objections cheat sheet, Cheat Sheet of Communication

Download objections cheat sheet and more Cheat Sheet Communication in PDF only on Docsity! TBP 2013 Summer Course Manual Objections 1 Objections Objections are an attorney’s way of formally notifying a judge that opposing counsel is not following the rules of evidence and requesting the judge to make a ruling on the issue. Objections should be made after the question has been asked, but before the answer has been given. Once the witness has answered the question, it is too late to make and objection. An objection should be made if it is apparent the question calls for inadmissible evidence (e.g. hearsay), or the question is in improper form (e.g. leading). If the question calls for an answer that is apparently admissible, but the answer itself is inadmissible (e.g. hearsay), the objection is made by way of a motion to strike. All objections must include the reason for the objection. A common list follows. DEFINITIONS Objections to Questions: • Ambiguous/Confusing: The question is confusing, contains more than one question, and/or can be understood in more than one sense. • Argumentative Question: The attorney is arguing their case with the question. The attorney is arguing with the witness • Asked and Answered: Opposing counsel asks the same question over and over again. The witness has already answered the question. • Assumes Facts not in Evidence: The question contains information that has not been introduced into evidence. • Beyond the Scope of Direct Examination: Asking a question not brought up during direct examination. • Compound: Asking two questions at once. • Improper Question: You should only use this objection as a last ditch effort if you cannot think of the proper objection. Either the court will help you out or you will have more time to think of the proper objection and form your argument. • Incompetent Witness: When a witness lacks the mental capacity, qualifications, or personal knowledge to testify as to a particular matter. • Leading Question: The way the question is asked tends to suggest the answer. Clue: Listen for questions that end in “didn’t you?”, “correct?”, “isn’t it true?”, etc. IMPORTANT: Leading questions may always be used on cross-examination. • Misquoting a Witness: Opposing counsel’s question misstates the prior testimony of the witness. • Narrative: Witness is rambling, just telling a story. • No Proper Foundation: When the opposing attorney has not laid a proper foundation to authenticate a document or a piece of evidence or to show that the witness is able to testify to the question which opposing counsel is asking. • Opinion: The testimony calls for a particular type of opinion to be made by the witness that the witness is not qualified to give. • Privileged: When the answer to a question would violate the counselor/pupil, teacher/ pupil, or attorney/client privileged. • Speculation: The witness is required to guess in order to answer. The witness does not have personal knowledge of the actual answer. Listen for “isn’t it possible” questions. • Unfairly Prejudicial: When the relevant value of a piece of evidence is outweighed by the prejudicial effect which it may have to a jury. TBP 2013 Summer Course Manual Objections 2 Objections to Evidence: • Irrelevant: Evidence will not prove or disprove the case. If irrelevant evidence is blurted out by a witness before you have time to raise your objection, you may ask the Judge to instruct the jury to disregard the testimony. • Hearsay: Out of court statement to prove the truth of the matter stated. EXCEPTIONS: Present sense impressions (Look! It’s dark outside) Excited Utterance (Oh my, that car was going too fast) Present mental/physical state (I meant to do that) PURPOSE AND PROCEDURE OF OBJECTIONS STRATEGY ON OBJECTIONS: When making an objection, you are permitted and encouraged to state more than one ground if more than one applies. The more proper grounds you have for your objection, the more likely the evidence will be kept from the jury or that opposing counsel will be asked by the Court to restate his or her question. TIMELINESS: If a question is improper, an objection must be made before the response is given by the witness 1. If the question itself is prejudicial, object promptly when it becomes apparent 2. If answer is improper, objection must be made as soon as it becomes apparent Object to answer -If sustained, ask that answer be stricken from the record and that jury be instructed to disregard it. LEGAL BASIS: 1. State legal basis 2. Do it succinctly without argument Example: “objection your honor, the question calls for a hearsay answer” PROCEDURE: 1. Stand up 2. Make the objection 3. State basis ORDER OF PROOF 1. When opponent has succeeded in persuading judge to exclude a critical piece of evidence, make an offer of proof - It may convince judge to reverse 2. Ways to offer proof: - Both are done outside the hearing of the jury either at sidebar or without jury present If judge denies, then you write it down - Narrative Form Example “Your honor, if we were permitted to pursue this line of questioning, the witness would testify that one week before the incident, the Defendant asked her if she wanted to go to the park to smoke weed.” TBP 2013 Summer Course Manual Objections 5 • Prepare to examine nonparty and opposing party witnesses (Example for Defense of Mock Trial: Questions to ask the Officers Prior to the date in question, you had never met Brittany before, correct? And she had never been arrested before your encounter with her? You didn’t find any drugs on Brittany did you? But you did find them on the other kids that were there, right? You didn’t see Brittany holding the pipe did you? You didn’t see her place it under the skateboard did you? When you approached Brittany, she didn’t run did she? She didn’t move or appear to be hiding anything did she? Brittany just sat there and politely answered your questions and cooperated didn’t she? Isn’t it fair to say that Brittany was just in the wrong place at the wrong time? Read through the above example, think about what objections the Prosecution would make to these questions think about what answer the officer may give and if you are defense, what you would argue in response to the Prosecutions objection. We will go through this example in class so be ready to object and respond. • Prepare exhibits & Demonstrative Evidence Similar to the evidence grid, you need to have your exhibits prepared and marked for mock trial. Have a list of your exhibits and be sure to prepare responses to any objection you may get from opposing counsel. • Motions in Limine Prior to trial, you may want to make motions in limine to the judge outside of the presence of the jury. Motions in limine are preliminary objections to evidence and/or testimony that you anticipate being introduced at trial. Because you want to try and keep certain things out and don’t want to risk your opponent sliding a question or an answer getting out before you have a chance to object. The saying goes “you cannot unring a bell” so for severely prejudicial information, a motion in limine, or preliminary objection is an excellent strategy. Make a list of your motions in limine and leave a blank for you to record whether the judge has sustained the motion or provided a limiting instruction. We will discuss examples of motions that either side may want to raise for Mock Trial during class. In anticipation, create a list of things you would want excluded from the fact pattern regardless of which side you represent. TBP 2013 Summer Course Manual Objections 6 OBJECTIONS CHEAT SHEET FOR TRIALS To Questions: • Ambiguous/Confusing: The question is confusing; not understandable. • Argumentative: The attorney is arguing his/her case with the question; the attorney is arguing with the witness. • Asked and Answered: Opposing counsel asks the same question over and over again. The witness has already answered the question. • Attorney/Client Privilege: The question would require the witness to divulge privileged information (generally only applies if Defendant testifies) • Calls for Speculation: The witness is required to guess in order to answer. • Compound: Asking two questions at once. • Foundation: When the opposing attorney has not laid a proper foundation to authenticate a document or a piece of evidence or to show that the witness is able to testify to the question which opposing counsel is asking. • Hearsay: Out of court statement to prove the truth of the matter stated. Exceptions: • Present sense impressions (Look! It’s dark outside) • Excited Utterance (Oh my, that car was going too fast) • Present mental/physical state (I meant to do that) Non-Hearsay • Prior Inconsistent Statement • Identification of a person made soon after perceiving him • Statement of a party offered against him or an Admission • Leading: Question is trying to get a specific answer. • Narrative: Witness is rambling, just telling a story. • Opinion Testimony: The testimony calls for a particular type of opinion to be made by the witness that the witness is not qualified to give. To Evidence: • Foundation: Opposing counsel has not asked 1) What is this? 2) How do you recognize it? 3) Does it accurately reflect/depicted the item on the date…? • Irrelevant: Evidence will not prove or disprove the case, and solely being offered to prejudice the jury. • Hearsay: Out of court statement (document) to prove the truth of the matter Exceptions: • Business Records • Police Reports (regarding factual information, not officer’s opinions) Non-Hearsay • Confession (Statement Against Interest/Admission)