In order to start the process of determining the admissibility of evidence, a lawyer must make an objection. Therefore, you have to know how to make an objection. The rules for making objections are found in Rule 103 on page 29. The key language is in section (A)(1): "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and in case the ruling is one admitting evidence, a TIMELY OBJECTION or motion to strike appears of record, STATING THE SPECIFIC GROUND of objection, if the specific ground was not apparent from the context."
1) The timeliness rule -- You must object at trial at the time the item of evidence is introduced, as soon as the grounds become apparent. When the item of evidence is a question and answer, the grounds may become apparent during the question itself, in which case you make an objection to prevent the jury from hearing the answer. In other situations, the grounds may not become apparent until the witness answers the question in which case you object and make a motion to strike the evidence.
2) The specificity rule -- Your objection must be specific in three ways.
part 1. You must tell the judge exactly what you are objecting to.
part 2. You must cite the evidence rule that will control the admissibility of the evidence.
part 3. Since most evidence rules contain lots of subparts, you must identify the specific portion of the text of the rule that leads to the outcome you want.
To look at these requirements, we will use Rule 403. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
1) If grounds for objection are apparent from the question, you object to the question. E.g.: In a breach of contract case:
Q. Isn't it true that the defendant helped Michael Vick kill those dogs?
You object to the question because it asks the witness to testify to evidence in violation of Rule 403. Don't wait for the answer.
2) If grounds are not apparent from the question and do not arise until the answer, you object to and move to strike the answer. E.g.:
Q. What happened next?
A. The defendant said he was not going to deliver the widgets on time because he had to go help Michael Vick kill some dogs.
You object to the witness's testimony because it violates Rule 403, and you move to strike it.
1) First, you tell the judge what particular evidence you object to. E.g.:
Q. What happened next?
A. The defendant said he was not going to deliver the widgets on time because he had to go help Michael Vick kill some dogs.
OBJECTION: I object to the testimony about what the defendant did with Michael Vick.
2) Second, you cite the rule by number (or by name if it has a common name, such as the "hearsay rule"), e.g.
OBJECTION: I object to the testimony about what the defendant did with Michael Vick. It violates Rule 403; or
OBJECTION: I object to the testimony about what the defendant did with Micahel Vick. It is irrelevant and prejudicial.
3) Third, you cite the specific text of the rule. This is trickier than you may think. Many rules apply to several similar kinds of evidence or contain more than one concept. Rule 403 covers two concepts -- probative value and prejudicial effect, and three different kinds of prejudice -- unfair prejudice (emotion), confusion of the issues, and waste of time. You must specify which of them is implicated. Use as much of the language of the rule as possible.
OBJECTION: I object to the testimony about what the defendant did with Michael Vick. It violates Rule 403 because its low probative value is substantially outweighed by the danger of unfair prejudice.
4) Fourth, you explain whether your objection is procedural or substantive. There are two kinds of evidence rules. Some, like Rule 403, are substantive. They declare that a certain category of evidence is not admissible. E.g.,
OBJECTION: I object to the testimony about what the defendant did with Michael Vick. It is not admissible under Rule 403 because its low probative value is substantially outweighed by the danger of unfair prejudice.
Other rules are procedural and provide that evidence is admissible only on certain conditions. For example, look at Rule 602 (Appendix A-9). "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." If the condition is not satisfied, the evidence is not admissible at this time, although it may be admissible later if its proponent eventually establishes the condition. An objection based on this kind of rule would point to the procedural flaw, e.g.,
OBJECTION: I object to the testimony about what the defendant did with Michael Vick. It violates Rule 602 because no evidence has been introduced to show that the witness had personal
knowledge of the matter.
5) Fifth, if the jury has heard the inadmissible testimony, you move to strike.
OBJECTION: I object to the testimony about what the defendant did with Michael Vick. It is inadmissible under Rule 403 because its little probative value is substantially outweighed by the danger
of unfair prejudice. I move to strike it.
Any questions? E-mail me at tanford@indiana.edu and include the reference 401A.
No rule requires that you do anything to respond to an objection. You may remain silent and let the judge rule.
If you do respond, you have three choices:
1) Withdraw the evidence and apologize
2) If the objection is procedural, go back and correct your procedural mistake and then offer the evidence again. For example:
Q. What happened next?
A. The defendant said he was going to go help Michael Vick kill more dogs.
OBJECTION: I object to the testimony about what the defendant said about Vick's behavior. It violates Rule 602 because no evidence has been introduced to show that the witness had
personal knowledge of Mr. Vick's activities.
RESPONSE: I can establish personal knowledge. Mr. Witness, how do you know Vick killed dogs?
A: When I was at the dog fights the week before and saw him do it.
3) Argue for the admissibility of the evidence. If you choose this option, the same principle of specificity applies. You must tell the judge what evidence you are referring to, what rule controls the outcome, and exactly what parts of the text you rely on. There are three common arguments that the objection should be overruled and the evidence admitted.
First, you can argue that the item of evidence does not fall within the boundaries of the objection. For example:
Q. What happened next?
A. The defendant said he was going to go help Michael Vick kill more dogs.
OBJECTION: I object to the testimony about what the defendant said about Vick's behavior. It violates Rule 602 because no evidence has been introduced to show that the witness had
personal knowledge of Mr. Vick's activities.
RESPONSE: The witness testified to what the defendant said, not to anything specific that Vick did, so Rule 602 has no application here.
Second, you can argue that the admissibility of the item of evidence should be determined by a different rule than the one invoked, and that different rule provides that the evidence is admissible. For example:
Q. What happened next?
A. The defendant said he was going to go help Michael Vick kill more dogs.
OBJECTION: I object to the testimony about what the defendant said about Vick's behavior. It violates Rule 602 because no evidence has been introduced to show that the witness had
personal knowledge of Mr. Vick's activities.
RESPONSE: The witness testified to what the defendant said, not to anything specific that Vick did, so this is a question of hearsay, not personal knowledge. Rule 801(d) provides that the
statements of a defendant are admissible.
Third, you can argue that the item of evidence falls within an exception to the rule cited in the objection. There are 3 kinds of exceptions.
a) EXPLICIT: They may be explicitly included in the Rule itself. See, e.g., part (b) of Rule 412.
b) IMPLICIT: They may be implicit. Rule 403's use of the term "substantially outweighs" suggests that if relevance and prejudice are evenly balanced, exclusion is not appropriate and the testimony should be admitted.
c) EXTRINSIC: Exceptions may be found outside the Rules of Evidence, having been created by the legislature or the courts as matters of public policy, e.g., a broad exception holding that the rules of
exclusion do not apply in child sexual abuse cases and evidence of prior acts of child abuse are admissible regardless of the level of prejudice..
Any questions? E-mail me at tanford@indiana.edu and include the reference 401B.
When an objection has been made, the judge must rule on it. Most judges do so without hearing argument. The judge may make one of two rulings:
Sustain. If the judge sustains the objection, the evidence is not admitted.
Overrule. If the judge overrules the objection, the evidence is admitted.
If you lose an objection and your important evidence is excluded, you must make an offer of proof that places the substance of the excluded evidence into the record if you want to appeal the ruling. (Recall our earlier discussion of the low likelihood of such appeals, however).
* complicated version. The jury is removed from the courtroom, and the witness is questioned exactly as if the jury were present.
* simple version. The attorney submits a written or oral summary of the excluded evidence out of the hearing of the jury.
Any questions? E-mail me at tanford@indiana.edu and include the reference 401C.