- If this evidence is offered by the defense and applied to the character and actions of the defendant to prove innocence, it is admissible.
- If this evidence is offered by the defense and applied to the character and actions of the victim to prove innocence, it is admissible.
- If this evidence is offered to show dishonesty or a tendency to lie by any witness, it is admissible. In this situation, the opposing counsel may rebut with positive character evidence to show the contrary.
- The Ultimate Guide to Objections in Mock Trial - March 4, 2017
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The Ultimate Guide to Objections in Mock Trial
Few things are as intimidating to a new mock trial attorney as the concept of making objections during trial. An objection is a statement made by an attorney during a case for the purpose of questioning or challenging any specific evidence. Often, the end goal of the objection is to have evidence limited or altogether ruled inadmissible by the judge.
In the US legal system, objections are part of evidence codes, and can be extremely complicated. Most mock trial competitions publish their own simplified rules of evidence, which include the most essential objections. During competitions, mock trial attorneys are limited to the objections set forth in the specific rules for their competition. The rest of this post will refer to the objections used by California Mock Trial, organized by the Constitutional Rights Foundation. Other competitions may use more or less objections, so be sure to check your specific rules before competing.
Objections in mock trial can only be made during the direct and cross examination. Statements made by attorneys during opening or closing arguments cannot be objected to. If there is an evidence issue with an attorney’s statements during these arguments, it should be brought to the judge’s attention during rebuttal.
One of the most difficult aspects of making an objection is that an attorney often needs to react very quickly. The process of making an objection is twofold:
First, an attorney must be paying close attention to what questions are being asked, and what answers are being given. If the attorney hears something that is objectionable, they must then make a split second decision on whether or not to object. Objections are extremely time sensitive, and if more than a few seconds pass between hearing the evidence in question and making the objection, the evidence will likely be admitted. This process may seem complicated and difficult to a beginning mock trialer, but with practice and experience, making objections can become second nature. In order to actually object to evidence, all an attorney has to do is stand up and say “Objection.” It is perfectly reasonable to interrupt opposing counsel when making an objection.
Next, the attorney must state to the judge what the exact objection is. For example, “Your honor, this testimony includes hearsay.” At this point, the judge may ask for a further explanation of the objection, or may instead address opposing counsel and ask for a response. Be ready to argue any objections to the judge if prompted. Some judges enjoy hearing more argument from attorneys while others may rule without any input. Be conscientious of what the judge prefers and do not offer more information than necessary. If the judge sides with the attorney objecting, the objection will be “sustained”. If the judge agrees with the opposing counsel, the objection will be “overruled”. When the judge makes a ruling, be ready to accept it and move on. It is never a good idea to argue with the judge.
Let’s now take a look at the two types of objections in Mock Trial.
Types of Objections in Mock Trial
Objections to Questions
The first type of objection is an objection to the form of the question asked, or answer given. When an attorney makes this type of objection, they are objecting to the nature of the question or answer, but not to its substance. Although equally valid, some judges often prefer to hear less of these objections. This does not mean one should avoid making them, but it simply requires the attorney to be conscientious and aware of the judge’s attitude. The following are the most frequently used objections of this type:
This objection is made when counsel asks a leading question during direct examination. A leading question is a question which actually suggests an answer. Leading question are allowed during cross examination, but not during direct.
Example: “At 8 pm that day, you were at the deli, correct?”
This objection is made when counsel asks a compound question. A compound question is a question that actually asks multiple things, all linked by “and” or “or”.
Example: “Did you determine the time of death by interviewing witnesses and by requesting the autopsy report written by the coroner?”
Question Calls for Narrative/Narrative Answer
This objection is made when either a witness begins telling a narrative as part of their answer, or counsel’s question calls for a narrative. It is admissible for a witness to testify about what happened, but they must do so in response to a question. This objection exists to prevent long winded witness answers. If a witness has answered the question, but continues telling a story, this objection should be made.
Example: “First thing I did that was get up, and go to work. It was fairly normal day at work until the robbery, which happened at around 1 pm. After that the police came, and began interviews. I was taken to the station, and was there until around 10 pm. After this, I came back home….”
This objection is made when counsel begins arguing with a witness, badgering a witness or becoming overly aggressive. This objection is made by an attorney to protect a witness during cross examination. The objection is fairly subjective in terms of what is considered argumentative. Generally, a judge will allow more aggressive questioning if counsel is cross examining the defendant.
Example: “How can you sit here and lie to the court about your attitude towards the victim?”
Asked and Answered Question
This objection is made when counsel has asked a question and received an answer, and asks the same question again. If an answer is given, a new question must be asked. Counsel can ask a question multiple times if the witness is not giving a full answer, is being uncooperative or unresponsive.
Example: “Did you stop at the stop sign on 5th and Main?”, “No”, “So, to be clear, you ran the stop sign?”
Vague and Ambiguous Question/Answer
This objection is made when either the question asked or answer given is vague and ambiguous in nature. This objection can be used to help a witness answer a confusing question, or help an attorney get a more precise response.
Example: “When did you see it happen?”
This objection is made when a witness does not answer the question being asked by the attorney. This objection can help an attorney corral the witness and get a straight answer to questions the witness may be trying to avoid. Be careful to avoid making this objection when the witness simply gives a different answer than what was expected or desired.
Example: “Weren’t you the last person the victim saw on the night of his death?”, “I had nothing to do with that!”
Objections to Testimony
The second type of objection is an objection regarding the substance of the testimony or evidence being presented. An attorney makes this type of objection to try and exclude the information given by the witness from the trial. An attorney may desire to keep out certain evidence or testimony for several reasons. For example, it may detrimental to the case, it may be false and unverifiable, or it may simply be inadmissible in court. Substantive objections are generally more difficult to make, and require more legal understanding on the part of the attorney. The following are the most common substantive objections in mock trial:
Relevance of Answer/Question
This objection is made when an attorney believes that irrelevant evidence to the case is being brought up. There are several reasons why irrelevant evidence should be excluded. Primarily, it contributes nothing to the case, it may sometimes reflect negatively on either side, and it also wastes precious time which should be used to tackle the real questions. An attorney can object to an irrelevant question asked by opposing counsel, or to an answer which is either in parts, or altogether, irrelevant. Use discretion with this objection, and don’t overuse, as what is relevant can be highly subjective.
Example: “The victim’s favorite color was yellow, wasn’t it?”
Question Lacks Foundation
This objection is made when opposing counsel asks a question before establishing foundation for that question. If the objection is sustained, the judge will require counsel to “lay a foundation” which involves backtracking and asking a more general question. This objection is most often encountered while describing circumstances during direct examination. Often attorneys will cut foundational questions at the start of examination in an effort to save time, so this is where most of the objections will be made.
Example: “What did you see at the Broadway diner?” (No previous question asking about witnesses location, position, etc.)
Lacks Personal Knowledge/Speculation
This objection is made when either an attorney asks the witness a question of which they have no personal knowledge, or when a witness begins to testify about something they have not directly observed (speculation). Witnesses are only allowed to testify about their own direct experiences and thoughts. Testifying as to what they believe may have happened, or about another person’s state of mind, are all considered improper evidence. The only exception in mock trial is that expert witnesses, or those who are called to the stand because of particular knowledge or experience, are usually given greater exemption from this objection. It would not be speculation for a signature authenticator to testify the defendant is guilty of fraud based on that expert’s analysis and professional opinion.
Example: The witness hears a gunshot from around a corner, runs, and sees the victim dead, and the defendant holding a gun. The following is speculation: “I believe the defendant shot the victim”.
Creation of a Material Fact
This objection is made when an attorney believes that a witness has made a factual error in their testimony regarding the case. This objection can also be applied if a question is extends past the scope of the witness’ statement and that it “calls for the creation of a material fact by the witness”. Generally, this objection should only be used as a last resort, and for major factual missteps. If the witness makes a minor error without huge significance to the case, this can be brought up during cross examination; the word “material” in the title of the objection suggests that this objection should only be used for errors that are relevant and meaningful for the case at hand. Additionally, even if a witness tells a significant falsehood on the stand, it will always be better to take up the issue on cross examination, and impeach the witness through the use of their own witness statement. The effect of this is twofold, in that the witness is shown to have lied, and the judge sees the greater skill of the crossing attorney. The CMF objection should be made in the situation when an attorney believes they will have insufficient time for cross examination, or in the case they believe a more immediate and forceful course of action is necessary.
Example: “I was home with my girlfriend until 7 pm on Saturday”, “But in your witness statement, didn’t you state you were home only until 6 pm?”
Improper Character Evidence
This objection is made when improper character evidence has been given as testimony in court. Improper character evidence is when character evidence (think general personality traits) is used to show how a person acted in a specific situation. There are three exceptions to this rule in which this kind of character evidence is permissible:
Example: “The defendant was always rude to me, and particularly so on the day of the murder.”
Lay Witness Opinion
This objection is made when lay witnesses (witnesses who are not qualified as experts and do not personal experience), testify with personal inferences or subjective statements. Opinion testimony is only admissible when it is based on perceptions/observations made with the witness’s five senses, and is helpful to clearer understanding of the witness’s testimony. This objection is similar to Lacks Personal Knowledge/Speculation, and sometimes can be used interchangeably.
Example: “I believe the defendant was in a crazed state of mind.”
This objection is made when a witness testifies about a statement made by another person, and uses contents of the other person’s statement to prove a fact true or false. This kind of testimony is considered hearsay because the actual declarant of the statement in question is neither under oath on the stand, nor will be cross examined. Therefore, hearsay is considered unreliable and inadmissible except in limited circumstances. Because of several exceptions to the hearsay rule, this objection is often the most difficult for new attorneys to understand. The following are some of the more common exceptions in which hearsay is allowed for the truth of the matter:
Declaration against interest: Hearsay is allowed if the statement in question is against the declarant’s economic, legal, criminal, civil or general interests.
Excited utterance: Hearsay is allowed if the statement in question is made by the declarant during or shortly after a startling event from which the declarant is still influenced, and describes or explains said event.
State of mind: Hearsay is allowed if the statement in question reveals the declarant’s state of mind, emotional or physical condition at the time of the statement.
Records made in the regular course of business: Hearsay is allowed if the statement in question was made in the form of a record in the regular course of a business or government procedure.
Prior inconsistent statement: Hearsay is allowed if the statement in question is inconsistent with the declarant’s trial testimony
Reputation of a person’s character in the community: Hearsay is allowed if the statement in question is evidence of a person’s reputation or character within a community or group.
Dying declaration: Hearsay is allowed if the statement in question was made by a dying person about their cause or circumstances of death, with the declarant’s personal knowledge and a sense of impending death.
Admission by party opponent: Hearsay is allowed if the statement in question was made by a person, and is being offered against that person by an opposing party during trial.
One of the key points regarding hearsay in mock trial that is often overlooked is the precise definition of what makes another person’s statement inadmissible. Another statement is only hearsay if it is being offered for the truth of the matter. If a witness is testifying to another’s statement, not to show that it is true, but instead, for example, to justify a subsequent action, then the testimony is not hearsay and does not require an exception to the hearsay rule. When dealing with statements of witnesses other than their own, attorneys must be very careful, and must be prepared to defend the testimony against opposing hearsay objections.
A judge will also be more likely to entertain arguments for and against a substantive objection, so attorneys must be ready to respond to a judge’s questions with sound, legal analysis. If an attorney strongly believes that a judge has not given them a fair opportunity to explain their objection, or to respond to an opposing objection, it is reasonable to ask, “May I be heard your Honor?”, or “May I respond to the objection your Honor?”. If the judge denies the request, the attorney should move on but take note of the preference and avoid asking again.
The key to mastering objections in mock trial is learning how to make objections and how to defend against them. Both of these skills can be improved through practice. At all times during team practice, attorneys should pay attention and listen for possible objections. Similarly, attorneys must be prepared to scrutinize their own direct and cross examinations and be ready to defend against any possible objections raised by opposing counsel. Objections may seem stressful at first, but they are genuinely one of the most fun and rewarding aspects of the attorney experience. Objections help keep a trial dynamic, and allow attorneys to think on their feet and show of their legal arguing skills. If an attorney takes the time to practice and master this facet of mock trial, the returns will be exponential, both in terms of team performance and personal satisfaction during competition.