FREQUENTLY MADE OBJECTIONS AND THE RULE THE OBJECTION IS BASED ON
From MN Bench Book - Trial Procedures & Practices for Judges
THE IS A LIST OF FREQUENTLY MADE OBJECTIONS AND THE RULE OF EVIDENCE THAT THE OBJECTION IS BASED ON.
This section was prepared by Judge Fred Karasov, Minnesota District Court Judge, 4th Judicial District
Objections may be based on the form of the question or the answer.
OBJECTIONS TO QUESTIONS AND RULE OBJECTION IS BASED ON
1. VAGUE OR AMBIGUOUS:
RULE 611(a)(1): It is not clear what the questioner is asking.
RULE 611(a)(3): Counsel is arguing rather than asking a question. (“You’re a liar, aren’t you?”)
3. ASKED AND ANSWERED / REPETITIOUS:
RULE 611(a)(2): Unfair emphasis on facts.
4. ASSUMES FACTS NOT IN EVIDENCE:
RULE 611(a)(1): The question references facts that were not previously testified to or otherwise proven.
5. BEYOND THE SCOPE OF DIRECT, CROSS, REDIRECT, RECROSS EXAMINATION:
RULE 611(b): Questions unrelated to the examination immediately preceding.
RULE 608(a): Counsel not permitted to support witness’s character for truthfulness until it has been attacked. (“Did you believe your daughter when she told you what the defendant did to her?”)
7. CALLS FOR CONCLUSION: RULE 602, 701: Witness testifies only to facts, conclusions are for jury. (“What did you think when he did that?” - note that this question also calls for speculation.)
8. CALLS FOR IMPROPER OPINION:
RULE 602, 701, 702: Expert not qualified or lay person’s opinion not helpful.
RULE 611(a)(1): Question is too general and invites witness to give long answer (e.g., “What did you do that day?”). Generally, there is nothing wrong with a narrative question or response. Judges should not sustain this objection until the witness starts interjecting objectionable responses such as hearsay, irrelevant material, lack of competence, lack of foundation, etc., but judges have discretion to insist on more specific questions. See e.g., RULE 611(a).
RULE 602: Witness is testifying but does not really know the fact or conclusion he or she is testifying to, i.e., witness lacks personal knowledge, would be guessing, or would be giving an opinion. (“Why do you think he did that?”)
RULE 611(a): There are at least two questions contained in the one question. (“The light was red and then you went through the intersection, isn’t that correct?”)
12. COUNSEL TESTIFYING:
RULE 603: Counsel is making a statement, not asking a question. (“That must have been very upsetting to you)
13. HEARSAY (question):
RULE 802: Answer requested calls for hearsay and no exception applies. (“What did he tell you?”)
14. IMPROPER IMPEACHMENT:
RULE 613: Witness must be allowed to explain or deny making the prior inconsistent statement before counsel can introduce extrinsic evidence. Generally, it is improper to call the impeaching witness or present this impeaching statement without first laying this foundation. See RULE 608
OBJECTIONS TO THE ANSWER
9. INCOMPETENT EVIDENCE:
RULE 104 (a): Evidence offered that the judge has previously ruled inadmissible, e.g., illegally obtained confessions, illegal search and seizure, or improper identification procedures.
RULE 402: Answer does not prove or disprove any fact of consequence. RULE 611(a): May also object under this rule that the line of inquiry and answers are needlessly taking up the court’s time.
11. NARRATIVE RESPONSE:
RULE 611(a)(1): Witness’s answer is beyond the scope of the question. Usually, the witness’s answer is not objectionable until the witness starts interjecting hearsay or other irrelevant or objectionable answers.
12. UNFAIR PREJUDICE:
RULE 403: Although the testimony may be relevant, the court should still exclude it if the probative value is substantially outweighed by the prejudice. Note that this rule and Rule 401 favor admissibility of evidence.
13. UNCHARGED MISCONDUCT:
RULE 404(b): Evidence of uncharged misconduct is not admissible to show the person acted in conformity (inadmissible character or “propensity” evidence), but it may be admissible for other purposes such as motive, opportunity, intent, absence of mistake or accident, identity, etc.
RULE 611(a)(1): Witness gives an answer that does not answer the question asked. Arguably, only the attorney who is questioning the witness may make this objection because only that attorney can demand or expect answers that respond to the questions. Opposing counsel should be limited to making specific objections such as hearsay, speculation, lack of foundation, relevance, etc.
15. AUTHENTICATION INSUFFICIENT
Rule 901 & 902
16. CHAIN OF CUSTODY
Rule 901 The degree of chain of custody that must be established for a piece of physical evidence or a test performed on the piece of physical evidence depends on the nature of the evidence and the purpose for which the evidence is offered for. Gun offered for charge of possession minimal chain of custody, DNA test on gun higher more thorough chain of custody required.
17. COMPROMISE OR OFFER OF COMPROMISE
18. CONCLUSION OF LAW EXPERT WITNESS
Rule 702 & 704
19. CONCLUSION OF LAW - LAY WITNESS
Rule 701 & 702
20. CONFUSION OF THE ISSUES
21. HABIT EVIDENCE NOT ADMISSIBLE
22. HYPOTHETICAL QUESTION INCLUDES FACTS NOT IN EVIDENCE
23. VIOLATION OF WITNESS SEQUESTRATION ORDER
24. IDENTIFICATION INSUFFICIENT
Rule 901 & 902
25. PHOTOGRAPH INFLAMMATORY AND UNFAIRLY REJUDICIAL
26. VISUAL IMAGERY OR AUDIO RECORDING NOT AUTHENTICATED
27. RELIGIOUS BELIEF OR OPINION