Do you like watching legal TV shows like “Law and Order” or “The Good Wife”? Are you obsessed with the latest public trial on TV? Read on and get a clearer picture of what they’re objecting to and why.
Involved in a court case? Whether you’re using a lawyer or representing yourself pro se, it is imperative that you get to know the basics of objections in court. One opportune objection can turn a lose into a win. Proper objections on the record can also make a strong case for appeal, which helps keep the judge in line and following the rules.
It’s no secret that attorneys and judges can break the rules all day. They do so to your detriment, unless you make timely objections. Miss-statements and presumptions can quickly become evidence on record, unless you make objections and make them effectively.
Objections that can be used whenever someone is giving testimony - whether during a deposition or other discovery, or as a witness in a trial. Some objections also apply to motions, depositions, interrogatories, requests for production, requests for admissions, subpoenas and other papers, as well as the submission of evidence.
An objection has three purposes:
- If sustained, the objection stops the other side or the judge from breaking the rules. The main reason attorneys try to break the rules is to get something into the court that would otherwise be inadmissible according to the rules of evidence. The judge may try to break the rules if he has a favor to pay or a bias that he wants to foster. Timely objections can ensure that no evidence gets into the court except that which has been properly submitted to, and accepted by, the court ahead of time.
- If overruled or ignored, the objection is on the record for consideration by the court of appeals. The appellate court can only re-consider your objection if it is already on the record in the lower court. A successful appeal is only possible if there are errors on the record that hurt your case.
- If you keep putting the judge’s errors, and overstepping of rules and law on the record, he will start behaving. The judge knows that too many errors on the record will make a strong case for appeal; and judges don’t like to be appealed.
Timing is critical. If you’re on your toes with objections, you can prevent much unwanted testimony from ever being heard. As soon as you recognize that a question requires an answer that would overstep a rule, interrupt with: “Objection, Hearsay” (or whatever the grounds are). Get it out quick enough and the question will never be answered.
If you hesitate and the objectionable testimony gets heard, you can still get it stricken from the record - but the jury cannot strike it from their memories.
You can object to anything that doesn't seem right - on the part of the other side, or even what the judge says or does. You can even object to objections. Normally, one should have the grounds and the rule to support the objection. However, if you don't know the grounds at the time, you can still object stating that you can't think of the grounds right now, but that “this just isn't right”. Common sense is the basis for common law, and is (or was) the basis for the judicial system, and so it must be considered. Also, there is a Maxim of Law that says “Equity regards substance rather than form.” This means common sense prevails over procedure and the letter of the law. The idea is to get the objection on the record before the right to object is considered waived.
In a moment of doubt, it is best to object. A note of caution, however, you could be seen as ‘crying wolf’ if you make too many frivolous objections.
Be aware that trying to speak nicely could nullify your objections. Statements such as “Defendant wishes to make a record of its objecting to plaintiff’s ...” or “I want to object to ...” are ineffective. The judge is not obligated to consider wishes or wants, and he might just ignore such statements. But he must rule on objections. “Defendant objects” or “I object” or “Objection, your Honor”, along with the grounds for objection, is effective.
If the judge ignores your objection, you can make a verbal motion for the court to rule on the objection. “Your Honor, I move the court to rule on my objection of ...” If he still doesn’t rule, this puts it on the record that the judge did not simply fail to hear the objection, but that he refused to rule on it. If you want to make this even more clear, you can object to the court’s refusal to rule on the objection. The scriptural principle of “two witnesses” applies here - if you’ve said something twice, it’s on the record. (Yes, the judicial system does have a remote tie to the Bible, although it's quite twisted.) If you object and the judge ignores it and you say nothing, your silence can be considered as your acceptance of his implication that your objection was irrelevant.
Overruled or ignored objections at times need to be renewed. This assures they are on the record for appeal. The objection can be renewed at each new question that is objectionable based on the same grounds. Other times to renew are at the close of each side’s presentation, and before the jury retires to deliberate. This makes a clear record that the judge had more than one chance to rule. Again, the principle of two witnesses comes into play. Failure to renew your objection may waive your right to raise the issue on appeal.
If you’re using an attorney, you’ll want to make sure he objects immediately to everything that isn’t right and is detrimental to your case. If you pay attention, you may catch some things that he doesn’t. If he misses an objection, jab him. If he still doesn’t speak up, you can stand up and raise the objection yourself. “Objection, your Honor. Council is Testifying.” (Or whatever the objection is.)
Whether you’re using an attorney or not, you’ll drastically increase your chances of winning if you get to know the following common objections:
Asked and Answered
When examining a witness or deponent, a lawyer may try to overemphasize a point in his favor by asking the same question a few times, but worded differently. Or he may be trying to intimidate the witness (see Badgering below). But he only gets one answer to the same or similar question - if you say “Objection, Asked and Answered.”
This is powerful tactic that is commonly used, but it is not allowed if you object to it. Badgering is defined as unnecessary verbal attack on the witness, or abusive, insulting or intimidating questions. A Lawyer might try badger a witness in order to discredit him or to scare him into giving more information than is required, or even false information.
Best Evidence Rule
The Best Evidence Rule can be a powerful tool when you apply it to written documents that the other side tries to enter into evidence. You can demand to see and inspect an original, not a copy, pursuant to rule 1002 of the Federal Rules of Evidence (most state rules follow suit). If the court allows an exception because the original is said to be lost or destroyed, you can demand to know the details of the circumstances, such as why, when, where, how and by whom was the original destroyed or lost.
If the other side gives some excuse such as “Oh, it’s in my clients safe at the branch office in Montana”, you can renew your objection and demand that either the original be produced, or the copy be excluded under the Best Evidence Rule. In this case it would be good to read up on the exceptions to the Best Evidence Rule that are allowed in your State.
This rule also applies if a witness is asked to tell what a certain document says. You can say “Objection, Best Evidence Rule”. If you don’t say it in time, you can demand that the witness’s testimony regarding the document be stricken from the record and the original document be produced as evidence instead. If your opponent says that that is not possible, you can demand that he answer as to who, when, where, how and why the original, or even a copy is not available.
Also an attorney might ask a witness to read from a document. His purpose might be to twist the meaning of the document or badger the witness. In any case “Objection, Best Evidence Rule” or “Objection, document speaks for itself” will prevent it.
Anyone testifying to a fact must have first-hand knowledge of that fact. He must have gained the knowledge by observing it with his own five senses of see, hear, touch, taste or smell.
Competence can be questioned when a visually impaired person testifies as an eyewitness, a hearing impaired person testifies to hearing something, or if the witness was drunk at the time. Other conditions can also validate an objection for competency. For example, if an event was supposedly witnessed on a moonlit night, but meteorological records say there was no moon that night. A witness lacks competence to see if there was no light.
The one testifying must also have sufficient mental faculties so as to be reliable and competent. If you object as to Competence due to mental deficiencies, you may cause yourself more work to enforce it, but at least your objection is on the record for potential appeal if the testimony becomes pivotal to your case.
Counsel is Testifying
You can have fun with this one! Attorneys will try to interject their own thoughts and ideas into the case. But if he is speaking from his own knowledge, he is “testifying” as a witness. Attorneys are not allowed to testify. If the opposing attorney starts to make a statement based on his own knowledge, you can stop him mid-sentence. “Objection, council is testifying!” The sooner the better if he’s saying something you’d rather not have on the record.
If he keeps on trying to testify, you can have even more fun. You can move the court (verbal motion) to put him on the witness stand and swear him in so you can cross-examine him as to the source of his knowledge. If he does this, he can no longer act as attorney in the case, so he has no choice but to shut up. Bar rules prohibit anyone from being a witness and an attorney in the same case.
Another option would be to move the court to find that the attorney is testifying as a witness for the opposition. If the court so rules, you move the court to remove him as attorney, stating the pertinent bar rule.
Even more audacious is an attorney who is testifying based on someone else’s knowledge. In this case, not only “Council is testifying” applies, but he adds “Hearsay” to his problems (see Hearsay below).
Note, the judge does usually allow attorneys to make statements during opening and closing “statements”; however any statements must be based on facts that have already been entered into evidence. If not, you can use “Objection, Facts Not in Evidence” (see below).
Facts Not Established
This is a tricky way of getting un-established facts onto the record - by hiding presumptions inside a question. For example, the question “When did you quit drinking?” makes two presumptions: 1) that the witness used to drink, and 2) that the witness has quit drinking. This question is valid only if it has already been established that the witness used to drink and has quit. Otherwise it’s “Objection, Facts Not Established.”
This can be critical. If this question is allowed to be answered, the drinking and the quitting can become established fact by un-rebutted presumption.
If you object, the attorney will have to start over and ask “Did you drink in the past?” and then “Did you quit drinking?” in order to get those facts established first. Only then, after yeses to both, can he ask "When did you quit drinking?" But doing it this way, he might not get the answers he wants.
Facts Not in Evidence
If an attorney has few if any facts or witnesses on his side, he may not want to let that stop him from winning his case. He’ll sneak his “facts” into motions and other submitted papers, hearings, depositions and the trial. He knows he has a weak case and tries to “prove” his case by clever legal arguments supported only by his own version of the facts.
But, with proper objections, the only facts up for discussion in court are those that have already been properly introduced as admissible evidence (including prior witness testimony). If an attorney starts to bring in unsupported facts, you can stop him with “Objection, Facts Not in Evidence.” “Council is Testifying” may also apply.
Hearsay is one of the many words that has been given a legal definition quite different from the common meaning. Everyone knows the common meaning. It is simply a statement that is being related or repeated by a second person.
Here is the legal definition of hearsay: An out-of-court statement offered to prove the truth of what it, itself says.
Notice that there are two conditions to be met in order for the Hearsay objection to be valid:
- The person who made the statement is not currently in the court and available for cross-examination. (A statement made outside the court by someone who is now in the court is not hearsay because the person is available for questioning.)
- The statement is being used to prove the truth of what it, itself says. For example, an affidavit is normally hearsay, because the affidavit is being used to prove what the affidavit says, and the writer (affiant) is not in the court. However, an affidavit is not hearsay if it is being used to prove something outside of the statements in the affidavit. For example, an affidavit is not hearsay if it is being used simply to prove that the affiant was alive on the date it was signed and notarized.
Hearsay is not allowed as testimony in court. However, there are some exceptions. The idea for the exceptions is that there are special circumstances that can substantially increase the deemed reliability of an out-of-court statement, such that the need for cross-examination of the one who made the statement can be waived. It has nothing to do with the reliability or competence of the in-court witness who is relating the statement.
The exceptions vary by jurisdiction, so you may need to check the local rules for specifics. Here are three examples of exceptions to the Hearsay Rule:
A statement made by a person who believes his death is imminent, is deemed to be sufficiently reliable for a witness to relate in court, and not be considered hearsay. The statement must be in regards to the cause of his death or perceived imminent death. His statements regarding other matters are still hearsay.
Statement Against Interest:
The idea is that when people lie, they are virtually always doing so for the benefit of themselves. So if someone makes a statement that is definitely against his own interest, then he is most likely doing so because he is being honest, and the statement can be related by someone else in court.
If someone is under great emotional distress such as fear or shock, and they make a statement that is related to the cause of the distress, it is deemed to be sufficiently reliable for someone else to relate the statement as evidence in the court. A simple example would be someone jumping up and screaming “It’s a snake!”
If these exceptions don’t seem logical, you’re not the only one who looks at it that way. But those are the “rules”.
An attorney is not allowed to lead his own witness to answer in a certain way. For example, “Isn’t it a fact that you were standing on the corner of Fifth and Main at the time of the accident?” is a leading question. He would have to ask “Where were you in January 1, 2013 at 12:15 PM?”
This does not apply when the attorney is questioning a witness for the other side (cross-examination).
If an attorney leads his own witness, a loud and forceful properly timed, mid-sentence, mid-word, “OBJECTION, LEADING” can also serve to break the train of thought and frustrate the opposing attorney - forcing him to re-think and re-formulate his line of questioning.
Outside the Pleadings
The pleadings include the Complaint, Defendant's Answer with Affirmative Defenses, and Plaintiff's reply to Affirmative Defenses. Both sides have opportunity to raise issues during the pleading process. But once the pleadings are closed, they are sealed and can't be added to. Any issues not mentioned in the pleadings are not up for discussion in the remainder of the case.
“Objection, Outside the Pleadings” can be a very powerful if you read the pleadings carefully and look for what’s NOT there.
Prejudice has more than one legal definition, but in this case the common meaning is being used, that of a pre-judging. It refers to the tendency of a judge or jury to lean towards a (pre-trial) judgment. This prejudice can be caused by mentioning something in court that has high emotional content, even though it may otherwise be considered admissible evidence. Just the mentioning of it “prejudices” the court, due to the emotional aspect.
Evidence can have both a prejudicial effect (tendency to cause a pre-judging) and a probative value (value as proof). If the prejudicial effect is larger than the probative value, then “Prejudice” is a valid objection.
For example, bloody photographs of mangled limbs may be considered prejudicial if hospital bills and expert testimony is available. However, if the bloody pictures are the only evidence available, the probative value would likely outweigh the prejudicial effect.
There are circumstances where a person cannot be required to testify. There are also circumstances where a person can prevent another from testifying. These are called “Privileges”. Any question that requires a witness or deponent to overstep a privilege can be objected to.
With Spousal Privilege for example, a husband may (depending on the jurisdiction) have the right to not testify against his wife. Also, even if he wanted to testify against her, she may have the right to prevent him from doing so.
The Attorney-Client Privilege is more one sided, however. The privilege belongs to the client, who can prevent an attorney from testifying against him. But, if the client chooses to waive the privilege, the attorney can be required to testify - even if it damages the attorney. (Of course, an attorney representing someone in the current case cannot testify at all, since he can’t be attorney and witness in the same case, as mentioned in “Council is Testifying” above.)
The various privileges arise from state law, federal law and even the Constitution. Most privileges require there to be a reasonable expectation that the communication was made in confidence and would not be spread to third parties. For example, a husband and wife talking where others are in the same conversation would not qualify. Here are some additional common privileges:
Fifth Amendment Privilege:
The right to not testify as to facts that might tend to incriminate yourself.
“No person shall … be compelled in any criminal case to be a witness against himself” (Constitution of the United States of America, Amendment V)
This applies to criminal cases only, not civil. But it does apply to potential criminal cases - something that might tend to incriminate you. Also, it applies only to that which might tend to incriminate you. You may still have to testify to other matters.
It does not apply to any requirement to testify as to other matters that would not tend to incriminate you.
Generally, a licensed psychotherapist or a worker at a licensed mental treatment facility can be prevented from testifying against the patient. There are several requirements and exceptions that vary for different jurisdictions, so if this one is pertinent to your case, you may want to do some research on it.
A member of clergy or minister of a religious organization can be prevented from testifying against a member of the church or organization. The communication must have been made in the nature of spiritual counsel or advice.
An accountant can be prevented from testifying against his client. Depending on jurisdiction, the accountant may need to be a certified public accountant (CPA) in order for the privilege to qualify.
So if a witness is asked a question which seems to overstep a privilege, you can say “Objection, Spousal Privilege” or whatever privilege applies.
Witness qualifications are abused regularly in the courts, and quite often it goes unchecked. If you’re on your toes with Qualification objections, you can prevent much unwanted testimony from ever being heard. There are two categories of qualification for a witness:
- Lay witness
- Expert witness
A lay witness is not allowed to give opinions. He can only be asked testify based on his own personal first-hand knowledge. He has to have perceived it through one of his five senses. And if what he perceived was a communication of someone else, he can’t even testify to that because it would be hearsay.
If a lay witness is asked “Did your grandmother have the flu?” you could say “Objection, the witness has not been qualified as a medical expert” or simply “Objection, Qualification.” He can’t answer as a lay witness either, because the flu virus is beyond detection of the five senses.
An expert witness must be pre-qualified as such by the court. This includes a session, outside of the hearing of the jury, in which both sides examine the credentials of the witness through questioning. The expert will be qualified to give opinions only in his area of expertise.
Depending on the question, an expert witness can at different times, be testifying as a lay witness or as an expert. When he’s testifying as an expert, he’s allowed to give his opinions that are within his area of expertise. When he’s testifying as a lay witness, he is has the same limitations as any other lay witness - personal first-hand knowledge only, no opinions. The following examples will help illustrate.
If a civil engineering expert witness is asked for his opinion on some computer software, you could say “Objection, outside of his Qualifications.” (Computer software is outside of his expertise of civil engineering.)
If he is asked “What kind of noise did the building make as it fell?” … “Objection, Qualification.” This is not a question for an expert witness - it doesn’t require an expert opinion. It requires perception of one of the five senses, so he would be answering as a Lay Witness. He can’t answer this if he wasn’t there himself to hear the noise.
An attorney may try to bring in issues that have little or nothing to do with the case at hand. His motive could be to divert attention from the important facts, confuse the issues, add time that he gets paid for by the hour, or just to add some humor hoping he will be better liked by the judge or jury.
If the testimony being requested would have no bearing on the issues in the case, you can object for Relevance. Most likely the irrelevant testimony will not help your case.
Often a witness is asked what he thinks someone else was thinking or feeling. No one can know what someone is thinking or feeling, except the person doing the thinking or feeling, and so such testimony is not allowed. This also applies to questions about attitudes and motives. For example “What was Mr. Jones trying to prove by pounding on the table?” should bring on “Objection, Calls for Speculation” if you don’t want that testimony being herd.
Objections to Objections
Yes, you can even object to objections. “Speaking Objections” is a common one. If the other side makes an objection, regardless of the grounds or validity, and then continues speaking using the opportunity to interject his own thoughts and ideas into your line of questioning, you can interrupt with “Objection, Speaking Objection” or as the defense attorney in the Jody Arias trial said “Your Honor …. and can we not have speaking objections?”
Here is an example line of questioning that shows the power of objections in court:
An attorney “Aty” is questioning his own witness, trying to establish that Mrs. Jones has lung cancer. The opposing attorney “Opp” is properly and successfully objecting. The following applies to a lay witness as well as an expert witness, since all these questions require the witness to answer as a lay witness:
Aty: “Does Mrs. Jones have lung cancer?”
Opp: “Objection, Qualification - the witness has not been qualified as a medical expert.”
(Lay witnesses cannot give opinions.)
Aty: “Do you know if Mrs. Jones has lung cancer?”
Opp: “Objection, Qualification - the question goes beyond personal knowledge.”
(The lay witness could not have possibly perceived lung cancer through his five senses.)
Aty: “Did Dr. Smith tell you that Mrs. Jones has lung cancer?”
Opp: “Objection, Hearsay”
(He would have to bring Dr. Smith to get the answer to that.)
Aty: “Have you seen a written diagnosis about Mrs. Jones having lung cancer?”
Opp: “Objection, Best Evidence Rule.”
(The document speaks for itself better than a witness - produce it.)
Aty: “Was Mrs. Jones thinking that she had lung cancer?”
Opp: “Objection, Calls for Speculation.”
(The witness can’t know what someone else was thinking.)
Aty: “Isn’t it true that you heard Mrs. Jones coughing a lot?”
Opp: “Objection, Leading.”
(An attorney cannot lead his own witness.)
Aty: “Are you an inconsiderate bumbling idiot when it comes to the health of Mrs. Jones?”
Opp: “Objection, Badgering.”
(This question is worded in such a way as to insult and intimidate.)
Aty: “C’mon, everyone knows that Mrs. Jones had lung cancer.”
Opp: “Objection, Council is Testifying.”
(The attorney would need to swear in and get on the witness stand himself.)
Aty: “Do you know what Mrs. Jones was doing to try to cure her lung cancer?”
Opp: “Objection, Facts Not in Evidence.”
(This question presumes that Mrs. Jones had lung cancer, which is not on record.)
Notice, the attorney never did get anything on the record about lung cancer. He objected right after (or maybe even during) each question, before an answer could be given. The witness never said a word.
If you’re using an attorney, and he's not making these objections in a timely manner, you can poke and prod him to do so. If he still doesn't, you may want to consider getting a better lawyer.
Further Information and Research
For more information, including litigation options, strategies, and resources for free on-line research, see the article I’ve Been Served with a Summons! What Can I Do? It also contains a success story of the case I won against Charter One Bank - using the tips, tricks and tactics in this Self-help Study Course.
If you're involved in a serious court case, remember that litigation is like a game - being played in a court. Words are bounced back and forth instead of a ball; the judge is the referee. You can follow the losing path of least resistance like most people do - or you can use winning strategies. For example, you can choose to:
- Answer the complaint - or instead respond with a flurry of motions, one of which may get the case dismissed.
- Answer the discovery - or instead respond with objections and/or statements such that there ends up being little or no discovery.
- Go to the trial - or instead establish a winning record that will get the case dismissed, or at least bring on an acceptable pre-trial settlement.
Using a Lawyer
Disclaimer: The above is not legal advice, but rather a summary of public rules for informational purposes. If you desire legal advice, you may want to consider that, according to the legal encyclopedia Corpus Juris Secundum, Volume 7 Sections 2, 3, by using an attorney you are declaring yourself to be among the "Infants and persons of unsound mind". Anyone using any of the above ideas or concepts in litigation does so at his own risk, and may wish to do his own research.
© 2013 A Little TRUTH
Hutch on November 18, 2018:
Awesome basic info! Gives one a look inside procedures that seem often overlooked, or ignored.
Thanks for a common sense approach for a layman!
Mek Hepela Kamongmenan from Port Moresby, Papua New Guinea on February 09, 2018:
Powerful and inspiring article.
DSmizzle from Long Beach, New York on April 20, 2014:
Yeah I understand when you put it like that.
A Little TRUTH (author) on April 19, 2014:
Glad to hear you're keeping things straight with your objections, DSmizzle. Yes, a client making an objection would not be good, but it's his head that's on the chopping block. In the case where a client has a lousy attorney who is letting the other attorney or the judge get away with stuff, and it's detrimental to his case - he has a choice to speak up or potentially lose the case.
DSmizzle from Long Beach, New York on April 10, 2014:
A Little Truth - I enjoyed this and agree with a lot. But in my experience, encouraging clients to male their own objections during a trial is unprecedented and a potential nightmare! I don't have to worry about that, though, because at trial I am a tota, OCD freak about objecting whenever doing so is not frivolous.
A Little TRUTH (author) on October 17, 2013:
Thanks much, Benjamin. I'm glad to have provided some useful info.
Benjamin Chege on October 17, 2013:
Hi A Little Truth. I find the hub extremely informative, especially to people who go to court without lawyers. It is good to know there are legal ways of evading incriminating testimonies from being considered or heard in court. Voted up, useful and interesting. Will also share it with my friends. Great job.