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Definition
| is key; a late objection is often worse than no objection at all |
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Term
| when to raise evidentiary objections |
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Definition
| before trial is best; allows judge to make reasoned ruling; allows opposing lawyer to make good record for appeal; reduces possibility that the jury will hear inadmissible matters (and will need to be instructed to disregard them which is largely ineffective) |
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| required in most civil cases; pretrial memo lists exhibits, witnesses, and jury instructions and objections should be raised to these before trial (only thing you can't object to in advance is foundation) |
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simply a motion made before trial starts, during recess, or just before a witness testifies
simply asks the court to rule on an evidentiary matter so it need not be decided in the middle of the witness' testimony |
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| less objections the better |
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Definition
| juries see lawyers who make constant objections as lawyers who are trying to keep the real truth from them |
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| put it in jury instructions |
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Definition
| request a jury instruction that making objections is part of a lawyer's job |
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Term
| will the answer hurt your case? |
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Definition
unless you are reasonably sure that the answer to an objection will hurt your case it is usually better not to object - if you make it and it is sustained, the jury will naturally wonder what the answer to the question would have been
on other hand, don't want to not object and condition judge to think objectionable things are okay so he will overrule your objection later on - object enough so judge knows you know how to |
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Term
| two purposes of evidentiary objections |
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Definition
1. to keep the jury from hearing improper evidence
2. to preserve any error on appeal |
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| objection should state the legal basis for the argument succinctly and without excessive argument |
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| failure to obtain a ruling results in waiving any error on appeal |
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| being intimidated by objections; should always try to overcome the objection and get the evidence in some other way |
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make objection then hesitate slightly - sometimes court will sustain without requiring legal basis and this is best case scenario because court's ruling is proper if there is any proper basis for ruling
FRE 103 stating specific ground is only necessary if it is not apparent from the context of the question or answer |
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Term
| renewing objection at trial from pretrial objection |
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Definition
| not necessary any longer for preservation on appeal under FRE 103 - so long as trial court's ruling was definitive. If at time of ruling judge states admissibility is conditional, you must object again at trial. If not sure, renew at trial (many states still require this) |
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Term
| reasons for offer of proof |
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Definition
1. may convince trial judge to reverse ruling
2. will create a record so reviewing court will know what excluded evidence was and will be able to determine if exclusion was proper |
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Term
| what is an offer of proof |
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Definition
when your opponent succeeds in excluding important evidence, you make offer of proof in one of two ways:
1. simply tell court what proposed testimony would be either in narrative or Q&A format out of jury's presences
2. use witness himself out of jury's presence; this way reviewing court will have a verbatim transcript
first method has advantage of efficiency; second has advantage of completeness
opposing counsel may make proper objections during offer of proof |
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Term
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Definition
1. to form (of question - requires rewording)
2. to evidence (results in possible exclusion) |
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Definition
issues often arise when circumstantial evidence is offered because probative value may not be readily apparent;
as the opponent you should insist on an offer of proof; don't be satisfied by a conclusory assertion from opposing counsel that proffered evidence is relevant; don't allow long winded speech in front of jury - INSIST on a side bar |
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Term
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Definition
| is material if it has some logical bearing on an issue in the case |
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FRE 601-606 only requirements are:
1. witness take an oath to testify truthfully
2. he has personal knowledge about matter he is testifying on |
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Definition
| sometimes just serves to enforce the exhibit and make it more effective; maybe don't object and wait until closing - (of course it's a picture of intersection but no one ever said that's what it looked like on the date of the accident) |
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Term
| two frequently heard objections that should not be made: |
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Definition
1. evidence is self-serving (real objection is that it is hearsay and no exception applies)
2. statement was made out of the presence of the defendant (objection has no basis; presence of D has no effect on admissibility) |
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Definition
| qualifiers such as "did you or did you not" and "if anything" do not make a question proper where the rest of the question is leading |
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Term
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Definition
| objectionable because they do not give the other side proper opportunity to raise objections; however,sometimes can be good because they are disorganized and confusing |
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Term
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Definition
| FRE 701 - expanded permissible extent of lay witness conclusions by permitting the witness to testify to inferences from facts actually perceived by the witness under certain circumstances |
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Term
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Definition
this means that a question is arguing to the jury; the question elicits no new info, simply states a conclusion and asks the witness to agree to it
e.g. since it was raining, dark, and you were 50 feet away you didn't get a good look at the robber's face did you?
also can object to this in opening: "defendant is a violent, vicious brute" is argumentative in opening |
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Term
| improper characterization |
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Definition
| he was a spoiled brat; he attacked you like a frenzied dog; how much did you give to this financial wizard etc. |
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| confusing, misleading, ambiguous |
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Definition
| when there were several meetings: "who was present at the meeting?" |
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| misstates evidence/misquotes witness |
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Definition
Q: you hit the man didn't you?
A: yes
Q: after attacking him, what happened? |
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Term
| objectionable during jury selection |
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Definition
1. mentioning insurance
2. discussing law
3. discussing facts |
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Term
| objectionable during opening |
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Definition
1. arguing law or instructions
2. argumentative
3. mentioning inadmissible evidence
4. mentioning unprovable evidence
5. giving personal opinion
6. discussing the other side's evidence |
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Term
| objectionable during closing |
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Definition
1. misstating evidence
2. misstating law and quoting instructions (in some jurisdictions can't read instructions to jury)
3. using impermissible per diem damages argument
4. giving personal opinions
5. appealing to jury's bias, prejudice, or pecuniary interest (e.g. suggesting that deciding against governmental party will cause taxes to go up or property value to go down)
6. personal attacks on parties or counsel
7. prejudicial arguments |
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Term
| prejudicial arguments during closing |
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Definition
in personal injury:
1. argue wealth or poverty of cases
2. effect of income taxes
3. effect of judgement on insurance rates
4. appeal to jury's emotion by asking them to put themselves in party's shoes (violates "golden rule")
criminal cases:
1. D will commit more crimes if released
2. jury has moral obligation to protect society from defendant
3. defendant may retaliate personally if convicted |
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