Making Objections in California Mock Trial
Making clear, powerful objections before a judge is one of the most important skills necessary to a strong attorney, whether he or she is arguing before the Supreme Court or a Mock Trial judge. Below is a list of suggestions to help make objections cogent, substantive, and commanding in any courtroom.
Objections as to form of the question.
- Leading – suggests the answer.
- Compound – multiple questions as opposed to one.
- Narrative – too general, asks the witness to tell a story.
- Argumentative – challenging, arguing, badgering the witness.
- Asked and Answered – question has already been asked.
- Vague and Ambiguous – question is not clear or understandable.
- Non-responsive – witness doesn’t answer the question.
Generally, form objections can be cured by re-phrasing the question. Most judges don’t like form objections, since they are viewed as “technical.” Limit the use of these objections, and use them tactically. If they are used blatantly or repeatedly, it will disrupt the flow of an examination.
Objections to substance.
- Relevance – not related to the disputed issue in the case.
- Foundation – attorney must establish necessary information before the witness can testify. Example: the witness was in a position to see or hear what is being asked. Called “laying a foundation.”
- Personal Knowledge – witness must have personal knowledge of what he or she is testifying about.
- Character evidence – witness cannot testify about someone’s character unless it is at issue in the case.
- Honesty and credibility is always at issue with any witness. In criminal trials, defense can introduce evidence of the ‘good character’ of the defendant, and ‘bad character’ of an important prosecution witness. Once the defendant puts character at issue, prosecution can respond with evidence of bad character.
- Opinion Testimony of Lay Witness – generally, lay witnesses cannot give opinion testimony unless it is rationally based on the witnesses’ perception, or helpful to understanding his or her testimony.
- Inferences and subjective statements.
- Exceptions: speed, mental and emotional states, sobriety, sanity, identity of voice or handwriting.
- Expert Witness or Opinion Testimony – experts can give opinions, unlike lay witnesses, but they must have the requisite qualifications and their opinions must be based on the evidence experts in that field generally rely on.
- In a criminal case, an expert can’t give an opinion as to whether a defendant did or did not have the requisite mental state in issue.
- Hearsay – out of court statement admitted for the truth of the matter asserted.
- First question: is statement being offered for the truth?
- If statement is being offered to show statement was made or heard, or to show subsequent actions of listener, it is not being offered for the truth, and not hearsay.
- Numerous exceptions to the hearsay rule; admission against interest of party (usually any statement of the defendant, excited utterance, state of mind of declarant, declaration against interest (puts declarant at risk for criminal or civil liability), business or official records, past recollection recorded (e.g. written witness statement), reputation of person character in community, dying declaration, co-conspirator statements.
- Creating a material fact (specific to mock trial) – witness creates a material fact not included in the official record.
- Defined by mock trial rules: “a fact that tends to prove a pivotal point in the case.”
Making the Objection
- Stand and say, for example, “Objection your honor that question lacks foundation. May I be heard?” If the court allows, explain your issue. Always ask to be heard before explaining or rebutting. Always address the judge, not the other lawyer.
- If you’ve already made the point or are at a loss of words, say “Submitted, your honor.”
- “Sustained” means an objection is granted; “Over-ruled” means not granted.
- Don’t thank the judge for ruling in your favor. Just move on.
- If your objection is sustained (granted), and the witness has already answered or partly answered, “Move to strike” that portion of testimony that is objectionable.
- Make a timely objection as soon as a question is asked and before the witness starts talking (if possible).
- Judges rule differently. Some are sticklers about certain types of evidence; others let everything in. Pay attention to gauge how the judge is responding to objections. If certain objections aren’t working, don’t keep making them. Alternatively, if the judge is granting, keep objecting.
- There can be more than one objection. If so, make both at same time:
- “Objection your Honor, hearsay and relevance. May I be heard?”
- “Objection your honor that question lacks foundation and is leading. May I be heard?”
- Remember: Evidence must always be relevant. So just because the question gets around the hearsay rule (for example), the evidence still be relevant (e.g. question calls for the state of mind of a witness; therefore it meets the ‘state of mind’ hearsay exception. However, in a criminal trial normally only the defendant’s state of mind is relevant. Even though the evidence satisfies the hearsay rule, it is still irrelevant and inadmissible.