O. Objections
More than a hundred possible objections can be thought up based on statutes, rules, and court decisions, but most of these objections rarely come up and have enough of an overlap with other objections that detailed knowledge of obscure objections is not needed.
A few obscure objections are presented here for entertainment:
- Bickerstaff – objection to the argument that defendant is probably guilty.
- Doyle – objection to comments on the defendant’s exercise of the right to remain silent (sometimes called Griffin objection).
- Falconer – objection to argument that a defendant should be found guilty of manslaughter prior to determining whether defendant is guilty of the murder of the same person.
- Bain – objection to the prosecutor giving his personal opinion that the defendant is guilty.
If an objection is sustained after the witness has already answered the question, the court may “strike” the answer and “admonish” the jury to disregard the answer. To admonish, the court tells the jury something like, “you are to disregard the answer to that question.”
Some of the more common objections at trial include:
Relevance
Evidence must be relevant. Evidence is relevant when it tends to prove or disprove a fact of consequence. (Evidence Code §§210, 350, and 351.)
352
A trial judge may exclude relevant evidence if its probative value is substantially outweighed by its prejudicial effect. Evidence is prejudicial if it may bias the jury, confuse the jury, waste time, or unduly delay the proceeding. (Evidence Code §352.)
Facts Not in Evidence
A question may not assume as true a fact that has not yet been introduced in evidence. For example, “when did you leave the crime scene?” assumes that the person was at a particular location and that a crime has been committed.
Foundation
Closely related to Facts Not in Evidence, and sometimes interchangeable, is a foundation objection. An attorney cannot ask the witness to answer a question that lacks foundation. “What did you see defendant do?” lacks foundation unless it is first established that the witness was present and could see something. (Evidence Code §400, et seq.)
Hearsay
Hearsay is a statement made other than when the person is testifying that is offered for the truth of the matter stated. Hearsay is generally not admissible, but there are many exceptions. Also, an out of court statement that is not being offered to prove the truth of the statement is not hearsay. (Evidence Code §1200; see further discussion of hearsay under the heading Select Legal Authorities).
Example: Fred testifies that Wilma told him she saw defendant kill the victim. Fred’s testimony is not admissible because it is being offered to prove that Wilma saw defendant kill the victim.
Personal Knowledge
A witness may not testify to facts unless he personally observed the facts in some way. (Evidence Code §403.)
Narrative
Questions should be closed-ended and call for short answers on only one subject. A question that calls for a long explanation permits the witness to narrate and is impermissible.
Compound
A question with two subjects is compound and improper. “Did you go to the store and buy a soda?” is compound in that it is asking the witness whether he went to the store and whether he bought a soda.
Speculation
A question that invites the witness to speculate or guess the answer, such as “What was he thinking?” or “What did he do after you left?” The witness cannot know the answer to either of these questions, but can make a logical guess. Such guesses are not allowed, no matter how logical.
Beyond the Scope
A witness first faces direct examination by the party who called the witness to testify. When the other party cross examines the witness, questions are limited to the topic raised by the first party and matters that would tend to impeach the witness.
Calls for a Conclusion
Witnesses must testify to facts, not their opinion as to the facts. It is the duty of the jury or the judge to form conclusions based on the facts as presented. It is, therefore, wrong for a witness to state a conclusion, such as “defendant murdered that man” or “defendant was driving drunk.”
Best Evidence
A party trying to prove the contents of a writing can do so by producing the original document or by producing some secondary evidence of the document. However, this secondary evidence cannot be used if “A genuine dispute exists concerning material terms of the writing and justice requires the exclusion” or “Admission of the secondary evidence would be unfair.” A Best Evidence objection is claiming that the secondary evidence is inadmissible for one of these two reasons.
In Limine
Objection indicating that a party is violating the court’s previous rulings made during hearing of motions in limine.
Vouching
Objection indicating that an attorney is personally vouching for the credibility of a witness.