If you’ve ever watched a law movie or TV show, you’ve undoubtedly seen dramatic, over-the-top, and frankly, ridiculous depictions of objections. Making objections—and learning how to overcome them—are essential trial skills for anyone taking a case to trial.
WHAT ARE OBJECTIONS?
During trial, each party may call witnesses to testify on its behalf. Each party, through its attorney, poses questions to the witness, who then answers. During testimony, any attorney may object. An objection is a request that the judge disallow a question, limit the testimony, or instruct a witness to give a complete answer to a question.
An objection—if made correctly—is made immediately after the question is asked and before the witness answers. Occasionally, objections are made to a witness’ testimony as well.
Generally, in the course of trial, the judge rules on the objection by either sustaining or denying it.
If the objection is sustained, the judge has essentially agreed that the question/answer is improper. If the judge overrules the objection, the question (or answer) may stand and the examination can continue.
Objections can be made at any time—opening statements, direct examination, cross-examination, or even closing arguments.
Objections are made primarily to: (1) exclude inadmissible or irrelevant evidence from being heard or seen by the jury; (2) disallow questions that are confusing, misleading, or abusive. The purpose of the objection is to “pause” the testimony so that the judge may rule on the admissibility of the testimony.
It is the judge’s role—not the jury’s—to decide whether a question or answer is proper.
Objections are also made to preserve issues for appeal. In most, if not all jurisdictions, objections are waived on appeal if not made at the time of trial.
WHEN NOT TO OBJECT
Caution: This article and video simulation is not legal advice, is not state-specific and may differ from the laws and court rules in your jurisdiction. Whether you are represented by an attorney or representing yourself pro se / pro per, always read and comply with the laws and court rules in your jurisdiction. Please read The Legal Seagull’s full disclaimer before proceeding.
When should you not object? This is often a difficult decision—but one that needs to be made very quickly. Even though judges tell jurors that they should not hold objections against an attorney, objecting too much may negatively impact your standing with the jury.
If the jurors sense that an attorney is making objections to suppress unfavorable testimony or evidence, they may come to view the attorney (and client) with suspicion. Moreover, repeatedly making objections can irritate jurors who do not want to see the trial go on forever.
As a general rule, good trial attorneys will hold off on making objections when the witness’ testimony is helping their case, even if there is a problematic question or testimony. They also avoid making objections when only minor, insignificant testimony is involved that does not concern the major issues of the case. To object or not to object . . . that is the question!
TIPS FOR MAKING OBJECTIONS
As soon as you know there are grounds for an objection and that objecting is in your (or your client’s) best interests, object! Remember, if the jury has already heard the witness’ answer, your objection will do little to unring that bell, even if the judge sustains the objection. Take this for example:
Attorney #1: What did the elderly lady say?
Witness: She said, “The black van blew right through the red light.”
Attorney #2: Objection! Calls for hearsay.
Judge: Objection sustained. Jury, please disregard the witness’ testimony regarding what the elderly said.
This example illustrates the importance of making objections timely. Although the jurors were instructed by the judge to disregard the significant testimony containing inadmissible hearsay, it is easier said than done to ignore something you just heard—especially when it is highly relevant to the case!
Always stand up when making objections unless the judge tells you to be seated or you have a medical problem making standing difficult or impossible.
Tell the judge briefly what the basis of the objection is. Examples may include:
Objection: Calls for hearsay.
Objection: Vague and ambiguous.
Objection: Improper character evidence.
Objection: Asked and answered.
Speak directly to the judge
You must direct your comments to the judge—not your opponent or the jury. The judge—who decides issue of law—determines whether to sustain or overrule an objection.
Do not ramble
Generally speaking, judges do not like “speaking objections” (i.e., objections accompanied by a speech from the attorney).
Here is an example of a “speaking objection”:
Attorney #1: Why did the officer pull you over?
Attorney #2: Objection: calls for speculation. This question asks the witness to elaborate on the officer’s thought process, which requires him to speculate as to . . .
Judge: Objection sustained. Counsel, please refrain from making speaking objections in my courtroom. I know the law.
If the judge wants you to explain your position or respond to your opponent’s objection, he or she will ask you to do so.
OBJECTIONS TO FORM OF QUESTION
Objections that are aimed at the structure of the question—such as the choice of words, ambiguity, or other problems with the question that make it unclear or likely to confuse or mislead the witness.
Often, objections regarding form can be overcome by simply rephrasing the question so that it is no longer objectionable.
Here are a few common examples of form objections:
When asking questions on direct examination, the general rule is that leading questions are not allowed, except for initial background questions and under limited circumstances.
A leading question is one that suggests the particular answer that the attorney is looking to elicit. Here are examples of leading vs. non-leading questions:
To learn more about leading questions and how to overcome them by rephrasing, check out Objection to Leading Question? Try Rephrasing
By contrast, leading questions are generally permitted on cross examination and when dealing with adverse or hostile witnesses.
In fact, leading questions can be very effective in cross examination because they can force the witness to answer “yes or no” questions without providing wiggle room to elaborate or explain away unfavorable facts.
Here is an example:
Asked and answered
The question has already been answered and therefore should not have to be answered a second time. Sometimes, attorneys will ask the same—or substantially the same—question numerous times to emphasize it for purposes of making it clear to the jury. This is improper.
Attorneys often attempt to mischaracterize, misstate, or “embellish” a witness’ testimony to suit the narrative they are looking to advance. For example:
Witness: She got back up and there was blood on her chin.
Attorney #1: As the blood was oozing out of her chin, did she look panicked?
Attorney #2: Objection, misstates testimony.
You see what Attorney #1 attempted to do here? The witness’ testimony mentioned nothing about “oozing”; in fact, there is no indication based on this testimony that the blood even came from the witness . . .
Calls for a narrative
Attorneys may ask open-ended questions, especially on direct examination. However, if a question is so broad that it essentially calls for the witness to give a lengthy narrative, an objection may be made.
Calls for speculation
The question asks the witness to speculate or guess as to something that is not within his or her personal knowledge. Lay witnesses (i.e., non-experts) may testify as to their personal knowledge but generally not to matters outside their first-hand knowledge.
This objection is commonly raised when the question asks the witness to interpret someone else’s state of mind. Here is an example:
Witness: A man with a glorious ponytail came in and bought a newspaper with his credit card.
Attorney #1: Why did the man use his credit card instead of paying with cash?
Attorney #2: Objection, calls for speculation.
Attorney #1: Why did the man have a ponytail?
Attorney #2: Objection, calls for speculation—and irrelevant.
Judge: Sustained. Counsel, move on.
A question is compound if it consists of two or more questions bundled into one. For example:
Attorney #1: Was Fred good at his job and well-liked by his coworkers?
Attorney #2: Objection, compound.
Judge: Sustained—can we break that down?
Attorney #1: Was the defendant good at his job?
Witness: Yes, he was.
Attorney #1: Was he well-liked by his coworkers?
Witness: No, he was actually a real jerk. His coworkers hated his guts.
The question consists of arguments, interpretation of the evidence, or recitation of facts.
This objection is often made to questions that attempt to influence the witness’ testimony by inserting the attorney’s interpretation of the evidence into the question. Here is an example:
Attorney #1: How often did you get your brakes checked prior to the accident?
Witness: Twice a week.
Attorney #1: You expect this jury to believe that you got under your car, twice a week, every week, to check your brakes?
Attorney #2: Objection, argumentative.
Harassing / abusing / “badgering” the witness
An objection for “badgering the witness” is typically made when the attorney is resorting to personal attacks and crossing the line into comments and suggestions that are insulting, demeaning, or hostile.
This tactic is sometimes done to provoke an emotional response or in the hope of “scoring points” with the jury (note: this can—and often does—backfire!). Here is an example:
Attorney #1: In fact, the whole reason you married Mr. Moneybags is that you’re a money-grubbing gold digger, isn’t that true?
Attorney #2: Objection!
Judge: Sustained! Counsel, conduct yourself professionally or I will cite you for contempt!
Objections to confusing questions are typically made when the question is unclear, ambiguous, vague, or, well . . . just plain confusing. Remember—if a question doesn’t make sense to you, it might not make sense to the witness or jury either . . .
An objection for non-responsiveness can be made by any party to a witness’ answer that does not answer the question, rambles, or gives testimony that goes beyond the scope of the question.
Attorney #1: In what year did you meet Bozo?
Witness: We’ve known each other since we were students at clown school. A lot of people don’t know that Bozo was quite the ladies’ man . . . anyway, when he got back from his second tour in Afghanistan, after his divorce, I . . .
Attorney #2: Objection, non-responsive.
Judge: Sustained. Mr. Pennywise, please answer the question.
Witness: Huh? What was the question?
Attorney #1: How long have you known Bozo?
Witness: 12 years . . . I’ve known him since the very day he won his third-straight hog-wrestling contest, and I’m telling you, no way Bozo is guilty of any of these charges . . .
Attorney #2: Objection! Non-responsive!
OBJECTIONS TO SUBSTANCE OF QUESTION
Objections to substance are directed at the information the question is seeking to elicit. Attorneys making objections to substance primarily seek to exclude testimony that is inadmissible (e.g., hearsay or certain character evidence), improper, irrelevant, or substantially prejudicial.
Here are a few common examples of making objections to the substance of testimony:
If a question is asked without first establishing that the witness has a basis to answer it (i.e., personal knowledge or familiarity with the topic), an objection may lie for lack of foundation.
This often happens when the examining attorney is going too fast and not asking preliminary questions to demonstrate the witness’ familiarity with the facts.
Attorney #1: Are you a tennis player?
Attorney #1: What percentage of a tennis ball is made of rubber?
Attorney #2: Objection, lacks foundation.
For purposes of this example, there was no testimony establishing that (1) rubber is used in the production of tennis balls; or (2) that the witness has any knowledge regarding the manufacturing or composition of tennis balls. Why would he, based on what you have just read?
Therefore, the attorney had not yet sufficiently laid a foundation for the question (in other words, she was going too fast!). Now, let’s assume that the attorney resumes her line of questioning to lay a proper foundation:
Attorney #1: Do you know what tennis balls are made of?
Attorney #1: How do you know that?
Witness: Before retiring in April, I worked as a floor supervisor at a tennis ball factory for 20 years.
Attorney #1: As part of your duties as a floor supervisor, were you involved in supervising the manufacture of tennis balls?
Attorney #1: Did you become familiar with the materials used to manufacture tennis balls?
Attorney #1: What materials are used to manufacture tennis balls?
Witness: Mainly rubber, with some wool.
Attorney #1: What percentage of a tennis ball is made of rubber?
Witness: I’d say about 85-90%.
If your opponent objects for lack of foundation, DO NOT PANIC! Catch your breath, back up a few steps, and ask the witness questions to show the court that the witness is qualified to testify about the subject you are asking about!
Assumes facts not in evidence
If a question includes a fact that has not yet been presented, it is vulnerable to an objection for assuming facts not in evidence. This objection is similar to lack of foundation, and the two are often made at the same time. Here is an example:
Attorney #1: Where were you at the time of the accident?
Witness: I was standing at the bus stop right near the southeast corner of the intersection of Main Street and 7th Avenue.
Attorney #1: What did the driver of the black van throw out of the window?
Attorney #2: Objection, the question assumes facts not in evidence. And it’s a leading question.
Here, there was no testimony prior to this question that: (1) there was a black van, (2) the witness could see the driver, or that (3) the witness saw the driver throwing something out of the window.
As with the previous example, Attorney #1 could then go back and ask additional questions to bring those facts into evidence first before asking what the witness saw the driver of the black van throw out the window.
In order to be admissible, evidence must be relevant. Although every jurisdiction may define “relevance” differently, most states define relevance similarly or identically to Rule 401 of the Federal Rules of Evidence, which provides that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”
Attorney #1: You used to date the plaintiff, Miss Andrews?
Attorney #1: Why did you break up?
Attorney #2: Objection, irrelevant!
[Conversation moves to sidebar]
Attorney #2: This is irrelevant. The reason for the break-up has nothing to do with this personal injury lawsuit.
Attorney #1: Your Honor, this is relevant to prove bias. I expect the witness to testify that he broke up with my client because she cheated on him and emptied his bank accounts. This witness has a strong bias against my client, which calls into question the veracity of his testimony. The jury should be allowed to hear about the reasons for the breakup because it shows that he is not a fair and impartial witness because of his anger and disappointment over her actions.
Judge: Sustained. The question is relevant on the issue of bias and “fair game” for impeachment purposes.
“Unfair prejudice” may be defined differently in each jurisdiction, but many states model their rules after Rule 403 of the Federal Rules of Evidence, providing that certain testimony or evidence, even if relevant, may be excluded if it is substantially outweighed by the risk of unfair prejudice to a party to the case.
The rules barring hearsay evidence (and the dozens of exceptions and exclusions) is far too complicated of a topic to discuss in this article. A short and over-simplified explanation of these rules is that an (1) out-of-court statement that is (2) offered for the truth of the matter asserted, is inadmissible . . . unless, of course, an exception or exclusion applies . . .
For more information about hearsay evidence, check out this sample video from Justice Navigator: the Ultimate Video Litigation Tutorial:
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