Chapter 6 - 6.3 Objections To Content

• Jurisdiction: Virginia

6.3 OBJECTIONS TO CONTENT

6.301 Asked and Answered.⁶ This objection is proper when the question has been asked and answered. It may be that the evidence being elicited is now cumulative or that opposing counsel is badgering the witness, and these reasons may also be stated.

Objection: Asked and answered—the question is cumulative.

Reply: This question is on a different issue.

This is an attempt to:

• Refresh memory.

• Clarify.

• Lay a foundation for impeachment.

• Illustrate something about the witness's prior testimony.

• Show bias.

Discussion: This can be a dangerous objection because, if sustained, it can shut down the examination of the witness. Potential ways to deal with this objection if sustained are:

• Break the question down into smaller time units;

• Break the question down into smaller logical units; and

• Ask the question as a negative.

Objection: Asked and answered—counsel is badgering the witness.

Reply: Some leeway should be permitted since this is cross-examination.

Discussion: If examining counsel argues that the question is on a different issue, he or she should be prepared to frame the new line of inquiry that is being pursued. On redirect counsel should be especially ready to make this objection.

6.302 Competence of Witness. Everyone is presumed to be competent to testify, and this presumption applies in criminal and civil cases alike.⁷ The burden is on the person objecting to the witness's testimony to show by a preponderance of the evidence that the witness is incompetent.⁸ objections that go to the competence of a witness may be called for in a variety of circumstances.

The objection may apply to a child or other person of diminished mental capacity.⁹ In Virginia, there is no minimum age below which a child is deemed incompetent to testify. The court will generally voir dire a child witness to ensure that the child understands the duty to tell the truth, has the ability to observe and remember the facts of the event, and possesses adequate communication skills to convey the information at trial.¹⁰

A witness may also be incompetent because he or she fails to understand the duty to tell the truth. Especially with younger witnesses, however, the fact that a child is not able to describe the purpose of the oath is not dispositive if counsel can show that the child understands the duty to tell the truth in court.¹¹ The credibility of a witness is not normally subject to objection because credibility is a determination for the fact-finder and not a matter of law.¹² The credibility of an otherwise competent witness may be attacked on cross-examination.

Testimony may be barred by the Dead Man's statute. Uncorroborated testimony may not be sufficient to support a verdict if this statute applies.¹³ The witness may actually be dead or simply under some form of incapacity that prevents testifying. The statute prevents judgment from being entered against the incapacitated party when the only testimony available is uncorroborated and comes from an adverse or interested party. Whether the adverse party testifies or not, the statute permits "all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter at issue, [to] be received as evidence in all proceedings including without limitation those to which a person under disability is a party." If authenticated by a person other than the author, an entry authored by an adverse or interested party contained in a business record may also be competent evidence for corroboration of that party's testimony.¹⁴ The only limitation to the statute's protection is that it does not apply to a party incapable of testifying due an intentional self-inflicted injury.

The witness has refused to take an oath or affirmation.¹⁵ Because this is a prerequisite to allowing a witness to testify, it should bar evidence from that witness.

The witness has no personal knowledge.¹⁶ This is essentially a lack of foundation or a hearsay objection.

The witness is offering an opinion. Lay witness opinion evidence is, however, not always subject to objection. A lay witness (as compared to an expert) is permitted to offer opinion evidence if it is reasonably based upon the personal experience or observations of the witness and will aid the trier of fact in understanding the witness's perceptions.¹⁷ Lay opinion evidence may relate to any matter, such as sanity, capacity, physical condition, the speed of a vehicle, the value of property, identity, causation, time, the meaning of words, similarity of objects, handwriting, visibility, or the general physical situation at a particular location. However, if the witness can conveniently relate the facts in a manner that will provide the trier of fact with an adequate understanding of the issue, the witness's opinion based on those facts is unnecessary and therefore inadmissible.¹⁸ Although a lay witness is permitted to testify regarding any matter upon which he or she has personal knowledge,¹⁹ lay witness testimony that amounts only to an opinion of law is inadmissible.²⁰

In general, no judge or other court personnel is competent to testify in any criminal or civil proceeding as to any matter that came before him or her in the course of official duties. But court personnel are competent to testify in any criminal proceeding wherein the defendant is charged with perjury or pursuant to the provisions of Virginia Code section 18.2-460 or in any proceeding authorized pursuant to section 19.2-353.3, and judges or other court personnel, who are victims of crime, shall not be incompetent solely because of such office to testify in any criminal or civil proceeding arising out of the crime.²¹ Nothing in Rule 2:605(b) precludes otherwise proper testimony by a clerk or deputy clerk concerning documents filed in the official records.

A juror may testify only as to questions regarding extraneous prejudicial information improperly brought to the jury's attention as a result of conduct outside the jury room or whether any improper influence was brought to bear upon any juror from a source outside the jury room.²² Upon inquiry regarding the validity of a verdict or indictment, a juror is precluded from testifying as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon any juror's mind or emotions as influencing any juror to assent to or dissent from the verdict or indictment or concerning any juror's mental processes in connection therewith.

Objection: The witness is incompetent to testify.

Reply: All people are presumed to be competent to testify.

Objection: The witness does not understand the duty to tell the truth.

Reply: Credibility is not subject to objection. Counsel can cross-examine to reveal this. This objection invades the province of the finder of fact.

Objection: The witness has no personal knowledge of the facts testified to.

Reply: Allow counsel to voir dire or offer to lay a foundation on the witness's ability to observe and recall the information.

6.303 Cumulative Evidence.²³ Relevant evidence may be excluded if the evidence is needlessly cumulative,²⁴ namely, it is merely repetitive and adds nothing new.²⁵ When multiple witnesses are each giving the same testimony or when evidence is in support of the same facts, this objection is proper.

Objection: Testimony is cumulative.

Reply: The testimony is offered for a different purpose.

Discussion: Counsel offering apparently cumulative evidence should anticipate this objection and be prepared to tell the court what the different purpose is.

Offering testimony from multiple witnesses who have heard different comments made by a party, all of which are relevant, however, may not be cumulative.

6.304 Failure to Comply with Court Order or Discovery Requests. This objection can be made if matters prohibited by an order in limine are mentioned. Such evidence is subject to a motion to strike, and, at a minimum, the court should give a cautionary instruction. The objection could also be made when the evidence or exhibit offered, or the matters mentioned, are subject to a protective order or were related to items or answers requested but not produced by the opposing party during discovery.²⁶

6.305 Hearsay Generally. The hearsay rule prohibits the admission of evidence of an out-of-court statement offered to prove the truth of the matter asserted in the statement. The out-of-court statement may include verbal assertions or nonverbal conduct if the conduct is intended as an assertion by the actor, such as pointing to where something could be found or producing an item in answer to a request.²⁷ Counsel should be alert either to make the appropriate objection or to defend the admission of these types of assertive conduct. Other examples of conduct that may qualify as hearsay are flight, attempting to avoid detection, refusal to take a test, giving an evasive response, or remaining silent when one would not be expected to be silent.²⁸ Evidence is admissible if it is relevant to an issue in a case and is not precluded by a specific rule,²⁹ and the failure to raise a hearsay objection to otherwise relevant testimony waives the objection. Hearsay evidence that is admitted without objection may be properly considered and given its natural probative effect.³⁰

In a criminal case, if hearsay is "testimonial," it is barred under the Confrontation Clause unless the witness is unavailable and the defendant had prior opportunity to cross-examine.³¹

At trial, the party opposing the admission of particular evidence on hearsay grounds generally has only the duty to object that the evidence is hearsay; it then becomes the duty of the proponent of the evidence to establish its admissibility under an exception to the hearsay rule.³² However, if the trial court admits the evidence without explanation, the opponent must articulate the basis for his or her objection with specificity to...