Trial Objections

• Publication year: 1995
• Pages: 25
• Citation: Vol. 8 No. 9 Pg. 25

Trial Objections Vol. 8 No. 9 Pg. 25 Utah Bar Journal November, 1995

Stephen B. Nebeker, J.

INTRODUCTION

At trial, counsel will confront testimony under oath and writings offered to prove the existence or non-existence of a disputed fact. Utah R. Evid. 401, 402.

Under our adversarial system it is each party's obligation to object to improper evidence. To challenge inadmissible evidence there must appear of record either:

• an objection timely made on the specific ground;

• a motion to strike;

• an offer of proof. Utah R. Evid. 103(2). Absent such challenge the error in admission of such evidence is waived. Utah R. Evid. 103. Waiver may occur by failure to object; an untimely objection; or an objection that fails to state a specific and proper ground.

Of all the things you do to get ready for trial, your efforts to shape the case by offering and objecting to evidence are among the most important. This article is a quick reference source for objections and motions challenging admissibility. There are some preliminary comments about foundations and objections generally, and sample offers and objections follow. The types of evidence and objections are listed in alphabetical order. The code references are to Utah Rules of Evidence.

MAKING OBJECTIONS

There are many reasons for making objections: to exclude improper evidence; to make a record for appeal; to protect one's witness from harassment or embarrassment; to expose the opposing party's unfair tactics; to prevent confusion of the jury; and to streamline the interrogation. Utah R. Evid. 403.

Good reasons for not objecting are: Danger of alienating the trier of fact; danger of highlighting harmful evidence; where the harm threatened by the evidence is negligible; and where reversal on appeal is unlikely. Note: The consequence of allowing inadmissible evidence to be received without a timely objection is that the error is waived and may not be used as a basis for a new trial or an appeal. Utah R. Evid. 103; Board of County Commissioners v. Ferrebee, 844 P.2d 308 (Utah 1992).

When counsel has decided to object, make sure to state the specific ground for the objection. Utah R. Evid. 103. Additionally, objection to inadmissible evidence must be made at the earliest opportunity. This means at the time it is offered in evidence. State v. Schreuder, 726 P.2d 1215 (Utah 1986); Szarak v. Sandoval, 636 P.2d 1082, 1084 (Utah 1981). Opposing counsel may not speculate on obtaining a favorable answer to an improper question and then object after the answer proves unfavorable. Counsel is not expected, however, to object to a question before it is answered if it is not apparent until the answer that the evidence is inadmissible. On hearing the answer, counsel must immediately move to strike the evidence. (However, in State v. Velasquez, 672 P.2d 1254, the court found a motion to strike is not an adequate substitute for an objection.)

The rules for objecting may create the impression that objecting is something you do only at trial. However, even before trial you may object to evidence through a motion in limine. Objections outside the presence of the jury before trial should be carefully considered. If you must object at trial, only do so if it is worth it. When objecting at trial, be polite, since you are interrupting when someone else is speaking. Do not take the objectionable questions or answer personally. If jurors can see that you have a good reason for objecting it minimizes any lessening of your credibility.

Occasionally, in the objections set forth below, it is suggested that counsel first approach the bench before making an objection. This is particularly true of objections seeking to exclude evidence where the jury might draw significant inferences from the making of the objection.

OBJECTIONS TO THE FORM OF THE QUESTION

Argumentative

Objection, Your Honor. The question is argumentative.

This objection is available when the question does not elicit information, calls for an argumentative answer or asks the witness to agree to inferences drawn by the lawyer. An answer may also be objectionable as argumentative. (Use a motion to strike such an answer.) Undue harassment or embarrassment of a witness may also be objectionable as argumentative.

Asked and Answered

Objection, Your Honor. The witness has already answered that question.

This objection is available where a question is repeated after having been previously asked. (Note: Distinguish from objection as "cumulative" which applies where the proposed evidence merely adds to other similar evidence on a point.)

Assumes Facts in Dispute/Not in Evidence

Objection, Your Honor. The question assumes facts [in dispute/not in evidence]. I ask that the jury be instructed that statements of counsel are [in dispute/not in evidence].

This objection is available when a question either 1) asserts or assumes a fact in dispute has been proved or 2) asserts or assumes a fact for which no evidence has been introduced. The question may also be objectionable as "leading". (Note: Be cautious with questions prefaced with "Did you know...").

Complex

Objection, Your Honor. The question is too complex for a witness to understand.

This objection will more likely be available if the witness is very young, very old, or handicapped.

Compound

Objection, Your Honor. The question is compound. (Optional -1 have no objection to having the question rephrased, Your Honor).

This objection is available if there are two questions conjoined in one question with the disjunctive "or" or the conjunctive "and".

Cross Examination

Objection, Your Honor. This question exceeds the scope of direct examination.

Note: Courts generally permit wide latitude on cross-examination, however, some limit cross-examination strictly to matters brought out on direct. The modern view allows cross-examination as to any matters that have a logical tendency to rebut an unfavorable inference which might be drawn from the direct examination — any matter relevant to the subject matter of the direct. Very broad latitude is given where a witness is a party, an expert, or a witness against defendant in a criminal case.

"Opening the door": The fact that no objection was made on direct examination to inadmissible evidence may give the cross-examiner the right to cross-examine regarding matters within the scope of direct examination of the witness.

General

Objection, Your Honor. The question is too general.

If it cannot be determined from the question what specific admissible testimony is being sought, the question is too general. Questions which are too general normally are also objectionable as vague and ambiguous or as calling for narration.

Harassment

Objection, Your Honor. The question is unduly harassing.

This objection is available if the question is insulting to or...