Section 20.83 Objections

• Library: Family Law Deskbook and 2014 Supp

H. (§20.83) Objections

Failure to make appropriate and timely objections to opposing counsel’s questions or exhibit offers will prevent counsel from thereafter claiming error on the part of the trial court in allowing the testimony or documentary evidence. Accordingly, the trial attorney should be constantly on guard and prepared to make a timely objection when it is appropriate. Subsequent challenges of trial court error rely on the condition precedent of a timely and appropriate objection. This author does not believe that it is appropriate to object every time an objection perhaps might be made but believes it is far more effective and appreciated by the trial court when trial objections are limited to testimony or exhibits that are critical to relevant issues.

Following are many of the more common trial objections available, along with supporting Missouri citations:

Ambiguous: Questions that have two different but reasonable interpretations are ambiguous and therefore objectionable. These questions are misleading, confusing, and inadmissible. See State v. Debold, 735 S.W.2d 23, 26 (Mo. App. E.D. 1987).

Argumentative: It is improper for a lawyer to argue with a witness during direct or cross-examination. Lineberry v. Shull, 695 S.W.2d 132 (Mo. App. W.D. 1985). Examples of argumentative questions can be found in Sprake v. Testerman, 470 S.W.2d 526 (Mo. 1971).

Counsel should clearly understand that a trial court’s sustaining an objection to an argumentative question goes only to the form of the question and does not prevent further questioning about relevant issues. State v. Whitfield, 837 S.W.2d 503 (Mo. banc 1992); State v. Moore, 882 S.W.2d 253 (Mo. App. E.D. 1994).

Assuming Facts Not in Evidence: Questions that assume facts that have not been placed in evidence before the pending question are improper. Davis v. Moore, 553 S.W.2d 559 (Mo. App. E.D. 1977); State v. Siems, 535 S.W.2d 261 (Mo. App. E.D. 1976).

It is well-settled law that cross-examinations should not be used to covertly raise suspicions and prejudice by reciting as fact matters not properly entered as evidence, such as speculative hypothetical situations. Anderson v. Wittmeyer, 895 S.W.2d 595 (Mo. App. W.D. 1995).

Authentication or Identification Lacking: Generally, evidence is not admissible until a foundation is laid to substantiate that the document or exhibit is what it actually purports to be. In other words, there must be a reasonable basis or assurance that the offered exhibit is genuine. Storm v. Ford Motor Co., 526 S.W.2d 875, 878 (Mo. App. W.D. 1975); Henson ex rel. Lincoln v. Bd. of Educ. of Washington Sch. Dist., 948 S.W.2d 202 (Mo. App. E.D. 1997).

Best Evidence Rule: Generally, the best evidence rule requires production of the original unless a reasonable basis exists for explaining why the original is unavailable and some additional assurances are provided that establish that the copy is identical to the original. See:

Ø Walton v. City of Berkeley, 118 S.W.3d 617 (Mo. App. E.D. 2003)

Ø Lewis v. Bucyrus-Erie, Inc., 622 S.W.2d 920, 924–25 (Mo. banc 1981)

Ø Schnucks Twenty-Five, Inc. v. Bettendorf, 595 S.W.2d 279, 283–84 (Mo. App. E.D. 1979)

Ø Johnson v. Moore, 931 S.W.2d 191 (Mo. App. E.D. 1996)

Beyond Scope of Examination: In civil cases, a party against whom a witness has been called and given some evidence is entitled to cross-examine the witness on the entire case, except that the defendant is not entitled to cross-examine a plaintiff’s witness concerning a counter-claim or set off pleaded by the defendant. Section 491.070, RSMo 2000. Cross-examination is not confined to matters presented during direct examination but can include matters having a reasonable bearing on the issues in the case or matters that tend to impeach or discredit the witness. Griffith v. Adair, 796 S.W.2d 443, 447 (Mo. App. S.D. 1990).

Wide latitude is allowed in the cross-examination of parties to an action who offer themselves as witnesses. The scope and extent of this cross-examination in a civil case is discretionary with the trial court. Generally, a witness may be cross-examined as to matters to which the witness testifies on direct examination. Robinson v. Empiregas Inc. of Hartville, 906 S.W.2d 829 (Mo. App. S.D. 1995).

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