Common Objections at Trial

Background

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 -