Why are They Objecting?

By H. Michael Steinberg – Colorado Criminal Defense Trial Lawyer

Introduction -Defendant’s who are being prosecuted in a criminal trial – feel as if they are in a gold fish bowl and have no idea what is happening to them. It is frightening and intimidating. This article addresses when, why and how lawyers object to evidence and for other reasons during criminal cases.

Trial Objections Are Strategic – Tactical

During the witness’ testimony, like all other decisions made during trial – the criminal lawyer must make a strategic decision as to whether they should object to certain evidence.

While an attorney may be technically correct – an objection is a strategic decision.

While an attorney may be technically correct in objecting to opposing counsel’s questions, a strict adherence to rules of evidence, particularly during preliminary questioning or on matters which may not be important, may result in alienating the jury and lead them to the mistaken belief that you are somehow trying to hide the evidence from them.

Protecting The Record for Appeal

Balanced against the right to objectand the need to object strategically – is the need to protect the record for appellate purposes on matters which may have importance during appellate review. A failure to preserve an error for review can sometimes lead to a determination of incompetence and ineffective assistance of counsel which is a nightmarish situation for any trial lawyer.

A lawyer needs to listen to the question carefully, and at the point where the opposing lawyer begins to examine an area of importance s/he must be vigilant in asserting an objection at the earliest possible time or it will be considered waived.

Choosing not to Object

Another strategic determination is one where a lawyer might choose not to object to material which might otherwise be inadmissible because it may have some value in developing the facts of the case. This again is based on the overall strategy in presenting the party’s case.

General Objections vs. Specific Objections

There are two types of objections which counsel may make during the course of the witness’ testimony. They are general objections or specific objections.

A general objection is one which cites no specific reason or specific evidentiary rule. It made by simply saying, “I object.” In response to such an objection, the court may invite counsel to state a ground or specific reason for the objection in which case it becomes a specific objection.

However, if no specific reason is stated, invited or sought by the court, a ruling may nevertheless be made and it remains a general objection.

If a general objection is made and the court overrules it allowing the answer, there is no issue preserved for appellate review unless there is absolutely no theory under which the evidence could have been admitted for any apparent reason.

If a general objection is sustained and the answer is disallowed, it will be upheld on appeal if there was any ground upon which the evidence was inadmissible.

A specific objection is one in which the objecting party states a specific basis or rule of evidence for the exclusion of the evidence or the answer being sought.

A lawyer may make a specific objection by stating, “I object upon the ground that….” – finishing the sentence with the specific reason why the testimony or evidence is inadmissible.

A specific objection may be ruled upon for the specified reason only. If a specific objection is overruled and evidence is admitted, there is no ground for appeal because the objection had another valid basis to exclude the evidence which went unstated.

Where an objection goes to the substance of a witness’ testimony rather than to a form of a question and it has been sustained, counsel may request to make an offer of proof outside the presence of the jury.

An offer of proof is a short conference generally held at side bar between opposing counsel, the court and the court reporter in which the attorney offering the testimony will recite for the record what the witness’ testimony would be and why it should be admitted, at the conclusion of which the court may rule on it. An alternative form to this offer of proof is actually taking testimony from the witness in question and answer form outside the presence of the jury with the court ruling on the admissibility of the evidence at the conclusion of the examination.

As noted earlier, objections may go either to the form of the question posed or the substance of the testimony to be elicited.

The most common objections to the form of question are:

  1. Leading during the direct examination of one’s own witness;
  2. Vague/confusing/ambiguous questions;
  3. Compound questions (one which assumes two facts);
  4. Argumentative, which usually occurs during cross-examination.

An objection which is sustained for any of the foregoing reasons leaves the questioner free to rephrase or reformulate the question in order to eliminate the particular flaw in the form of the question.

Objections which go to the substance of a question which are most commonly encountered during trial are:

  1. The witness is incompetent;
  2. The question calls for a conclusion;
  3. The question calls for an opinion (by one not qualified to render it);
  4. The question calls for hearsay testimony;
  5. The question has previously been asked and answered (it is repetitious);
  6. The question is beyond the scope of the previous examination’
  7. The question calls for irrelevant testimony;
  8. The question for immaterial testimony;
  9. The question assumes facts not in evidence;
  10. The answer would be speculative;
  11. The question calls for privileged information;
  12. The question improperly characterizes prior facts or testimony;
  13. The question misstate the evidence or the witness’ testimony;
  14. The question would violate the best evidence rules;
  15. The question calls for narrative testimony;
  16. Testimony would be cumulative;
  17. The question constitutes improper impeachment’
  18. No foundation has been laid for either the testimony or the introduction of the exhibit.
Here Are Some Common Objections As Examples What If the Witness Is Incompetent

An objection which goes to the competency of a witness is one which is usually based upon the age of the witness, the contention that the witness is of unsound mind. In general, most jurisdictions require only that a witness understand the nature and extent of an oath and that the witness have personal knowledge of the facts about to be testified to in order to be deemed competent to testify.

Frequently, this particular objection is used by trial lawyers to suggest either that a witness is unqualified to state a conclusion or an opinion on the particular subject mater of the witness’ testimony. In reality, this latter objection which goes to qualification is one which is more appropriately made where an expert is being testified without proper qualification or is about to testify on a subject beyond the area of expertise.

In those instances where an objection to testimony is made on the grounds that the witness is incompetent and the witness otherwise appears to understand the oath, has personal knowledge about the subject matter of the testimony and is of sound mind, lawyers should make the adversary articulate whether the objection really goes to the nature of expert qualifications.

Questions Beyond the Scope of the Previous Examination

The general rule in all jurisdictions is that trial counsel may not examine a witness on a subject which was not covered on the previous examination. For example, a witness may not be cross-examined about a subject not covered on direction examination nor may a witness be redirected on new matter not covered on cross-examination.

While this rule is generally accepted and enforced, it is possible to take the witness into a new subject area which arguably tangentially relates to a subject covered on the previous examination by arguing that counsel has “opened the door” to this particular subject.

Foundation Necessary for the Introduction of Testimony or An Exhibit

In laying the foundation for testimony about a subject which is admissible as an exception to the hearsay rule, the basic journalism rules followed by cub reporters concerning “who, what, where and when?” will provide a sufficient foundation.

For example:

QUESTION: Mrs. Jones, did there come a time on January 9, 1995 when you and the defendant had a conversation about the death of his mother?


Q: Where did that take place?

A: At my home.

Q: Where is that located?

A: 110 Main Street

Q: Who was present?

A: Just the defendant and me.

Q: Can you tell us what he said on that subject?

A: He told me he poisoned her.

The statement “he poisoned her” is obviously an admission on the part of the defendant which is an exception to the hearsay rule, a proper foundation has been laid for its admission by simply recounting the circumstances of the conversation – i.e. who was present, where it occurred and the date on which it happened.

The foundation for the introduction of an exhibit follows the same type of common sense inquiry. For example, the introduction of a photograph may be accomplished by the following exchange:

Q: I show you Exhibit A. Can you tell me what it is?

A: It is a photograph.

Q: What does it show?

A: It shows the body of Mrs. Jones.

Q: Is that the way she looked on January 9, 1995?

A: Yes.

Counsel: I offer Exhibit A.

Some courts might require counsel to ask the witness, “Does Exhibit A fairly and accurately depict the way Mrs. Jones looked on January 9, 1995?

Strict adherence to what new lawyers sometimes view as “magic incantations” necessary for the admission of this type of exhibit are really unnecessary. A simple recitation of what is contained in the photograph and the fact that it looks the same way as the witness saw it is enough to satisfy the requirement of an adequate foundation, should satisfy a trial court and will most certainly satisfy an appellate court should appellate review become necessary.

One of the most common mistaken beliefs among young lawyers on this subject is that a proper foundation for the introduction of a photograph requires that the photographer be called. At no time is it necessary to call the photographer if a photograph of the event or condition in question is being offered unless, of course, the lawyer is seeking to recreate or “stage” an event, occurrence or condition at a later date.

If that is the case, then it may be necessary to call the photographer for purposes of laying the foundation about how the recreation occurred, but even in that case, it need not be done unless your adversary has successfully objected to the introduction of the photograph during your initial offer.

Another “magic incantation” which proves troublesome to new trial lawyers is the foundational questions which are required for the introduction of a business record. Once again, simple common sense is all that is required to satisfy this requirement. The three essential requirements for the introduction of a business record are:

  1. The identity of the record itself;
  2. That it was made in the regular course of business – in other words, that it was made during a routine transaction; and
  3. That it was the regular course of business to make it – i.e. that it is not something specially made particularly for litigation purposes.

The following exchange is an example of laying this foundation:

Q: Mrs. Jones, I show you Exhibit B. Can you identify it?

A: Yes. It is a receipt for arsenic that we sold the defendant on January 9, 1995.

Q: Is that receipt something that you prepare as part of your regular pharmaceutical business?

A: Ye, it is.

Q: Was it part of your routine duties in making this sale to prepare it?

A: Yes, it was.

Q: I will offer Exhibit B.

In satisfying the business record foundation, it is important to remember that only those records which are routinely made as part of business transactions are admissible, thus investigative reports of a police agency, statements or confessions of a defendant, statements of a witness, arrest records or “rap sheets”.

Or any other material which by its nature is prepared for litigation or court proceedings is not admissible under this section.

In addition to objections to questions, objections to answers are frequently made. The most frequent objections to an answer given by an adversary is that the answer is: (a) unresponsive; (b) narrative; (c) conclusory; (d) an opinion; (e) irrelevant; (f) immaterial; (g) privileged; (h) hearsay.

In making an objection to an answer given by a witness, counsel need simply state, “I object that the answer is ________, and ask that it be stricken.”

In asking the court to strike and answer, counsel is requesting that the information contained in the answer not be included in the record.

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