testimony.understanding of the testimony.

Objection:Objection:Improper Expert OpinionImproper Expert Opinion

FRE 702, 703, and 704FRE 702, 703, and 704

Testimony that exceeds the Testimony that exceeds the expert’s field, or relies on expert’s field, or relies on data that such experts do not data that such experts do not reasonably rely upon. FRE reasonably rely upon. FRE 703703

Expert cannot give an Expert cannot give an opinion on guilt or innocence opinion on guilt or innocence in a criminal trial. FRE 704in a criminal trial. FRE 704

Objection:Objection:HearsayHearsay

Rule 801, 802Rule 801, 802

Statement made out of Statement made out of court being presented to court being presented to assert the truth of the assert the truth of the words in the statement.words in the statement.

Exceptions apply. Know Exceptions apply. Know them, your opponent them, your opponent will.will.

What is not HearsayWhat is not HearsayRule 801Rule 801

Witnesses Prior Statement - under certain conditionsWitnesses Prior Statement - under certain conditions

If any witness testifies at trial and the testimony is different If any witness testifies at trial and the testimony is different from what the witness previously said, the cross examining from what the witness previously said, the cross examining lawyer can bring out this inconsistency. FRE 801(d)(1)lawyer can bring out this inconsistency. FRE 801(d)(1)

Admission by a party opponent Admission by a party opponent

A statement previously made by a party is admissible A statement previously made by a party is admissible against that party when offered by the other side. FRE against that party when offered by the other side. FRE 801(d)(2)801(d)(2)

Exceptions to Hearsay Exceptions to Hearsay FRE 803FRE 803

(1) Present sense impression(1) Present sense impression (2) Excited Utterance(2) Excited Utterance (3) Then existing mental, emotional (3) Then existing mental, emotional

or physical conditionsor physical conditions (4) Statements made for purposes of (4) Statements made for purposes of

medical diagnosis or treatmentmedical diagnosis or treatment Reputation as to CharacterReputation as to Character

Hearsay within HearsayHearsay within Hearsay

Hearsay included within hearsay is Hearsay included within hearsay is not excluded if each part of the not excluded if each part of the combined statement conforms with combined statement conforms with an exception to the hearsay rule. an exception to the hearsay rule. FRE 805FRE 805

PreparationPreparation

Victorious warriors win first and then Victorious warriors win first and then go to war, while defeated warriors go go to war, while defeated warriors go to war first and then seek to win.to war first and then seek to win. Sun-tzuSun-tzu, , The Art of War. Strategic The Art of War. Strategic

AssessmentsAssessments

Know the caseKnow the case

Identify Questionable MaterialIdentify Questionable Material Yours and Your OpponentsYours and Your Opponents

Changing Your StrategyChanging Your Strategy

"No battle plan survives its first contact with the "No battle plan survives its first contact with the enemy."enemy."

Practice alternate strategies and unfavorable Practice alternate strategies and unfavorable rulingsrulings

Stick to Your Guns with Politeness and CourtesyStick to Your Guns with Politeness and Courtesy Give the Judge a chance to agree with youGive the Judge a chance to agree with you

Common Sense if Nothing ElseCommon Sense if Nothing Else When you don’t have a argument, make one, or if When you don’t have a argument, make one, or if

appropriate withdraw the question. Consider saying appropriate withdraw the question. Consider saying “Thank you counsel, I’ll withdraw the question.” “Thank you counsel, I’ll withdraw the question.”

Quick on Your FeetQuick on Your Feet

This is not an Evidence This is not an Evidence ExamExam

You Snooze, You You Snooze, You LoseLose

PracticePractice

Listen and pay attentionListen and pay attention

ConclusionConclusion Know your caseKnow your case Know Questionable Material For Both Know Questionable Material For Both

SidesSides Prepare Arguments ahead of timePrepare Arguments ahead of time

Your objectionsYour objections Responses to counter opponent’s Responses to counter opponent’s

objectionsobjections Know Rules of EvidenceKnow Rules of Evidence Practice, Practice, PracticePractice, Practice, Practice You Can’t Win if You Don’t FightYou Can’t Win if You Don’t Fight