Objections final

• Library: Objections 2014

Argumentative Question Form of Objection · The question is argumentative · Counsel is arguing with the witness General Rule A question is “argumentative” when it serves primarily to persuade the trier of fact, rather than to elicit information as by calling for a witness to agree to a conclusion proposed by counsel, or to respond with a counter-argument, or to admit or deny dishonorable or self-serving facts or motives. Argumentative questions and questioning are generally improper but may be allowed in the court’s discretion in cross-examination and with hostile witnesses.Note: Repetition of borderline argumentative phrases or challenges initially permitted, may constitute “badgering.”Examples and Legal Authority: Q. “At that time [of prior inconsistent statement], when you had sworn to tell the truth, were you telling the truth?” Q. “But you sued him anyway?” Q. “And which of those two statements [by the witness] is correct?” Q. “But you, nonetheless, expect the jury to believe you wouldn’t do such a thing?”See generally Brown v. Yettaw, 116 S.W.3d 733, 736 (Mo. App. S.D. 2003) (quoting State v. Brown, 847 S.W.2d 79, 80 (Mo. App. W.D. 1992) (“The trial court has broad discretion to disallow repetitive and harassing interrogation, to limit attacks on general credibility, and to preclude attempts to elicit irrelevant, collateral or stale matters.”)).Best Evidence Form of Objection: · Not the best evidence · Insufficient foundation as to unavailability of original or preferred form of secondary proof General Rule: Ordinarily, the terms of a document (or recording, including computer files) must be proved by the production of the original document (or recording). Note: Parol testimony of the existence or contents of a document is subject to objection, as is derivative documentation, even if from the custodian. Generally, “best evidence” is not a sound objection to a photo or other reliable record of physical evidence. Recognized Exceptions, Examples, and Legal Authority: · Certified copies of official records (e.g., statutory under § 302.312, RSMo 2000, for records of the Missouri Department of Revenue, the Missouri Department of Health and Senior Services, and the Missouri Bureau of Vital Statistics), Hadlock v. Dir. of Revenue, 860 S.W.2d 335 (Mo. banc 1993) (§ 302.312 simply alleviates the need for the original documents that would otherwise be required under the best-evidence rule; the documents may still be objectionable on other grounds); Schmitz v. Dir. of Revenue, 889 S.W.2d 883, 887 (Mo. App. S.D. 1994) · Microfilm or microfiche copies when the hard copy is not ordinarily accessible (statutory under § 362.413, RSMo 2000, for routine bank transaction records, such as deposit slips) · Duplicate originals, including carbon and manifold copies, City of Peculiar v. Dorflinger, 723 S.W.2d 424, 427 (Mo. App. W.D. 1986) · Computer printouts are deemed an admissible human-readable form of information presently or formerly stored in a computer if used in that form as business or official records or under other hearsay exception or if foundation is laid of representative extraction by a witness through a program or command, Ozark Appraisal v. Neale, 67 S.W.3d 759, 766 (Mo. App. S.D. 2002); Huffy Corp. v. Custom Warehouse, Inc., 169 S.W.3d 89, 92–93 (Mo. App. E.D. 2005) · Transcripts of audio recordings may be offered with the recording (upon proper foundation of accurate transcription), Cooley v. Dir. of Revenue, State of Mo., 896 S.W.2d 468, 470 (Mo. banc. 1995); see also K.B.C. v. Juvenile Officer, 273 S.W.3d 76, 78 (Mo. App. W.D. 2008) (but production of the recording is not required in all cases when a recording contains the proposed evidence; rather, this applies only when the proponent seeks to prove the contents of the recording itself) Recognized Circumstantial Exceptions, Examples, and Legal Authority: The terms of a document may be proved by other than its original if the unavailability of the original is shown by proof accounting for its absence—as by loss or destruction or by its being under control of another person failing to deliver after notice given to produce. Tobias v. Korman, 141 S.W.3d 468, 473 (Mo. App. E.D. 2004) (“Secondary evidence may . . . be admitted if the offering party demonstrates that the primary evidence is lost or destroyed, is outside the jurisdiction, is in the possession or control of an adversary, or is otherwise unavailable or inaccessible.”); Ousley v. Casada, 985 S.W.2d 757, 758 (Mo. banc 1999) (setting forth foundational requirements to invoke exception). The rule is inapplicable if content of writing is merely collateral (not directly in issue or not disputed)—e.g., to show the purchase price of goods in a wrongful repossession suit or population of an area in a condemnation case. The best-evidence rule has no application to proof of facts collateral to the issue. F.C. Preuitt Constr. Co. v. Doty, 536 S.W.2d 908, 914 (Mo. App. W.D. 1976). The best-evidence rule does not exclude a witness’s testimony of personal knowledge concerning facts that are also contained within the writing or recording; therefore, a person may testify from personal knowledge as to matters that appear in a document without violating the best-evidence rule. See State v. Galazin, 58 S.W.3d 500, 513 (Mo. banc 2001); Forester v. Dir. of Revenue, 85 S.W.3d 122, 124 (Mo. App. W.D. 2002). The rule does not preclude summaries of voluminous documents of which the originals have been made available to the opposing party in a timely fashion and when the competency of the originals is established. State v. Garrette, 699 S.W.2d 468, 500 (Mo. App. S.D. 1985); Ahrens & McCarron, Inc. v. Mullenix Corp., 793 S.W.2d 534, 540 (Mo. App. E.D. 1990).The rule does not apply when content is offered as admission of a party to the content of a disputed document admitted to either in court or in deposition testimony. Rule 57.07(a); Langdon v. Wight, 821 S.W.2d 508, 511 (Mo. App. E.D. 1991); Aviation Enters., Inc. v. Cline, 395 S.W.2d 306 (Mo. App. W.D. 1965). The rule does not apply when both parties stipulate to the copy of the writing. State v. Fleer, 851 S.W.2d 582, 592 (Mo. App. E.D. 1993). Calling for Narrative Response Form of Objection: · Question calls for narrative answer/response (if overruled, focus on objections as to relevance and hearsay) General Rule: Questions calling for narrative answer may be improper, but there is no ironclad rule against such testimony; therefore, the trial court has broad discretion to permit narrative responses. If permitted, the focus of the objection should be to relevance or other admissibility objections. Note: Narrative answers threaten the loss of control of a presentation through the intentional or inadvertent injection of inadmissible matter and through digression into immaterial, scandalous, or strictly emotive subjects. Examples and Legal Authority: There is no absolute rule prohibiting narrative testimony. State v. Couch, 256 S.W.3d 64, 71–72 (Mo. banc 2008), abrogated on other grounds by Mitchell v. Kardesch, 313 S.W.3d 667 (Mo. banc 2010). See, e.g.: · State v. Hardin, 581 S.W.2d 67, 69 (Mo. App. W.D. 1979) (“Even were it assumed that the question asked . . . did in some degree countenance a narrative response, no absolute rule prohibits such testimony.”) · State v. Wren, 498 S.W.2d 806, 810 (Mo. App. S.D. 1973) (“[W]hether a witness will be required to testify by specific question and answer or in narrative form[ ] is discretionary and reviewable only for abuse.”) · Frisella v. Reserve Life Ins. Co. of Dallas, Tex., 583 S.W.2d 734 (Mo. App. E.D. 1979) · State v. Knowles, 946 S.W.2d 791, 795 (Mo. App. W.D. 1997).Narrative is more likely to be tolerated: · on merely preliminary or foundational topics when the risk of error seems outweighed by the speed of coverage; or · from experienced or professional witnesses, such as police officers and medical examiners, expected to be aware of limits and able to retain focus. A question may be objectionable on this ground, although inadvertently poor in form. “What happened then?” is acceptable for peripheral matters, or with witness displaying economy of response, but it can invite a broad variety of improprieties from a witness showing an inclination to rant or wax enthusiastic.Character Evidence (Relevance) Form of Objection: · Irrelevant · Immaterial · Insufficient foundation General Rule: Proof of the existence of a character trait is generally not admissible as proof that the person engaged in conduct consistent with the trait. Examples and Legal Authority: The introduction of character evidence as proof that a party acted in conformity with that character trait is generally irrelevant in a civil trial, except that a party may impeach or contradict evidence of character brought out by the opposing party on direct examination. Williams v. McCoy, 854 S.W.2d 545, 558 (Mo. App. S.D. 1993). Commission of separate, unrelated crimes may not be admitted on either ground in criminal cases, but there are several exceptions to this rule, which are discussed below. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). Exceptions and Legal Authority: Evidence of “habit” may be admitted as going to the likelihood of consistent conduct at the time in issue when the “habit” goes to secondary or circumstantial conduct—e.g., carrying cash, chewing gum, cleaning a weapon after discharge—rather than the central culpable conduct. See State v. Young, 701 S.W.2d 429, 436 (Mo. banc 1985). Testimony of “reputation” (e.g., honesty, even temper) may be offered to demonstrate a trait of disposition relevant to noncommission of the conduct at issue, and, if put at issue by the defendant, of a trait of disposition consistent with the conduct at issue. See Marschke v. State, 185 S.W.3d 295, 307 (Mo. App. S.D. 2006); State v. Reilly, 674 S.W.2d 530, 532 (Mo. banc 1984). The defendant may offer evidence of the defendant’s own good character...