FAQ – What are Trial Objections?

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Overview

We have all heard the words, “I object!” shouted in countless courtroom dramas on television. Trial objections are used to preclude the jury from hearing objectionable evidence and to preserve a party’s rights on appeal.

For related information about evidence and appeals, go to What Is Evidence?, What Happens Before, During and After a Lawsuit is Filed? and What Is An Appeal?

The following are the most common objections that are raised during trial.

Objections

1. Irrelevant
No evidence is admissible except relevant evidence. Relevant evidence is defined as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.

2. Evidence is more prejudicial than probative
Even though evidence may be relevant, the court may exclude it under Evidence Code section 352 if the court, in its discretion, finds that its probative value is substantially outweighed by the probability that its admission will consume too much time or create substantial danger of undue prejudice, or will confuse the issues or mislead the jury. The court in ruling on such an objection must weigh the potential benefit of the proposed testimony against the potential harm the evidence will create.

3. Hearsay
“Hearsay” is defined as an out-of-court statement offered to prove the truth of the matter stated. Simply stated, almost anything someone said outside of court is hearsay unless it fits within one of the recognized exceptions to the hearsay rule. Some of these exceptions are listed below.

• Admission by a party to the lawsuit.
• Out of court statement by a non-party that is against that person’s interest.
• Prior consistent or inconsistent out of court statement by a witness.
• Former testimony of a witness at deposition, trial or other proceeding.
• Spontaneous statement of a witness that describes or explains an act, condition or event perceived by the person making the statement.
• Statement of the person’s then-existing physical state or state of mind which is at issue at trial.
• Business record to prove the existence or non-existence of an act, condition, or event recorded or not recorded in a business record.

To qualify as an exception to the hearsay rule the attorney must establish all of the facts required for the exception.

4. Lacks Foundation
A lay witness (someone other than an expert witness) must have personal knowledge of the matter upon which he or she is testifying. Except in certain situations, a lay witness may not testify in the form of an opinion. Subject to the court’s discretion, a lay witness may express opinions concerning speed, weight, distances, observable physical condition of another person’s identity, whether someone appeared to be intoxicated, nervous, angry or alert.

An expert is allowed to express a wide variety of opinions not based upon personal observations provided there is sufficient foundation to support the opinion. The expert must have demonstrated that he or she has special knowledge or experience on the subject and that the opinion is based on reliable information.

5. Privilege
Even though evidence may be relevant, trustworthy, and would aid the jury in coming to a correct decision, certain evidence will be excluded if it is privileged. Privileges have been established in certain situations because it is considered more important to keep information confidential than to require disclosure. As with all evidentiary objections, certain facts must be established before the privilege can apply. Some privileges do not apply in all circumstances. In certain situations, a person may be deemed to have waived the privilege. The following is a list of privileges recognized by the State of California.

• Privilege against self-incrimination
• Lawyer-client privileges
• Privilege not to testify against spouse
• Confidential marital communication privilege
• Physician-patient privilege
• Psychotherapist-patient privilege
• Clergy-penitent privilege
• Domestic violence victim – counselor privilege
• Political vote privilege
• Qualified trade secret privilege
• Human trafficking victim – caseworker privilege
• Qualified freedom of the press privilege
• Legislative privilege
• Taxpayer’s privilege
• Right of privacy

To Object or Not To Object

Just because a question is technically improper, the attorney shouldn’t automatically object. Jurors do not want to have evidence withheld from them. Many jurors view objections as a technical way of preventing them from receiving all of the evidence. Before making an objection, the trial attorney should consider the following:

• Is the question objectionable?
• What is the proper objection to make?
• Will the court sustain the objection?
• Will the answer, if given, hurt your case?
• How will the jury perceive your objection?
• Will your adversary be able to reword the question to make it unobjectionable?

Cheong & Denove have the extensive resources to handle the most complex legal matters, yet is small enough to offer individualized service to our clients. We have been on your side for over 40 years.

We believe the more you know, the better choice you will make.