Chapter 4: Evidence and Objections

Objections are the procedure for opposing inadmissible evidence, improper questions, and inappropriate conduct — they preserve error for appeal, control opposing counsel and witnesses, and must always rest on a good-faith legal basis rather than tactical harassment.

Chapter 4

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4.1 Introduction

A. Purposes

B. Cases: Judicial, Arbitration, Administrative

C. Considerations

4.2 Preparation

A. Anticipating Evidentiary Problems

B. Admissibility and Weight

C. Planning Objections

D. Deciding to Object

E. Alternative Objections

F. Explaining No Objection

G. Invitation to Object

4.3 Presentation

A. Making Objections

B. Timing of Objections

C. Phrasing Objections

D. Outside Hearing of Jury

E. Legal Support

F. Attorney Demeanor

G. Responding to Decision Maker

H. Continuing Objections

I. Responding to Objections

J. Presenting Contrary Evidence

4.4 Rulings

A. Broad Discretion

B. Prompt Ruling

C. Provisional Ruling

D. Inquiring About Ruling

E. Renewing an Objection

F. Pursuing Objections

G. Obtaining a Ruling

4.5 Objection Procedures

A. Motions In Limine

B. Offers of Proof

C. Motion to Strike

D. Request for Curative Instruction

E. Limited Admissibility

F. Questioning Witnesses

G. Commenting on Evidence

H. Preserving Evidentiary Error

I. Motion for Mistrial

J. Prejudicial Error

K. Appellate Review

4.6 Objections to Direct Examination Questions

A. Leading

B. Narrative

C. Non-Responsive

D. Vague and Ambiguous

E. Cumulative

F. Misstatement of Evidence

G. Assuming Facts Not in Evidence

4.7 Objections to Cross-Examination Questions

A. Repetitious

B. Misleading or Confusing

C. Multiple or Compound

D. Mischaracterization of Evidence

E. Argumentative

F. Improper Impeachment

G. Beyond the Scope

4.8 Objections Based on Exclusionary Rules

4.9 Objections Based on Irrelevancy

A. Irrelevant Evidence

B. Inadmissible Types of Evidence

4.10 Objections Based on Privilege

A. Privileged Communications

B. Types of Privileges

4.11 Objections Based on Competency and Foundation

A. Lack of Competency

B. Lack of Personal Knowledge

C. Lack of Foundation

4.12 Objections Based on Improper Opinions

A. Improper Expert Opinions

B. Improper Lay Opinions

4.13 Objections Regarding Documentary Evidence

A. Inadmissibility of Documents

B. Lack of Authentication

C. Original Writings

4.14 Objections Based on Hearsay

A. Scope of Hearsay

B. Hearsay Definition

C. Out-of-Court Statements

D. Non-Hearsay Statements

E. Hearsay Myths

4.15 Hearsay Exceptions

A. Common Hearsay Exceptions

B. Declarant Unavailable Exceptions

4.16 Admissible Documentary Records

A. Business and Public Records

B. Other Reliable Records

C. Absence of Records

D. Additional Types of Records

4.17 Additional Hearsay Exceptions

A. Reputation Evidence

B. Residual Hearsay Exception

C. Multiple Hearsay Analysis

4.18 Criminal Constitutional Limitations

4.19 Questionable Objections

4.20 Objection Analysis

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REFLECTING ON ADVOCACY

We arg’ed the thing at breakfast, we arg’ed the thing at tea, and the more we arg’ed the question the more we didn’t agree.

—Will Carleton Betsey and I Are Out

He that wrestles with us strengthens our nerves and sharpens our skill. Our antagonist is our helper.

—Edmund Burke

Introduction

A. Purposes

An objection is the procedure used to oppose the introduction of inadmissible evidence, to resist the use of improper questions, and to contest inappropriate conduct during a case. Evidentiary objections are used to exclude evidence that should not be considered by the fact finder, to change the form of questions improperly phrased by opposing counsel, and to prevent a witness or party from being harassed during a trial or hearing. Objections may also be employed to control the behavior and statements of an opposing attorney, a witness, or a judge or arbitrator or administrative law judge (ALJ).

Objections permit the decision maker an immediate opportunity to correct a mistake or error. In jury trials, an objection along with a curative instruction allows the judge to instruct the jurors to disregard a mistake that was made. Objections also create a record of the error and preserve that mistake as a ground for a new trial or hearing or an appeal. The failure to make an objection usually waives any mistake as a ground for a new trial or hearing or appeal, unless the error is so obvious and unfairly prejudicial that the substantial rights of a party are adversely affected.

Objections may also accomplish reasonable strategic objectives. Tactical reasons for objecting are only proper if there is a good faith legal basis that supports the objection. Objections with no legal support made solely to interrupt or hassle opposing counsel are unethical and violate the rules.

An attorney might object to emphasize an opponent’s evidentiary problems, to force the opponent to alter the introduction of evidence, or to affect the presentation of the case. An advocate may also object to assist a witness. For example, if a witness becomes confused or has difficulty answering questions, a legitimate objection might allow the witness a short break to regain composure and plan a responsive answer.

A proper objection might also be used to interrupt the flow of testimony. When an examination is proceeding very smoothly, an objection may break up its rhythm. An experienced attorney may object to confuse or distract a novice lawyer who may become nervous and ineffectual. These tactical objectives, however, must always be supported by a good faith legal basis and are not to be used improperly.

Objections can also create problems of their own. If not interposed for an obviously proper purpose, their use may be deemed inappropriate and bothersome. An advocate who overuses them or appears to object for improper motives may alienate the decision maker.

B. Cases: Judicial, Arbitration, Administrative

Rules of evidence govern the admissibility of evidence in trials. This Chapter explains objections to the introduction of evidence in both trials before a judge and before a jury. Arbitrations and administrative hearings are also governed by rules of evidence that may be less numerous and applied with greater flexibility and discretion. The general rule for arbitrations and administrative hearings is that evidence is admissible if it is relevant and reliable.

These two benchmarks underlie evidence rules and form the bases for determining whether evidence ought to be introduced and admitted. Relevancy includes evidence having the tendency to make consequential facts more probable or less probable. Reliability includes substantive evidence, such as dependable hearsay and authentic documents, whose trustworthiness outweighs its untrustworthiness.

The concepts and strategies explained in this Chapter generally apply to bench trials, arbitrations, and administrative hearings as well as jury trials. References to decision makers include judicial judges, arbitrators, and administrative judges and hearing officers. These professional decision makers may not need some of the protections and restrictions afforded by the rules and the law in assessing evidence. And some evidentiary rules (e.g., hearsay constraints and expert standards) are designed primarily to control the submission of evidence before jurors, who may be unduly influenced by irrelevant or unreliable evidence.

Proper foundation, reliable testimony, and appropriate question formats make evidence more persuasive in all types of proceedings. When used properly, the rules of evidence are excellent guides in preparing and presenting a case. For example, while hearsay exceptions may not be strictly enforced in arbitrations and administrative hearings, the reasons supporting the exceptions aid in determining reliable admissible evidence.

The initial sections of this Chapter explain objection procedures, and remaining sections explain substantive evidentiary objections. Objections made during jury selection, opening statement, and summation appear in those respective chapters. Some readers may prefer to first read the substantive rules of evidence explained in Sections 4.6 through 4.20 and then read about objection procedures covered in Sections 4.2 through 4.5.

References to evidentiary rules in this Chapter refer to the Federal Rules of Evidence, which appear in the companion Supplement to Trial Advocacy Before Judges, Jurors, and Arbitrators (available at store.‌west‌academic.‌com). The explanations, descriptions, and examples in this Chapter reflect both the federal rules and identical or similar state rules widely adopted in the vast majority of states. The doctrines and rationales underlying these rules are applicable to federal and state courts, arbitrations, and administrative hearings.

C. Considerations

Objections should be planned around the following considerations:

The approach of the decision maker. The knowledge of the decision maker regarding the rules of evidence and preferences regarding ruling on objections are factors in determining whether an advocate makes an objection. Some decision makers sustain minor, technically correct objections while others apply a broader view and overrule such objections. There may be little advantage in making an objection that will be readily overruled. The attorney who interposes too many questionable objections may lose effectiveness. While there may be reasonable, professional disagreements over the propriety of an objection, that is not a reason to avoid objecting, although it is a valid consideration.

The effect of an objection. An objection may call a mistake or an omission to the attention of the opponent who may then correct the error. Objections should be avoided if they help the opponent.

The nature of the evidence. A lawyer should consider objecting to evidence that lacks probative value, is unclear or confusing, is collateral to the issues in dispute, or breaches a rule of evidence. If the influence of the questionable evidence is minor, the nature of the evidence may not tactically support an objection.

*The impact of an immediate correction. *Objections allow the decision maker to quickly correct an error. If the prompt correction of a mistake reduces or eliminates any adverse effect, it should be promptly sought.

Highlighting specific evidence. An objection tends to highlight the evidence to which it is directed. A lawyer might refrain from objecting, knowing that an objection may emphasize the evidence and increase its weight.

The reaction of the jury. Incessant objections, whether sustained or overruled, may annoy the jury. Jurors may perceive that the objecting attorney is attempting to hide evidence or is acting unfairly by making technical or numerous objections.

Creation of a clear and complete record. If something objectionable and prejudicial occurs during the trial or hearing, an objection should be made to make a record of the inappropriate evidence or behavior and hold the offending attorney accountable.

Preservation of an error for post-trial motions and appeal. Even if a lawyer anticipates that an objection will be overruled, a valid and vital objection should be made to preserve the error.

The ability of an opponent. An opposing attorney may have little knowledge of evidence law and may not be able to ask proper questions or lay foundations. Appropriate objections may disrupt the presentation of a poorly prepared or inexperienced advocate.

Strategic impact. A lawyer may make objections that are likely to be sustained early in the case. Successful early objections give the attorney the appearance of being knowledgeable. As a result, the decision maker will likely pay attention to subsequent objections; opponents will be less inclined to offer inadmissible evidence; witnesses will be easier to control on cross-examination; and a jury might pay more attention to the argument of a confident advocate who has demonstrated competence and skill.

Preparation

Objections are based on violations of the rules of evidence, statutes, civil and criminal procedure, case law, advocacy practice, common sense, and fairness. The decision maker makes the final determination whether grounds for objections exist and are proper. Not all judges, arbitrators, and ALJs recognize all objections. The understanding and interpretation of evidence law varies. Counsel must adapt to the rules as applied and assert recognized objections. Forms appear at the end of this Chapter that provide a plan for evidentiary preparation. Gen AI and LLMs can assist in preparing and planning evidentiary submissions and objections. See §§ 1.1(C) & 1.10(E).

A. Anticipating Evidentiary Problems

Anticipating evidentiary problems and planning how to handle them are elements of proper preparation. The goal of an examining attorney is to present evidence that is not objectionable. When preparing and presenting evidence, the advocate must recognize potential objections that may be asserted and structure questions to avoid evidentiary infirmities. The opposing lawyer must anticipate potentially inadmissible evidence and prepare objections. A motion in limine may be brought before the case begins or before a witness testifies to obtain a ruling on the admissibility of evidence before it is introduced. See § 3.8(C)(2).

B. Admissibility and Weight

Two questions need to be resolved about the introduction of evidence:

1. Is the evidence admissible under the law?

2. What is the weight or probative value of the evidence?

A professional decision maker decides the first admissibility question and the second as well, except in a jury trial when jurors determine the weight to be given the evidence. Federal Rule of Evidence 104 and similar state rules require the decision maker to make preliminary decisions regarding the admissibility of evidence. In a jury case, the judge reviews the sufficiency of the initial evidence and then decides whether to allow the introduction of further evidence. In a bench trial or arbitration or administrative hearing, the judge, arbitrator, or ALJ respectively decides the admissibility and weight of the evidence.

For example, in a jury trial, the judge decides whether sufficient evidence has been introduced to establish that a person is qualified to be a witness, that a privilege exists, that a duplicate document is admissible, and that a hearsay statement falls within an exception rendering it admissible. After sufficient evidence has been introduced, the jurors then determine whether they find the admissible evidence probative, credible, and persuasive. In situations when a close question exists regarding the sufficiency of the evidence, most judges are inclined to admit the evidence and let the jurors determine its worth.

C. Planning Objections

The determination whether to assert evidentiary objections involves two considerations:

• Is there a legitimate, good faith objection supported by the law of evidence available?
• Is there an appropriate strategic or tactical reason for making the objection?

It is difficult enough to make these decisions in a calm, cool, detached atmosphere, such as while reading this Chapter. It is much more difficult to make a quick decision amidst the tension and commotion of a trial or hearing. During the case presentation, an objecting attorney must make split-second judgments while concentrating on all other aspects of what is happening. This skill is enhanced with practice and experience.

There are a number of approaches that can be accomplished by novice advocates to increase their ability to think quickly, make instant judgments, and assert objections during a case:

• Become familiar with the types of common objections. Review a list of available objections and organize the objections in a format that can be easily remembered and applied. Form 4.1 and the list of common objections at the end of this Chapter provide a usable framework that can be modified.
• Learn to recognize types or patterns of evidence that create objectionable situations. These include:
• Lengthy direct examination questions are often objectionable because they are leading.
• Questions that concern prior conversations involving witnesses may trigger hearsay objections.
• Questions calling for observations by witnesses require proper foundation and may be objectionable based on lack of foundation.
• Questions calling for lay witnesses to give an opinion may support an objection based on an improper opinion.
• Documents must be authenticated, otherwise an objection based on lack of authentication may be appropriate.
• Answers that include prefaces such as “I’m unsure, but I suppose. . .” may support an objection based on speculation.
• Responses referring to documentary exhibits may violate foundation, authenticity, or original writing rules.

Sections 4.6 through 4.18 explain these and other commonly available objections.

• Prior to trial or hearing, prepare a list of specific objections to the anticipated evidence. This planning process will assist in more accurately identifying objections during the case.
• Concentrate on the evidence being introduced. Although other matters may need some attention, focus on the evidence while it is being introduced.
• Listen attentively and watch the examination. The sound of a question or answer, or the demeanor of the lawyer or witness, may be objectionable.
• Rely on common sense. Some events occurring during a trial or hearing may be objectionable because they are obviously improper and unfair.
• Over prepare. Extra preparation helps in applying the evidentiary rules to the evidence introduced in the case.
• Be prepared to lose an objection. Valid objections may be overruled and inadmissible evidence is sometimes admitted. Continue on, and consider ways to overcome the problem.
• Be willing to make mistakes. Anticipate that the decision maker may disagree with an objection and think it’s wrong. That will not be the first, or last, time.
• Prepare to be surprised. Sometimes evidence comes in differently than expected, and decision makers exercise discretion in surprising ways.
• Observe whether an objection is expected. The decision maker may invite an objection by sighing, making faces or by appearing impatient with the testimony. However, an objection need not be interposed in response to an apparent invitation. An advocate may misinterpret the behavior or may not want to object for tactical reasons.
• Rehearse making objections to potential evidentiary problems. Anticipate how opposing counsel may submit evidence or make mistakes, and practice making appropriate objections.

D. Deciding to Object

Whether an objection should be made even when there is legal support for the objection depends on the strategic impact the objection has on the admissibility of the evidence. The more critical the evidence, the more likely the objection should be made. There are several basic guidelines determining whether to object to evidence:

• If the evidence is clearly admissible, the opposing attorney should not object. Rather, the attorney should try to minimize the effect of the evidence through cross-examination or rebuttal and then argue its lack of weight in final argument.
• If the offered evidence is clearly inadmissible and harmful, the lawyer should object. The rules of evidence should be used to exclude improper evidence that hurts an objecting party’s case, and the lawyer should use all available means to reject this evidence.
• If the evidence is probably inadmissible but not harmful, counsel should consider not objecting, or may object but not pursue the issue if the objection is overruled. Whatever harm there is may be avoided on cross-examination or explained away in summation.
• If the answer will reveal favorable or neutral information, even if the question is improper, no objection need be made.

Objections should be reserved for situations that meet the considerations listed in Section 4.1(C). In various circumstances, there may be no need to make objections. Some trials and hearings between skilled advocates may result in only a few, if any, objections being interposed.

E. Alternative Objections

There may be more than one objection that can be made to a question or an answer. Part of the planning process is formulating a series of potential objections to anticipated evidence. Objections that may be available to the same piece of evidence include:

• Improper form of the question. The question may be leading or otherwise improper.
• Irrelevant. The topic may not have relevance to the case.
• Cumulative. The evidence has previously been introduced and this item of evidence is unnecessarily repetitive.
• Unfairly prejudicial. Even if the item is relevant, it may be unfairly prejudicial.
• Lack of foundation. The witness may not be competent to lay a foundation for the introduction of evidence.
• Improper opinion. Witnesses may not testify to an improper or baseless opinion.
• Hearsay. The source of the information may be an inadmissible and unreliable hearsay source.
• Original writing (best evidence). Oral testimony may not prove the contents of a document that needs to be introduced.

F. Explaining No Objection

In some circumstances an objection may seem appropriate, but the opposing lawyer does not want to object. In such situations, counsel may want to explain why no objection is being made. Instead of remaining silent or merely saying “Your Honor, we have no objection,” the attorney may state: “We have no objection and want this testimony to be heard.” Or: “We agree that this exhibit should be admitted into evidence.”

G. Invitation to Object

Decision makers occasionally look at opposing counsel when evidence is being introduced and say: “Any objection?” Some ask these questions neutrally without suggesting that an objection exists. Others signal that they will sustain an appropriate objection. Even if the lawyer did not plan to make an objection, the lawyer should consider whether to object because there is an apparent suggestion that there is something objectionable. An attorney should not object merely because an objection could be made, but rather should consider whether there is a compelling reason for objecting.

Presentation

A. Making Objections

Whether an attorney should stand or remain seated while objecting depends on the jurisdiction and the decision maker, and the abilities of counsel. Most judges require or expect the lawyer to stand when addressing the court. The seated attorney may say “Objection, your Honor,” and then stand to state the grounds. The extra moment gained by standing may help in framing an objection. A lawyer may remain seated or request to remain seated if that is permitted, if objections and rulings are made quickly, or if there is a series of objections. Most objections and rulings are made in front of the jurors unless an explanation is warranted. See § 4.3(D). Arbitrators and administrative judges typically allow the objector to remain seated.

Attorneys may object in a manner permitted by their abilities. Trial and hearing procedures need to accommodate the capabilities of counsel. Some of the suggestions in this section will need to be modified to reflect the needs of the lawyers.

B. Timing of Objections

An objection must be timely made. Fed. R. Evid. 103(a)(1)(A). If a question is improper, the objection must be made before the answer is given. For example, objections to the form of a question must be made immediately after the question and before the answer. If a question is proper but the response is inadmissible, an objection should be made as soon as the inadmissible evidence becomes apparent. For example, if a witness begins to testify to inadmissible hearsay, the opposing attorney should interrupt and make an objection.

An untimely objection interjected too late, however meritorious, is ordinarily overruled. Late objections are also ineffective because the inadmissible evidence has been presented. If an objection is made after the evidence is introduced, an error may not be preserved for appeal.

Attorneys should avoid making premature objections. If an objection to the content of a statement is available, the lawyer must object to the question that introduces the objectionable content. For example, an objection to the preliminary question, “Do you have an opinion about the defendant’s condition?” is premature, but the lawyer should object to the follow-up question seeking an improper opinion, “What is that opinion?” Similarly, a hearsay objection to the question, “Did you have a conversation with the witness?” is premature. The timely objection should be made to the next question, “What did the witness say?”

This task is made difficult by the fact that witnesses may not commonly respond to the precise wording of questions. The question “Do you have an opinion?” often produces the opinion rather than the anticipated “Yes” answer. If a witness appears inadequately prepared or may spontaneously introduce improper evidence, an objection may have to be made to the preliminary question in order to prevent these nonresponsive answers. If the premature objection is overruled, the objecting lawyer will need to restate the objection after the next question.

Example (Direct Examination):

Examining Attorney:

Q: Did you and Dua Lipa speak to each other?

Objecting Lawyer:

I object your Honor, that question calls for hearsay.

Judge:

The objection is premature, the witness may answer.

A: Yes, we did.

Examining Attorney:

Q: What did Ms. Lipa sing. . .rather say?

Objecting Lawyer:

Objection, hearsay.

Judge:

Sustained.

When the witness responds to a question calling for a yes or no response with a further response, the attorney can object to the answer because it goes beyond the scope of the question.

Example (Direct Examination):

Examining Attorney:

Q: Katniss Everdeen, do you have an opinion regarding the importance of the Hunger Games?

A: Yes, I do. It’s very likely that the . . .

Objecting Lawyer:

Your Honor, I object. The question has been answered.

Arbitrator:

Sustained.

The witness should stop answering the question once the objection is made. If the witness continues to answer, the opposing attorney should interrupt and ask that the witness be directed to stop answering. If the examining lawyer is asking questions too rapidly, or if the witness is answering too quickly, the decision maker may be asked to direct the lawyer or witness to proceed at a reasonable pace that provides an opportunity to object before the witness responds.

C. Phrasing Objections

The proper way to object in most jurisdictions is to say “objection” and state the specific ground or grounds with a few identifying words. This method is simple, quick, and advises the decision maker of the ground(s) for the objection. The applicable rules of evidence ordinarily require the objecting attorney to state the specific reason(s) supporting the objection. See, e.g., Fed. R. Evid. 103(a)(1). More than one ground may support an objection, and a lawyer should state all applicable grounds. If counsel does not advance a specific reason and the ground for the objection is apparent from the context of the evidence, an objection may be sustained.

Using the name or title of the rule involved is usually sufficient: “Your Honor, objection, hearsay.” Or “We object on the grounds of hearsay.” Some decision makers may expect the attorney to preface an objection with the phrase “Your Honor.” Also, the addition of a descriptive term to an objection in a jury trial is advisable so the jury may understand the grounds for the objection: “Objection, unreliable hearsay.” Many decision makers expect lawyers to use specific words in making an objection, requiring the lawyers to be very precise. A few even require objecting attorneys to refer to specific evidence rule numbers.

D. Outside Hearing of Jury

Trial proceedings should be conducted so that the jury does not hear inadmissible evidence, arguments, and statements. Comments by counsel, lengthy objections, and offers of proof must be made outside the hearing of the jury. Jurors should not be influenced by inadmissible evidence or the explanations of counsel. Fed. R. Evid. 103(d).

“Speaking objections”—arguments in front of the jury—are ordinarily inappropriate. If an attorney needs to explain an objection, permission to approach the bench should be requested and the arguments made quietly at the bench. If an objecting attorney persists in arguing an objection in front of the jury, the other lawyer should interrupt and request permission to approach the bench. When an attorney argues in a voice loud enough for jurors to hear, the judge should be asked to admonish the attorney and instruct the jury to disregard the argument.

A fine line may exist between appropriate descriptive statements and improper speaking objections. For example, an objection may be stated: “Counsel is attempting to present unreliable and untrustworthy hearsay through this witness.” This statement explains the grounds of the objection and helps the jury understand the evidentiary problem. While some judges may allow this, others prohibit this lengthy a statement.

An attorney needs to adapt objection procedures to the judge’s preferences. Some judges prefer a lengthier explanation of an objection instead of a few descriptive words, and the attorney should provide the judge with that information. Some judges inappropriately allow “speaking objections” instead of requiring conferences at the bench. This practice results in lawyers making arguments within the hearing of the jury.

E. Legal Support

Some objections or responses need to be further explained. When an anticipated objection is made to a vital piece of questionable evidence, it may be useful to have a short, one or two paragraph or page, memorandum supporting or opposing the objection. This concise brief summarizes the law, eliminates an extemporaneous argument, and demonstrates the lawyer is serious about a position. A responsive memo may favorably sway a close evidentiary ruling.

F. Attorney Demeanor

Objections should be made in a firm, clear voice and in a professional and reasonable manner. Objections and responses should always be directed to the decision maker and not to opposing counsel. Arguing with opposing counsel may draw an admonition from the decision maker and should be avoided. A calm, sensible approach is usually most effective, unless the situation requires that an attorney be assertive or talk in a forceful voice to interrupt an unacceptable question or prejudicial response.

Responses to adverse rulings should also be professional and respectful. Statements of disapproval or nonverbal behavior demonstrating disappointment are usually inappropriate and rarely necessary, even to highlight outrageous improper evidence or conduct. Decision makers deserve appropriate respect, even if wrong.

G. Responding to Decision Maker

An attorney may need to respond to decision makers who attempt to unduly restrict the ability to make or explain objections. They may want the case to proceed as quickly as possible, and some will pressure lawyers not to make objections. Occasionally, a judge may make comments in front of the jurors about what the judge perceives to be wasteful and time-consuming objections. Lawyers cannot always please decision makers or do what they prefer. It is the responsibility of the advocate to prevent the opposing attorney from introducing inadmissible evidence and to preserve grounds for an appeal. If the decision maker improperly interferes with objections, counsel may object to that improper conduct and assert that the interference is adversely affecting the case.

H. Continuing Objections

If an objection has been overruled and subsequent questions are asked on the same subject, the objecting attorney may consider making a “continuing” objection to subsequent questions and answers on the same matter. A continuing response may eliminate the need for the attorney to repeatedly object after each question or answer. Not all tribunals or jurisdictions recognize continuing objections. A problem with their use is that there is no specific objection on the record to individual questions or answers, and it may be unclear regarding what the complaint covers.

The lawyer should define the scope of the continuing objection as precisely as possible. Instead of saying, “I object to this entire line of questioning,” the attorney should say, “I object to all the testimony about the identification of Exhibit No. 9 on the ground that. . . .” The lawyer should also be alert to additional grounds that arise during subsequent testimony.

If another ground becomes apparent during the line of questioning, that ground should be added to the continuing objection. If the scope or grounds cannot be made clear with a continuing complaint, a more effective tactic may be to repeat objections to specific questions and answers. While repetitive responses may be disfavored and disruptive, they remove any doubt regarding the grounds and scope and avoid the inadvertent waiver of critical objections.

I. Responding to Objections

Usually, the examining lawyer need not say anything in response to an objection by opposing counsel. Sometimes the decision maker asks the lawyer to argue against the objection. In jury trials, if the examining attorney wants to make a brief statement in opposition to an objection, it may be stated in front of the jury. If the attorney wants to argue further, the attorney should approach the bench and make the argument there.

J. Presenting Contrary Evidence

An objecting attorney may have an opportunity to offer contrary evidence—to establish that an objection should be sustained—before a ruling on the objection. These situations arise when it must be initially determined whether sufficient evidence exists to support the admissibility of additional evidence or if a factual or legal impediment bars further evidence. These events do not occur often, and when they do, opposing counsel will need to pursue grounds for an objection.

There are two ways an opposing attorney may introduce contrary evidence. The first way is by questioning the witness to lay the grounds for an objection. The second way, which is only used occasionally, is through extrinsic evidence.

1. Questioning the Witness

The most common way for an opposing attorney to introduce contrary evidence is to request permission to interrupt the examination to ask questions of the witness for the purpose of establishing grounds for an objection. The procedure—also known as “voir dire” of a witness—consists of counsel examining the witness, usually through leading questions, to establish facts in support of a ruling that subsequent evidence is inadmissible. For example, the witness may identify a document that the proponent offers. The opposing attorney may question the witness to show the witness is unable to properly authenticate the document.

“Voir dire” questioning of a witness may be permitted if the advocate appears able to establish the inadmissibility of the evidence. Usually, the opposing attorney can ask a reasonable number of questions to establish the lack of admissibility. These questions, which interrupt the direct examination, may not develop into broader questions that should be asked on cross-examination.

Questioning that extends beyond proper “voir dire” and into cross-examination should be objected to as improper. Some lawyers attempt to use “voir dire” to disrupt the direct examination. This tactic is improper unless there is a good faith basis to establish contrary evidence supporting the objection.

Example (Direct Examination):

Examining Attorney:

Q: Ms. Gaeta, please describe the contents of the frozen pizza you bought.

Objecting Lawyer:

Your Honor, may I voir dire the witness by asking a few questions to lay the foundation for an objection?

Judge:

Yes, you may.

Objecting Lawyer:

Q: You are not a food scientist are you?

A: No.

Q: You didn’t test any of the ingredients in the pizza did you?

A: No.

Q: You did not read the label did you?

A: No.

Q: You didn’t finish eating all the pizza?

A: I could not.

Q: And by looking at it you couldn’t tell what it was made of?

A: That’s for sure.

To the Court:

Your Honor, I object to any further testimony by this witness about the contents of the Montecarlo pizza on lack of foundation and an improper opinion.

Judge:

Sustained.

2. Extrinsic Evidence

Extrinsic evidence is evidence from a source other than the testifying witness, such as another witness or document. Extrinsic evidence may be admissible if an opposing attorney challenges the competency of a witness or claims the existence of a privilege. For example, a witness testifies on direct examination that she is not married to the defendant and that she had a private conversation with the defendant which the examining lawyer plans to have her disclose. The opposing attorney may object on the grounds of marital privilege and offer a marriage certificate as extrinsic evidence. The reason that situations involving the use of extrinsic evidence are rare is that these problems are usually taken care of by a motion in limine or before the witness testifies.

Rulings

A. Broad Discretion

Decision makers have broad discretion in ruling on the admissibility of evidence. The standard used to determine the admissibility of evidence is whether there exists “evidence sufficient to support a finding” of the proposition sought to be proven. See Fed. R. Evid. 104(a) & (b). If the support is insufficient, the evidence is inadmissible.

B. Prompt Ruling

Ordinarily, decision makers rule immediately after an objection and say “sustained” (the objection is valid) or “overruled” (the objection is denied). Usually, they do not state a reason for the ruling because the reason is the same ground the objecting attorney asserted, and adequately describes the defect in the question or answer. Most do not sustain an objection unless the objecting lawyer correctly states the ground for the objection. Even if a question or answer is objectionable, many do not sustain an objection if counsel states an incorrect ground. While they have discretion to exclude inadmissible evidence on their own (in the absence of any objection or supporting grounds), they may not exercise this discretion.

C. Provisional Ruling

In some situations, decision makers make provisional or conditional rulings that can be reconsidered at a later stage of the case. They reserve the opportunity to change the ruling depending on subsequent events in the case that may affect the admissibility of the evidence. Objections based on irrelevancy, lack of foundation, or improper lay or expert opinion may result in conditional rulings that allow evidence to be admitted subject to reconsideration. For example, a judge may overrule a relevancy objection because the examining lawyer advises the judge that the relevancy of this evidence (Evidence A) depends upon the later admission of related evidence (Evidence B). The judge may overrule the objection and allow Evidence A on the condition that Evidence B is presented. If Evidence B is not subsequently admitted, the objecting attorney may renew the objection to Evidence A and the court will sustain it and exclude Evidence A.

Example (Direct Examination):

Examining Attorney to the Judge at the Bench:

Your Honor, at this time we offer Exhibit No. 35. We realize that we need to provide another witness in order to establish the complete foundation for chain of custody. We’ll do that through Mr. Hercules, who is available as a witness tomorrow. We ask the court to provisionally admit Exhibit 35 with our assurance that we will connect the foundation with his testimony.

Judge:

With that assurance I will conditionally accept Exhibit No. 35.

D. Inquiring About Ruling

If an objection is sustained or overruled and the reasoning supporting the ruling is unclear, the attorney may ask for an explanation. In some jurisdictions, the attorney has a right to such an explanation. The objecting lawyer may be asked to explain the ground for the objection.

If the lawyer believes an incorrect ruling was made, the lawyer may request that the ruling be reconsidered. Decision makers do not often change their rulings, and this tactic may waste time. They may simply have an understanding of evidence—whether right or wrong—that is different from counsel, and no purpose is served by arguing with them. If, for example, an arbitrator sustained a leading objection, the examining lawyer should rephrase the question rather than try to persuade the arbitrator that the situation falls within an exception to the leading question rule. However, in some situations an explanation of the reasons may be effective. For example, an arbitrator may sustain a relevancy objection because the arbitrator does not foresee any issue the evidence supports. An explanation connecting the issue to the facts may cause the ruling to be changed and the evidence allowed.

E. Renewing an Objection

If an objection is promptly overruled, the objecting lawyer can ask to be heard further. Decision makers often refuse this request because they are confident of their decision. A more effective practice for counsel is to object to the next related question or answer. Perhaps then the grounds for the objection will be more apparent, and it will be sustained. Counsel should be persistent and respectful in pursuing correct objections.

F. Pursuing Objections

An objection may be overruled as being premature, as explained in Section 4.3(B). The attorney should make objections to subsequent questions to make certain the rules are being applied consistently. For example, an attorney may object to the question “Did you form an opinion after your examination?” anticipating that the witness will give a narrative response. The administrative law judge may overrule the objection because this question calls for a permissible yes or no answer. The attorney should then object to subsequent questions regarding the content of the opinion.

G. Obtaining a Ruling

A decision maker may fail to make a ruling on an objection, either by mistake or to avoid deciding. Some will be uncertain about what to rule. Others have figured out that if they don’t make any ruling they may not be able to be reversed on appeal for making a wrong decision. Attorneys have a right to a ruling and should insist on one. Fed. R. Evid. 103.

Example (Direct Examination):

Examining Attorney:

What did Mr. Morse say about this new invention?

Objecting Lawyer:

Objection, hearsay.

Judge:

All right, go on, continue.

Objecting Lawyer:

Your Honor, before we continue, I objected to the last question on the grounds of hearsay.

Judge:

Overruled.

Witness:

He said, “What hath God wrought?”

Examining Lawyer:

Whom was he quoting?

Objecting Lawyer:

Objection, irrelevant and hearsay.

Judge:

Next question.

Examining Lawyer:

Your Honor, may the witness answer the last question?

Judge:

No, sustained.

Objection Procedures

A. Motions In Limine

A motion in limine (meaning at the threshold) seeks an advance ruling regarding the admissibility or inadmissibility of evidence. In criminal cases, these rulings are commonly sought through suppression motions to attack the admissibility of evidence on the grounds that the evidence violates constitutional rights, statutory provisions, or the rules of evidence. See, e.g., Fed. R. Crim. P. 41. Motions in limine are also common in civil cases to obtain an advance evidentiary ruling. Section 3.8(C)(2) introduced motions in limine.

Motions in limine are commonly brought prior to jury trials to avoid the prejudicial impact of inadmissible evidence on the jurors, and they also serve a purpose in non-jury trials. Obtaining an advance ruling makes clear what questionable evidence is or is not admissible in a bench trial, administrative hearing, or arbitration. This ruling assists in determining the most effective case strategies based on the admissible evidence.

1. Purposes

Motions in limine may be brought for several purposes:

• To require opposing counsel to obtain a ruling on admissibility before evidence is offered. This motion in limine seeks a ruling requiring opposing counsel to lay a proper and complete foundation before the evidence will be admitted. Examples of such evidence include the facts to authenticate a document and the foundation required to comply with the original writing (best evidence) rule.
• To obtain a preliminary ruling that evidence offered by the proponent is admissible. This motion is made by the proponent of the evidence who seeks an advance ruling that certain evidence will be later admitted. A proponent may have some evidence that the opposing party opposes and may want to know prior to its presentation whether the evidence will be admitted in order to effectively prepare and plan. Examples of this type of evidence include photos that contain relevant but grisly depictions or expensive demonstrative evidence. Before parties expend significant efforts creating exhibits, they may prefer to obtain a ruling that the evidence will be admissible.
• In a jury trial, to prohibit opposing counsel from introducing or mentioning objectionable evidence in the presence of the jurors. A ruling can be sought prohibiting the use of evidence that is barred by any exclusionary rule of evidence, such as unfairly prejudicial or irrelevant evidence or inadmissible hearsay. A favorable ruling prevents the jurors from becoming aware of and being influenced by inadmissible evidence and from suspecting that the objecting attorney is trying to hide evidence from them. Examples of this type of evidence include the questionable admissibility of a prior criminal conviction or of subsequent remedial measures taken by a defendant in a tort case.

A motion in limine presumes that the opposing party plans to object to the introduction of the evidence. The advantage of the motion is that a favorable ruling assures the proffering attorney the evidence can be referred to during opening statement and can be introduced as evidence during the case. The disadvantages are that the importance of certain evidence is highlighted and opposing counsel may be prompted to strenuously object where otherwise they may not have done so.

2. Motion Procedure

Motions in limine may be made either in writing or orally on the record, depending on the nature of the issue and applicable rules. There is usually no specific limit regarding the number of motions that may be made, but strategy and common sense restrict motions to vital evidence. A decision maker who faces a barrage of motions regarding routine evidentiary issues may be inclined not to consider such motions seriously.

Motions in limine usually require that reasonable, advance notice be given to the opposing attorney. The timing of the notice depends on the nature of the motion, the rules of the jurisdiction, and the evidence in question. Many tribunals require that motions in limine be brought in writing a reasonable time prior to a case deadline to provide the opponent with an opportunity to respond. Other forums permit motions in limine to be made orally at the beginning of and during the trial or hearing.

If a party plans to offer or seeks to exclude crucial evidence, it is best to submit a written motion with notice to the opposing attorney so that memoranda can be submitted and a full hearing held on the issues. When an attorney seeks to introduce or oppose the introduction of routine real evidence or standard demonstrative evidence, an oral request made on the eve of the presentation may be sufficient. The pretrial or prehearing conference timely scheduled before the case is tried may involve the decision maker reviewing and deciding on the admissibility of witness testimony and exhibits.

A motion in limine should state the specific relief sought and the grounds supporting the motion, along with supporting authorities. An opposing attorney can explain during argument why an evidentiary motion is brought early rather than later during the case. Some decision makers prefer deferring or denying motions in limine until the evidence is introduced during the trial or hearing. An advocate has to overcome this preference by explaining why a preliminary ruling is necessary.

3. The Order

The order granting the in limine motion must specify the evidence that is excluded or ruled inadmissible. An order that is overly broad may exclude otherwise admissible evidence and become the ground for a new trial or reversible error. An order that is ambiguous may permit opposing counsel to refer to questionable evidence while still complying with the order. The order, whether written or recorded orally, must be specific and clear as to what evidence is to be excluded or admitted. If there is doubt about the scope of an order, counsel should ask to have the order clarified.

Decision makers have broad discretion and several options when ruling on a motion in limine:

• They may refuse to hear the motion because it is untimely. Advance notice of a motion provided to opposing attorney prevents the opponent from claiming surprise and prejudice and reduces the likelihood the motion will be refused.
• They may defer ruling on a motion until later and reconsider the motion immediately prior to the time the evidence is offered. It may be unfeasible or difficult to make an advance ruling because it is not clear from the arguments or the context whether the evidence is admissible. They may delay a ruling until the evidence is developed during the case.
• They may deny the motion but permit the moving attorney to bring the motion again for reconsideration during the case, for the same reasons explained above.
• They may grant only part of the relief sought in the motion in limine. If the motion seeks to totally exclude a piece of evidence, a part of the evidence may be introduced. Or, if the motion seeks to exclude evidence that is offered to prove several issues, the evidence may be limited to prove only a few matters. See Section 4.5(E) on limited admissibility.
• They may enter a conditional order requiring that specific facts be introduced during the case as a condition for the introduction of the disputed evidence. If the specific facts are not introduced, the conditional ruling takes effect and the evidence is excluded. The intent of a conditional order is to inform advocates that certain facts must be offered before a final ruling can be enforced. See § 4.4(C).
• They may fully grant a motion in limine to allow specific evidence or to exclude evidence preventing any reference either directly or indirectly to the inadmissible evidence.

4. Preserving Error

A ruling on a motion in limine usually preserves that evidentiary issue as a ground for a new trial and an appeal. In most jurisdictions, there need not be any further evidentiary offer or objection made during the case because the previous ruling is on the record. In some jurisdictions, a party who loses a motion in limine may need to take further steps to preserve the evidentiary issue. For example, if a motion in limine to exclude evidence is denied, the losing attorney may need to specifically object to the actual introduction of the disputed evidence to properly preserve the issue.

5. Violation of Order

In a jury trial, the violation of an order granting a motion in limine may result in reversible error, especially if a judge does not properly instruct a jury to disregard the excluded evidence. The intentional violation of an order may subject the offending attorney to sanctions that may include rejection of the evidence, a reprimand, and the imposition of attorney fees. An inadvertent violation of an order may be excusable if it is not the result of negligence. Lawyers have an obligation to inform their witnesses of the effect of the ruling. If evidence is excluded, counsel must advise witnesses not to volunteer such evidence.

Example (Motion In Limine and Order):

Motion in Limine

Defendant Jacqueline Wade moves this court for an order stating that Plaintiff St. Elsewhere Hospital makes no reference to the August 15 medical malpractice insurance agreement between St. Elsewhere and Dr. Wade on the grounds that it is irrelevant and unfairly prejudicial. Defendant supports this motion with a proposed order and memo.

Order in Limine

This court orders that Defendant Dr. Wade’s motion in limine is granted and orders Plaintiff St. Elsewhere Hospital to make no reference during this trial to the medical malpractice insurance agreement between Dr. Wade and St. Elsewhere Hospital dated August 15.

B. Offers of Proof

When an objection is sustained and important evidence excluded, the examining attorney may make an offer of proof to explain the evidence and reasons in support of its admissibility and/or to sufficiently preserve the error for appellate review. Fed. R. Evid. 103(b) & (c). The offer of proof provides a description of the rejected evidence so the decision maker can understand its relevance or other grounds for it being admissible, and the description also allows an appellate court to review the proffered evidence and determine the significance of its exclusion. Opposing counsel may assert other objections after the offer has been made.

The offer of proof provides an opportunity for the decision maker to reconsider the initial ruling. The offer affords an occasion for the examining lawyer to explain why the evidence is admissible. In some cases, after the proposed evidence is described, it becomes clear why it is not objectionable and ought to be admitted. If an offer of proof is not made and the banned evidence is not clear and obvious from the record, appellate review is ordinarily unavailable. For these reasons, it’s usually wise to seek permission to make an offer, especially for critical evidence.

There are three ways to make an offer of proof, each of which involves an explanation of the anticipated evidence and the grounds for its admissibility.

1. The Examining Attorney May Summarize the Evidence

This is the most common way of making an offer of proof.

Example (Direct Examination):

Examining Attorney:

Q: During that afternoon conversation, what was the first thing Carl Spackler said to you?

Objecting Lawyer:

Objection, hearsay.

Judge:

Sustained.

Examining Attorney:

Your Honor, may I make an offer of proof?

Judge:

You may.

Examining Attorney:

Judge, the evidence will demonstrate that the witness had knowledge of the defect before the accident. The witness will testify that Mr. Spackler told her that he knew that the repairs on the golf cart were not completed on September 1.

2. The Offering Attorney May Submit an Exact Statement of the Proffered Testimony

The prepared statement may state precisely the quoted testimony or expected evidence. These first and second methods are usually adequate to create a sufficient record.

Example (Continued):

Examining Attorney:

More specifically your Honor, at the time Mr. Spackler made the statement that “I know the repairs were not done by September 1” he was still an employee of the defendant, and the statement is an admissible party admission.

Objecting Lawyer:

Judge, but he didn’t have personal knowledge of the repairs.

Judge:

An employee agent need not have personal knowledge if the statement refers to matters within the scope of employment. I’ll change my ruling and overrule the objection.

3. Counsel May Ask the Witness to State What the Testimony Would Be in a Question/Answer Format

The examining lawyer asks questions which reveal the specific evidence in issue, outside the hearing of the jury in a jury trial. This method is the most time consuming but is also the most accurate. This format reflects the exact questions and answers and not just a summary or statement. This method is used primarily in situations where an exact transcript of critical evidence is preferred.

C. Motion to Strike

A motion to strike may occur after a witness has made an improper statement or evidence has been wrongfully offered and an objection has been asserted. Fed. R. Evid. 103(a). The motion may accompany the initial objection or may follow after the objection is sustained. The purpose of the motion is to make clear that the improper statement or inadmissible evidence is not to be considered by the fact finder. Section 3.8(C)(4) explained the procedure for making a motion to strike, and why it may serve no useful purpose because nothing is ever actually stricken. Although a motion may clarify the scope and extent of the excluded evidence, a motion to strike should not be made unless it serves a valid purpose or it is a common practice in the forum.

D. Request for Curative Instruction

A motion for a curative instruction attempts to repair the harm done by an improper question, inadmissible answer, or unacceptable evidence in jury trials. After an objection has been sustained, the objecting lawyer may immediately ask the judge to instruct the jurors that they must disregard what they heard. See Fed. R. Evid. 103(d). While completely ignoring some facts may be difficult, jurors usually follow the judge’s admonition. If told they cannot consider inadmissible evidence, they usually will comply, particularly if the party causing the error appears to be acting unfairly. The disadvantage of a curative instruction is that the jury is reminded of the evidence and may remember and understand it better than if it was ignored.

Example:

Objecting Lawyer:

Objection, your Honor. The response is inadmissible hearsay.

Judge:

Sustained.

Objecting Lawyer:

I ask that the jury be instructed to disregard that answer.

Judge:

Members of the Jury, you are to disregard the testimony about the conversation between this witness and Saint Therese.

E. Limited Admissibility

Evidence that is admissible for one purpose but not for another may be admitted for a limited purpose when requested by counsel. Fed. R. Evid. 105. For example, a repair bill may be admissible to prove it was paid but inadmissible hearsay to prove that actual repairs were done. The bill can be received for the limited purpose of proving payment.

A judge in a jury trial has several options in determining what to do with evidence that is admissible to prove some facts but not other facts:

• The judge could admit the evidence and instruct the jury regarding its import.
• The judge could admit the evidence without comment.
• The judge could exclude the evidence if it is unfairly prejudicial and the impact outweighs the probative value of the evidence.
• Separate trials could be held regarding severed issues or claims if overlapping critical evidence affects the outcome.

The first option is the most common solution: The judge admits the evidence but limits its scope.

Example:

Judge:

Members of the Jury, evidence in this case regarding a specific GIF is being introduced for a limited purpose. When you see this evidence now, and when you consider it during your deliberations, you are to use it only to determine whether it was a reasonable reply to the controversial text X. You are not to use it to decide who created it, nor for any other purpose.

The judge may repeat the limiting instruction after the evidence has been received or a line of questioning completed, depending upon the nature and impact of the evidence. The judge may repeat the limiting instruction during final jury instructions at the end of the case.

Limiting instructions have limits. The jurors who hear the evidence may disregard the limiting instructions and use the evidence broadly to prove other matters. For example, if a repair bill is received with a limiting instruction, the jurors may nonetheless infer that the repairs were properly completed because the bill would not likely have been paid.

F. Questioning Witnesses

Decision makers may be able to ask appropriate, reasonable questions of witnesses. They should not take charge over a witness examination, appear to favor a party, or unnecessarily interfere with an examination. They should preserve an atmosphere of impartiality and detachment and exercise self-restraint. Counsel should be allowed to object to any questions and be provided an opportunity to ask related questions.

In a jury trial, a judge may question a witness to provide the jurors with accurate or unambiguous testimony. In civil cases, judges may be inclined to do so, whereas in criminal cases judges will be disinclined to interfere with the case presented by counsel. No judge should ask questions to unfairly influence a jury.

In a bench trial, the judge, as the finder of facts, may want or need to ask questions to clarify an important matter or to supplement questions asked by counsel. Some judges view their role differently and prefer not to seek additional evidence. No judge should improperly intervene in a case.

In some administrative hearings, the hearing examiner will initiate witness examinations and ask many questions allowing the attorneys to ask further questions. In other administrative hearings, the judges act similarly to judicial judges in bench trials. In arbitrations, the arbitrator may ask clarifying questions and not commonly seek answers regarding matters or issues not presented.

An attorney may object to any improper question that violates a rule of evidence and may ask for a ruling. This objection can be difficult to make because counsel is challenging the propriety of the inquiry and may alienate the decision maker. If the question is inappropriate, the objection should be made and hopefully sustained. Counsel should object to exclude inadmissible evidence or to make a record for appeal.

Example:

The family of a patient institutionalized with mental disorders initiates an administrative case against the institution for causing and aggravating these disorders. The patient is called as a witness. The ALJ interrupts the direct examination and asks:

Administrative Judge:

Q: You said your nurse hit you, Mr. Solitano. When?

A: Whenever, you know. . . I started to dance.

Q: And she struck and punched you every time you danced?

A: I think so. . . .

Q: Why do you imagine she did something as cruel as that?

Objecting Lawyer:

I object. Your Honor, your questions are leading and speculative.

G. Commenting on Evidence

Most state court jurisdictions prohibit a trial judge from commenting on or expressing opinions about the evidence in a jury trial. Judges usually adhere to this policy and do not comment on the evidence. If they violate the applicable prohibition, an objection should be interposed.

Federal judges and some state judges may comment on the evidence and opine regarding the weight or sufficiency of the evidence and the credibility of witnesses. They may make such comments at the time they instruct the jurors. If a judge comments on the evidence, the judge must also advise the jurors that they are the sole finders of fact and they may reach a conclusion contrary to the judge’s comments. If a judge improperly refers to the evidence, counsel should make an appropriate objection to such a misstatement.

Example:

Objecting Lawyer:

Objection, Judge Harm. We respectfully submit that your Honor has improperly commented on the virtual reality evidence, improperly expressed an opinion regarding its weight, and improperly made remarks concerning the credibility of avatar witnesses.

Comments about evidence by a judge, arbitrator, or ALJ may assist counsel regarding evidentiary issues. Negative comments may help an attorney in ascertaining what additional or alternative evidence may be needed in light of the remarks. Positive comments may aid a lawyer in understanding the impact and effect of certain evidence.

H. Preserving Evidentiary Error

An evidentiary error is properly preserved in trials and hearings with a record if steps are taken to make a record of the error and to provide notice and an opportunity to correct the error or reduce its prejudicial impact. Fed. R. Evid. 103(a). Section 3.12(A) explained this process. To preserve an evidentiary error for appeal, counsel must usually:

• Timely object on the record.
• Specifically state all available grounds. The failure to state a ground usually waives the omitted ground, unless it is readily apparent from the context.
• Include the evidentiary error in a motion for a new trial or hearing.
• Raise the specific evidentiary issue on appeal.

If the error occurs as a result of the introduction of inadmissible evidence, the opposing attorney may request a curative or limiting instruction, and make a motion to strike, if appropriate. If the objection is sustained, the examining attorney may make an offer of proof. See § 4.5.

I. Motion for Mistrial

Inadmissible evidence that has been improperly admitted may be a ground for a mistrial. See § 3.8(C)(9). The inadmissible evidence must be so unfairly prejudicial that a party is denied a fair trial because of its adverse impact. In jury trials, a proper curative instruction is usually sufficient to reduce the harmful effect of inadmissible evidence. If the unfair impact cannot be sufficiently cured, a mistrial could be granted.

Example:

Objecting Lawyer:

Objection, your Honor. Counsel has explicitly referred to evidence that your Honor previously ruled inadmissible. We now move for a mistrial on the grounds that this misconduct is so unfairly prejudicial that my client is denied a fair trial. A curative instruction will not remove from the minds of the jurors what they heard and saw about the viral contagion. This inadmissible and highly prejudicial information prevents the jury from considering the evidence in a fair and impartial manner. Furthermore, I ask that you admonish Arthur Kirkland for his gross misconduct.

J. Prejudicial Error

In order for an evidentiary error to be a prejudicial (reversible) error, the error must adversely affect a substantial right of a party. Section 12.5(F) describes the requirement of prejudicial error to support the granting of a new trial or hearing. An unfair prejudicial error may involve a significant evidentiary fact or may be based on numerous errors that cumulatively violate a party’s right to a fair proceeding.

An evidentiary ruling may be incorrect but only amount to “harmless error,” which is an error that does not substantially prejudice a party. Most evidentiary mistakes during a case are harmless and not sufficiently prejudicial to warrant reversal. An appellate court does not often order a new trial or hearing solely based on evidentiary error.

An error of great magnitude may occur during the conduct of the case, and the appellant’s attorney may fail to timely and properly object. The “plain error” doctrine permits the appellate court to reverse a decision based on an error that is obvious and that adversely affects substantial rights of a party, even though the error was not properly preserved. Fed. R. Evid. 103(a). See § 12.9(D)(1)(c). This ground and appellate reversal seldom occur.

K. Appellate Review

Appellate courts allow trial judges wide latitude in deciding whether to admit or exclude evidence. This latitude affects the judgment of trial judges in making evidentiary rulings. Many are inclined to admit questionable evidence and overrule objections that seek to exclude borderline evidence. These judges reason that jurors can assess the weight afforded such evidence and base their verdict on reliable evidence.

An appellate court is more likely to reverse an evidentiary ruling if a judge excludes evidence, than if the judge admits the evidence. The reasoning is that the exclusion of evidence from consideration by the fact finder may deny a party a substantial right based on incomplete evidence. Consequently, judges, in ruling on close evidentiary issues, are more inclined to admit rather than exclude evidence. Similarly, arbitrators and administrative judges tend to accept evidence because one of the grounds to challenge a decision or an award is improper evidence exclusion.

The standard of review that an appellate court employs depends on the evidentiary error that has been made. Section 12.9(G) explains the various standards of review (e.g., de novo, clearly erroneous, abuse of discretion), which also apply to evidentiary rulings. LLMs can assist in identifying potential evidentiary objections in specific cases and reveal outcomes of objections interposed in previous trials and reviewed in appellate decisions. See §§ 1.1(C) & 1.10(E).

Objections to Direct

Examination Questions

This section explains common objections to the improper form of questions asked on direct examination. The cross-examiner can use these objections to compel the direct examiner to ask proper questions. Some of these objections may also apply to questions asked on cross-examination. And, as suggested above, LLMs can identify the prospects of potential objections available during particular witness examinations. See § 1.1(C).

A. Leading

Leading questions are questions that contain and suggest the answer. Asking an improper leading question during direct examination is objectionable. Fed. R. Evid. 611(c). The problem with leading questions is that the lawyer in effect is testifying instead of the witness.

Leading questions are permitted in limited situations during direct examination. See § 7.7(B). Leading questions are readily permitted on cross-examination, unless, in some jurisdictions, the witness is clearly supportive of the party represented by the cross-examiner.

Example (Direct Examination):

Examining Attorney:

Q: Ms. Dickens, you were not convinced it was the best of times and the worst of times, were you?

Objecting Lawyer:

Objection, leading question.

Or

Objection, counsel is testifying and leading.

Arbitrator:

Sustained.

In order for a question to be leading, it must suggest and contain the answer. Usually, a leading question is one that can be answered by a “yes” or “no” or a specific one or two word answer contained in that question. Questions that call for “yes” or “no” or a short specific answer are not leading if they do not include the answer.

Even if leading questions are asked, there may not be any tactical advantage in objecting to them. If the questions do not involve significant or important evidence, there may be no reason to care about the responses. Or, counsel may be doing such a poor job of presenting favorable evidence, there is no reason to assist them by making them ask more effective, non-leading questions. Leading questions are often ineffective on direct because the lawyer is telling the story and the witness is merely affirming the lawyer’s testimony, leaving the fact finder with an incomplete source of evidence or an unfavorable view of the credibility of the witness.

Responses to a leading objection:

• Rephrase the question and ask a non-leading question.
• Explain that the question falls within one of the permissible uses of leading questions on direct. See § 7.7(B).
• Explain that the case will proceed more efficiently if there are a reasonable number of leading questions. Efficiency may be preferred over strict adherence to evidence rules.

B. Narrative

An objection may be made to a question that calls for a narrative answer or to an answer that turns into a narrative. Fed. R. Evid. 611. Our justice system involves witnesses telling their story through questions asked by counsel. An improper narrative question allows the witness to tell a long, uncontrolled story. For example, “In your own words, Mr. Hamilton, tell us everything that happened to you on July 11.”

Narrative questions allow the witness to interject inadmissible testimony without giving the opposing attorney a reasonable opportunity to object in a timely manner. Sometimes a witness will give an improper narrative response to an otherwise permissible question, and the narrative answer may be objected to as non-responsive. As a tactical consideration, counsel may not want to object to a narrative response if the “rambling” testimony tends to make the opponent’s direct examination ineffective.

Example:

Examining Attorney:

Q: Ms. Kellogg, what happened as you pushed your shopping cart down the cereal aisle at Kikuyu’s market?

A: I went to the center aisle to pick up my six-year-old’s favorite cereal. When I reached for a box of Frosted Flakes, my right foot suddenly slid sideways. I kept sliding. I didn’t notice the wet slippery floor. My ankle turned, and I fell down on my right hip. I couldn’t move. I felt nauseated. I then saw the liquid spots on the floor. Everything then went black and white. I heard people talking, but I couldn’t focus. The next thing I recall is waking up in the hospital and feeling…

Objecting Lawyer:

Objection. Improper narration.

Judge:

Sustained.

A narrative answer is improper because our system requires specific answers to questions and not rambling responses to undirected questions. A decision maker has discretion to sustain or overrule a narrative objection and will consider the scope of the question, its timing, the preparation of the witness, the ability of the witness to be responsive, and the ability of the lawyer to control the examination.

Broad questions may well be appropriate. Potentially objectionable narrative questions will be allowed because the witness will only give a brief response and counsel can control the examination. For example, the attorney may ask the witness “Then what happened?” This question, if literally answered, would permit the witness to provide a lengthy response explaining everything that happened. A well-prepared witness will ordinarily give a short response, and the examining attorney will follow up with a responsive question, such as: “Then what happened after you arrived at Angkor Wat?”

Responses to a narrative objection:

• Politely interrupt the witness and stop the rambling.
• Ask a specific question to maintain control of the direction of the examination.
• Explain that these open-ended questions save time.
• Explain that the narrative answers cover uncontroverted, or preliminary matters and not significant issues in the case.
• Say to the witness: “I will now ask you some specific questions to which you can give responsive answers.”

C. Non-Responsive

A non-responsive or volunteered answer occurs when a witness provides information not required by the question. Any response that extends beyond the specific information required is objectionable. Fed. R. Evid. 403 & 611. Some authorities believe that only the examining attorney can make this objection. In practice, an opposing lawyer’s objection to the witness on direct examination who testifies in a non-responsive manner will usually be sustained.

Example:

Examining Attorney:

Q: Ms. O’Leary, when did you become a fire fighter?

A: Well, I had three brothers, and I was the only daughter in the family. The whole time we were growing up on DeKoven Street, I was competing with the guys and doing what they did. They wanted to fight fires, and so I started . . .

Objecting Lawyer:

Objection. Witness is non-responsive.

Administrative Law Judge:

Sustained. Please, just answer the question asked of you.

Responses to a non-responsive objection:

• Interrupt the witness politely and stop the non-responsive answer.
• Ask more specific questions that suggest shorter answers.

D. Vague and Ambiguous

A question should be clear and understandable so that the witness can understand what is being asked and the fact finder can anticipate and understand the answers. Vague and ambiguous questions are improper and disadvantageous. Fed. R. Evid. 611. Questions may be vague regarding time and circumstances of an event, or may be ambiguous in the choice of words used, or may not make sense.

Example:

Examining Attorney:

Q: Socrates, who attended your class?

Objecting Lawyer:

Objection. Vague and ambiguous. The witness has taught different classes in Athens and Thermopolis.

Arbitrator:

Sustained.

There may not be a tactical advantage to objecting to vague and ambiguous questions asked on direct if the fact finder becomes confused with the line of questioning. An objection to a confusing question may assist the direct examiner in making clear something that is being presented in a puzzling manner. The better tactic may be not to object but to allow the fact finder to remain perplexed regarding the other side’s story.

Responses to a vague and ambiguous objection:

• Rephrase the question to make it clearer.
• Ask the witness if the question was understood.
• If the objection is overruled, repeat the question or request it be read back to show how clear the question was and how opposing counsel is interrupting a proper direct examination.

E. Cumulative

Cumulative evidence is repetitious evidence. The decision maker has the discretion to control cumulative and repetitive evidence. Fed. R. Evid. 403 & 611. Evidence is cumulative when a series of witnesses testify to the same thing or when a series of exhibits provide repetitive information. If the evidence is important, additional witnesses or exhibits may corroborate the same facts without being overly cumulative. However, when numerous witnesses testify to the same event or when several nearly identical exhibits are offered, they serve no additional purpose and are improperly cumulative.

Example:

Examining Attorney:

Q: The defense calls Citizen Kane.

Objecting Lawyer:

May I be heard, your Honor?

Judge:

You may. Approach the bench.

Objecting Lawyer:

Your Honor, I believe that counsel, through Citizen Kane, is trying to introduce more evidence of the plaintiff’s alleged bad faith. This evidence is unnecessarily cumulative as this is the fourth witness testifying to the same thing, and is objectionable.

Examining Attorney:

Your Honor, we have a right to introduce supportive and persuasive evidence to prove up our counterclaim based on the plaintiff’s bad faith in bringing this action.

Judge:

I overrule the objection. The defense may introduce more evidence of the plaintiff’s intent to harass the defendant. However, this ought to be the last witness you may call on this point.

Responses to a cumulative objection:

• Explain that this evidence is not repetitive, but adds important details to evidence already admitted.
• Explain that the evidence is not improperly cumulative. Rather, the corroborative evidence from additional sources is needed to buttress relevant facts.
• If the objection is sustained, continue on with the questioning and return to confirming evidence during later testimony.

F. Misstatement of Evidence

Misstatement or mischaracterization of evidence is objectionable because it inaccurately describes evidence. Fed. R. Evid. 403 & 611. This objection may be used to object to responses by witnesses as well as to questions. A misstatement or mischaracterization of evidence may be made inadvertently or intentionally. An opposing lawyer or witness may not remember exactly what was said in previous testimony or the characterization may be a description of a piece of evidence that can be described with more than one term. For example, a pellet gun may arguably be referred to as a lethal weapon. Whether the problem is caused inadvertently or intentionally, an objection should be asserted and the court should be requested to instruct the opposing lawyer or witness to make proper reference to the evidence or testimony.

Example:

Examining Attorney:

Q: Ms. Baudelaire, what kind of lunch did Count Olaf serve?

A: They were all toxic lunch meals, and even the dinner time unsavory coconut cake dessert that was laced with deadly venom from a poisonous pet snake . . .

Objecting Lawyer:

Objection. The witness is mischaracterizing the evidence. I ask that the witness be instructed to properly answer the question.

Administrative Hearing Officer:

Objection sustained. The witness is directed to answer the question about the lunch meal.

Responses to a mischaracterization objection:

• Be more precise and narrow the scope of the question.
• Point out the specific evidence that has already been introduced referring to the question or answer.
• Explain that there is a source of evidence that will be introduced to support this question. Request that the evidence be conditionally accepted subject to the subsequent introduction of supportive evidence.
• Explain that the characterization in the question or answer is a proper admissible opinion.
• Explain that the characterization by the witness is the way this witness ordinarily talks and expresses facts.

G. Assuming Facts Not in Evidence

This objection is used to object to questions that assume facts that have not been introduced in evidence. See Fed. R. Evid. 403 & 611. A direct examiner may revise the question to eliminate the presumed fact, or may assert that the specific fact will be proven later and offer the evidence conditionally. If the latter course is taken, the presumed fact must be proven. If that fact is not subsequently proven, the opposing attorney may request that the evidence be disregarded.

Example:

Examining Attorney:

Q: Ms. Penelope, when did your husband, Mr. Odysseus, begin his search for you?

Objecting Lawyer:

Objection. There has been no evidence introduced about a search.

Arbitrator:

Sustained.

Responses to an assuming facts objection:

• Revise the question to establish the questionable facts.
• If the facts can be described, allow the witness to do so.
• Make an offer of proof that the necessary evidence will be introduced through another witness.

Objections to Cross-

Examination Questions

This section explains common objections to improper questions asked on cross-examination. The direct examiner can use these objections to protect the witness from being asked objectionable questions. And, as available with direct examinations, LLMs can ascertain potential objections that could be interposed during specific cross-examinations. See §§ 1.1(C) & 1.10(E).

A. Repetitious

If a question has been asked and answered, an attorney may object to similar questions as repetitious. See Fed. R. Evid. 403 & 611. This objection prevents the opposing attorney from gaining undue advantage by repeating evidence. The form of the question does not have to be identical in order to raise this objection. If a new question calls for an answer previously given on cross-examination, the question is objectionable as repetitious. This objection is also referred to as “asked and answered.”

Example:

Examining Attorney:

Q: Ms. Earhart, at the time you purchased this Electra Twin Engine, Mr. Loman gave you a printed warranty, didn’t he?

A: Yes.

Q: You understood the terms of that warranty, right?

A: I may have.

Q: You had an opportunity to read that warranty over, didn’t you?

A: Yes.

Q: Mr. Loman specifically explained to you the length of that warranty as it applied to your plane known as “The Flying Laboratory?”

A: He did.

Q: So you understood how long the warranty would run, didn’t you?

A: I did.

Q: And the length of that warranty was for 1,937 days, correct?

A: I believe so.

Q: And so you fully understood that warranty term, isn’t that right?

A: Yes.

Q: There was no question in your mind that you understood the length of time of that warranty, right, Ms. Earhart?

Objecting Lawyer:

Objection, your Honor. Repetitious.

Judge:

The objection is sustained.

Responses to a repetitious objection:

• Explain that this vital point needs to be emphasized on cross.
• Point out the witness is evasive, requiring these questions.
• Move on and emphasize this point during summation.

B. Misleading or Confusing

A question must be reasonable, clear, and specific so that the witness knows what is being asked. See Fed. R. Evid. 403 & 611.

Example:

Examining Attorney:

Q: Mr. Quixote, since you ran away, you don’t know whether Sancho did a good job or not, do you?

Objecting Lawyer:

Objection, your Honor, the words “good job” are vague and ambiguous.

Administrative Law Judge:

The objection is sustained.

Responses to a misleading objection:

• Ask if the witness understands the question.
• Rephrase the question so it’s not misleading or confusing.

C. Multiple or Compound

A multiple or compound question presents two or more questions within a single query. These types of questions are objectionable because the answer will usually be ambiguous. Fed. R. Evid. 403 & 611. An example of a compound question is, “The defendant was dancing and wearing tap shoes?” Answers to multiple or compound questions, which initially seem appropriate, can be confusing on reflection.

Example:

Examining Attorney:

Q: On the day of the alleged threat to Caesar’s life, you talked to Brutus about Caesar’s gladiator training and later visited the defendant at his villa to talk about minting new coins, didn’t you?

Objecting Lawyer:

Objection, your Honor. Counsel is asking Mr. Augustus two distinct questions.

Judge:

Sustained.

Response to a multiple question objection:

• Repeat one of the questions and ask the witness to answer that question and then ask the other question.

D. Mischaracterization of Evidence

This objection is used in an attempt to object to questions on cross-examination that include facts that are not in evidence or statements that improperly misstate or mischaracterize the evidence. See Fed. R. Evid. 403. The improper statement may be an attempt to trick or confuse the witness and may also be an argumentative question. The issues for a cross-examiner are similar to those for a direct examiner who misstates or mischaracterizes the facts (see § 4.6(F)), although a cross-examiner has more latitude to ask questions that fairly test the credibility or memory of a witness.

Example:

Examining Attorney:

Q: Ms. Newton, you saw your husband sitting under a tree contemplating the meaning of physics when a “Flower of Kent” apple fell on his temporal lobe stimulating his attentional imagination network, correct?

Objecting Lawyer:

Objection. There are no facts introduced in this case supporting these inaccurate and unfounded assumptions.

Arbitrator:

Sustained.

Responses to a mischaracterization of evidence objection:

• Introduce the evidence before asking this question. Laying a foundation makes this objection inappropriate.
• Explain that evidence has been introduced that supports the question and refer to such evidence.
• Explain that such evidence will be introduced at a later stage of the case, and request this evidence be conditionally admitted pending subsequent proof.
• Argue that cross-examination can test the memory and credibility of a witness and that the witness can deny the asserted facts if the witness disagrees with the assertion.

E. Argumentative

Any question that is essentially an argument is improper. See Fed. R. Evid. 611(a). The role of the advocate is to question and not to argue. An argumentative question either elicits no new information or harasses the witness. Argumentative questions often assume a sarcastic tenor: “Do you mean to tell me . . . " or “Doesn’t it seem surprising that. . . .” Such assertions should be reserved, if at all, for closing argument.

Example:

Examining Attorney:

Q: Ms. Cruella De Vil, had you been alert and keeping a proper and keen look out, we all know you would never have recklessly run over poor Pongo.

Objecting Lawyer:

I object to counsel arguing his case through this witness.

Administrative Law Judge:

Objection sustained.

Responses to an argumentative objection:

• Re-ask the question and eliminate the objectionable comment.
• Re-ask with a proper tone so the question sounds appropriate.

F. Improper Impeachment

Improper impeachment is an attempt to incorrectly discredit a witness or to refer to a statement someone else said or wrote. Fed. R. Evid. 613. Section 9.7 explains impeachment in detail. Improper impeachment may occur in a variety of ways. A cross-examiner may attempt to impeach the witness on a collateral, unimportant, or irrelevant matter, or may attempt to impeach the witness with a prior statement that is not materially inconsistent, or may try to impeach with inconsistent statements made by someone else and not this witness. Improper impeachment should be resisted.

Example:

Examining Attorney:

Q: Ms. Daedalus, in a prior statement you said that Icarus was wearing wings made of yellow wax, not tuscan sun wax, true?

Objecting Lawyer:

Objection, your Honor. The wax color is the same and not inconsistent, and this impeachment effort is improper.

Administrative Hearing Officer:

Sustained.

Response to an improper impeachment objection:

• Explain how the impeachment is not collateral or is material.
• Ask additional cross-examination questions to establish the relevancy and importance of the impeachment.

G. Beyond the Scope

Questions that go beyond the permissible scope of an examination are objectionable. Fed. R. Evid. 611(b). Cross-examination is limited to the subject matter of the direct examination and matters relating to the credibility of the witness. The cross-examiner may raise new matters if permitted, and the credibility standard usually covers a broad range of questions. Many decision makers view the scope of cross-examination liberally and permit wide-ranging examinations as long as the questions are relevant. If the cross-examiner wishes to go far beyond the scope of the direct, the cross-examiner must usually call the witness as an adverse witness and ask leading questions on direct examination.

Example:

Examining Attorney:

Q: Ms. Ingalls-Wilder, you later lived quite happily in a little house on the prairie, didn’t you?

Objecting Lawyer:

Objection, your Honor. The question goes beyond the scope of the direct which was limited to the Crow Peak mountain cabin.

Arbitrator:

Sustained.

Responses to a beyond the scope objection:

• Point out the testimony from direct examination that relates to this question on cross-examination. The attorney may need to refer to the previous question or answer on direct that touched on the subject. If an objection to the scope of cross is anticipated, listen carefully during the direct for a related topic so it can be shown that this topic or a related topic was asked during direct examination.
• Explain that the questions relate to the credibility of the witness or another witness.
• Explain that the decision maker has substantial discretion to allow questions beyond the scope of the direct.
• Explain that if these questions are not permitted at this stage of the case, the witness will be recalled later and that will only take more time and cause inconvenience to the witness.

Objections Based on

Exclusionary Rules

The following sections explain common objections used to exclude evidence. The rules can be grouped into several categories with inquiries:

• Irrelevant evidence. Does the evidence have sufficient probative value?
• Unfairly prejudicial evidence. Does the probative value outweigh an unfairly prejudicial impact?
• Privileged information. Is there sufficient evidence to support a finding that a privilege exists?
• Lack of personal knowledge and improper opinion. Does a witness have personal knowledge of a fact or a permissible opinion?
• Lack of foundation for documents and other exhibits. Will the evidence support a finding that the exhibit is what it purports to be?
• Hearsay. Are there sufficient preliminary facts to establish that a statement is not hearsay or is a hearsay exception?

Exclusionary rules are enforced in jury trials to prevent the jurors from hearing or seeing inadmissible evidence and from being improperly influenced. These evidence rules may not be strictly enforced in a bench trial and even less so in administrative hearings and arbitrations. The major touchstones for admissible evidence in these forums include relevancy and reliability, as described previously. The exclusionary rules are still useful before these tribunals to evaluate the impact of evidence and to rightfully exclude adverse critical evidence. The advocate can explain in summation how irrelevant or unreliable evidence is based on rationales underlying the applicable exclusionary rule.

The following sections explain in detail the various categories of exclusionary objections. As with other type of evidentiary problems, LLMs can assist with planning, identifying, and interposing objections. See §§ 1.1(C) & 1.10(E).

Objections Based on Irrelevancy

A. Irrelevant Evidence

Evidence must be relevant in order to be admissible. Fed. R. Evid. 401 and 402. Relevant evidence has probative value, which is the tendency to make more or less probable any facts of consequence to the outcome of the case. Irrelevant evidence is obviously inadmissible.

Relevant evidence may be either direct or circumstantial. Direct evidence is that which is proved by witnesses who testify to what they saw, heard, or experienced, or by documentary or physical evidence of the fact itself. Circumstantial evidence is that which can be reasonably inferred from other facts proven in the case. Most relevancy objections involve circumstantial evidence that requires inferences to be drawn from direct evidence.

Example:

Offer of Proof Evidence:

*A convenience store was robbed of cash and lottery tickets. The owner witnesses have testified that the store was robbed at 9:45 a.m. and that the female robber of average height wore a green jogging suit and ran out with a black backpack full of money and lottery tickets. A resident of an apartment building one block from the store is prepared to testify that she saw an average size person run past her building around 10:00 a.m. wearing a neon yellow running suit and carrying a dark duffle bag. A person was apprehended by the police in the neighborhood at 10:30 a.m. the same day wearing a neon green track suit without a backpack or duffle bag and identified as Starlit Bandit. *

Objection:

Irrelevant. There is an insufficient connection between these two observations.

Ruling:

Overruled. The details and close time proximity of the observations is sufficient to support a reasonable inference of fact that the robber was Starlit Bandit.

Relevancy depends upon the evidence offered and the issues to be proven. In offering evidence, counsel must have an explanation for its admissibility. In planning to introduce evidence, the advocate must identify and select the specific issue to be proven by the evidence.

After an objection of irrelevancy is made, the examining attorney may be asked about the relevancy of the evidence if the significance is not apparent from the context. If the attorney can explain a connection between an issue in the case and the evidence offered, the objection will be properly overruled. If the offering attorney anticipates that an objection may be sustained, the attorney may ask to be heard before the ruling and explain the relevancy. If the objection is sustained, the offering attorney should make an offer of proof and describe the relevancy.

A decision maker often defers to the judgment of the lawyer regarding admissibility if the lawyer can articulate a basis for its relevancy. If counsel can explain reasons supporting relevancy, the objection will more likely be overruled. If an attorney hesitates or cannot reasonably explain why evidence is relevant, it’s more probable that the objection will be sustained.

1. Immaterial

Evidence is material if it has some logical relationship to the case. The concept of materiality relates to the concept of what is of “consequence” to a case. What is of consequence depends on the scope of the pleadings, the issues of the case, and the substantive law. Materiality is included in an objection based on relevancy, and is no longer recognized as a distinct objection in most jurisdictions because immaterial evidence is almost always irrelevant. Materiality has been subsumed by Federal Rules of Evidence 401 and 402 and similar state rules.

Example:

Evidence:

Plaintiff Cinderella seeks to prove that the defendant’s improper maintenance of a stairway also contributed to the falls of two other residents of the defendant’s castle. The other accident victims were hurt when they caught their heels in loose carpeting and tripped.

Objection:

Irrelevant.

Ruling:

Overruled.

Admissible if plaintiff shows that the relevant circumstances were substantially identical to her own accident: the accidents occurred on the same stairway, the same carpeting was in loose condition, and the lighting conditions and other circumstances were substantially the same.

2. Conditional Relevancy

The relevance of a specific item of evidence may be conditioned upon the proof of other facts, as described previously. Fed. R. Evid. 104(b). In these situations, the decision maker may conditionally accept and admit the proffered evidence, subject to the proof of the additional facts. If those additional facts are not proven, the opposing attorney can object to the admissibility of the previous evidence and request that it be stricken. The process is sometimes referred to as “connecting up.” Evidence not connected up becomes inadmissible.

Example:

Objecting Lawyer:

Your Honor, you previously allowed into evidence testimony from Zoe Neytiri regarding a telepathic conversation that supposedly took place on January 6. We objected, and counsel for plaintiff said that she would later offer evidence establishing the date of the conversation. Such evidence has never been established, and the previous evidence should be stricken.

Ruling:

The previous objection is sustained and the evidence stricken.

3. Unfairly Prejudicial

Relevant evidence is inadmissible when its unfairly prejudicial effect substantially outweighs its probative value. Fed. R. Evid. 403. The key to a successful assertion of an objection based on prejudicial evidence is that the evidence is unfairly prejudicial. All evidence is prejudicial in the sense that it hurts one party and helps the other party. Only evidence that is unfairly prejudicial may be excluded. As examples, this objection may be made to: evidence that appeals to the passion or prejudice of the jurors, exhibits that unnecessarily display gross and gruesome injuries, and an event or scene portrayed in overly graphic or shocking detail. The judge will discern and weigh the nature of the evidence and balance the need for relevant evidence with its prejudicial impact.

B. Inadmissible Types of Evidence

Specific types of inadmissible evidence include the following categories specifically barred by the Federal Rules of Evidence and similar state evidentiary rules. These classes of evidence are generally inadmissible for a variety of reasons. Some are unfairly prejudicial; others are unreliable; and still others violate public policy.

1. Improper Character Evidence

The general rule is that evidence of a person’s character traits are not admissible to prove that the person acted in conformity with those traits on a particular occasion. Fed. R. Evid. 404 & 405. For example, evidence that a defendant has periodically smoked marijuana in the past should not be allowed to prove that the defendant smoked illegal cannabis on a later occasion.

Section 7.10(D) explains the situations and methods under which character evidence may be admissible in criminal and civil cases. If character evidence is introduced in situations other than those permitted by the rules, an objection should be made.

Example:

Evidence:

Doctor House is accused of medical malpractice for transplanting plaintiff’s brain. Plaintiff’s attorney presents evidence that Doctor House is an arrogant, mean, condescending, and rude physician.

Objection:

Unfairly prejudicial. Improper character evidence.

Ruling:

Sustained.

This evidence of the doctor’s bad character is not admissible to prove the doctor’s negligence. The doctor may be an arrogant and rude physician, but that perspective is unfairly prejudicial because the fact finder may be improperly influenced and find negligence based on the bad character.

2. Improper Habit Evidence

Improper habit evidence is inadmissible. Fed. R. Evid. 406. Section 7.10(E) explains the introduction of proper habit evidence on direct examination. An objection should be made when evidence of improper habits is being introduced. An example of an improper “habit” that is usually excluded involves evidence of intemperance. Evidence of past excessive drinking is ordinarily inadmissible to prove subsequent drunkenness. Similarly, evidence of other assaults is usually inadmissible in an assault case, unless the previous assaults are nearly identical. This type of evidence is usually deemed inadmissible because the fact finder may be unfairly inclined to find the party liable or guilty because of past bad conduct.

Example:

Evidence:

Plaintiff testified that the Defendant, Cameron, backed the car out of Ferris Bueller’s driveway without looking, and ran into Plaintiff’s car. Cameron claimed that he didn’t see Plaintiff’s car speeding by before he backed out. Plaintiff’s witnesses would testify the Defendant occasionally drove them to school and failed to look both ways before backing up.

Objection:

Improper habit evidence.

Ruling:

Sustained.

This testimony is inadmissible evidence of habit. There is insubstantial evidence from these witnesses, who did not have sufficient driving opportunities with the Defendant to establish that the failure to look both ways was a matter of habit.

3. Subsequent Remedial Measures

The term “subsequent remedial measures” refers to actions taken after an event that, if taken before the event, would have made the event less likely to occur. An example is fixing a car’s brakes after an accident caused by faulty brakes. Evidence of subsequent remedial measures is not admissible to prove negligence or fault in a previous event. Fed. R. Evid. 407. Such evidence is considered to be misleading because the repairs inaccurately imply a recognition of liability or may divert the fact finder’s attention from the real cause of the accident.

For example, evidence that a railroad installed a crossing gate and warning lights after an accident should not be admissible to prove the railroad’s negligence because, in hearing the evidence, the fact finder might incorrectly infer that the railroad admitted its fault. If this type of evidence were admissible to prove fault, many repairs would not be made for fear that liability would be imposed on the party making repairs.

The exclusion of subsequent remedial measures does not apply where the issue to be proved involves controverted matters of ownership, control, feasibility of precautionary measures, or impeachment of a witness. These reasons make subsequent remedial measures admissible.

Example:

Evidence:

Plaintiff Rose DeWitt Bukater slipped on ice on the deck of the titanic ship. Defendant knew that this slippery condition was likely to occur but claimed that there was no effective way to make the ship safe. After the accident, Defendant spread deicer on the deck.

Objection:

Unfairly prejudicial evidence.

Ruling:

Sustained.

If offered to show Defendant’s fault, but overruled if introduced to show feasibility of precautionary measures.

4. Offers of Compromise

Evidence of offers to resolve a dispute or to settle a case is inadmissible, because the evidence might be misinterpreted as an admission of liability. Fed. R. Evid. 408. Parties are encouraged to negotiate and settle cases before trial or a hearing, and all statements, discussions, and admissions made during settlement efforts are excluded from evidence. However, evidence of a compromise offer to prove bias of a witness or to rebut a contention of undue delay may be admitted as a rule exception.

Example:

Evidence:

Ms. Ferrari and Mr. Porsche were involved in an automobile accident where Ms. Ferrari’s car was damaged. Each party believed the other was at fault, and an argument ensued. Mr. Porsche didn’t want the hassle of going to court and gave Ms. Ferrari some money to fix her car. A few months later Ms. Ferrari developed some health problems that she claims were caused by the accident. Ms. Ferrari sued Mr. Porsche for personal injury, and attempted to present evidence at trial that the defendant willingly paid for the plaintiff’s damaged car after the accident.

Objection:

Unfairly prejudicial evidence as an offer of compromise.

Ruling:

Sustained.

The fact finder might interpret the defendant’s payment to fix plaintiff’s car as an admission of liability for the accident, and for plaintiff’s later health problems.

5. Payment of Medical Expenses

Evidence of an opposing party’s payment, promises to make payment, or offers to make payment for medical expenses may not be offered to prove liability for an injury. Fed. R. Evid. 409. However, this evidence may be admissible to prove other issues in a case.

6. Plea Bargains

A person accused of a criminal offense may offer to plead guilty to a lesser offense rather than plead not guilty and go to trial. The person may also decide to plead nolo contendere, which means that the person neither admits nor denies guilt, but agrees that if the case went to trial there would be sufficient evidence to support a finding of guilt. Offers to plead guilty to a lesser offense and pleas of nolo contendere are not admissions of guilt, and may not be used against the person in a later action. Fed. R. Evid. 410. Once a guilty plea is accepted, guilt of evidence becomes admissible under limited circumstances in another case. If a plea is entered and later withdrawn, it becomes inadmissible.

7. Liability Insurance

The existence or nonexistence of insurance is not admissible regarding an issue of negligence or wrongful actions. Fed. R. Evid. 411. This is because the fact finder may believe an insured person does not use as much care as an uninsured person or may improperly decide to give insurance company money to a needy plaintiff. Evidence regarding insurance is admissible if offered to impeach or to prove agency, ownership, control, or bias.

8. Religious Beliefs

Evidence of a person’s religious beliefs or opinions is not admissible to show that the person is more or less credible or believable. Fed. R. Evid. 610.

Example:

Prosecuting attorney cross-examining a defense witness:

Q: Are you sure you heard the victim, Sookie Stackhouse, cry out on the night of the incident?

A: Oh, yeah. Real clear.

Q: But you also hear voices when you speak in tongues at church, right?

Objection:

Unfairly prejudicial.

Ruling:

Sustained.

Fact finders may not generally consider religious beliefs of the witness as evidence of credibility.

Objections Based on Privilege

A. Privileged Communications

Evidence, though relevant, may be inadmissible because it is privileged. A privileged communication consists of a communication between persons having a confidential relationship. The public policy behind a privilege is to encourage open, honest communication between certain persons. A valid objection based on privilege will bar the underlying statement, writing, email, or other message from being disclosed.

Common privileges include: attorney/client, doctor/patient, spousal communications, clergy/penitent, trade/business secrets, and news sources. There are many other privileges recognized by state statutes, constitutional provisions, and case law in specific jurisdictions. Every privilege has a number of elements that must be proved, and they often involve important societal relationships, professional work, or governmental affairs. A privilege may not be successfully asserted unless adequate evidence is introduced to establish the essential elements. The following sections illustrate the more common privileges and their possible waiver.

B. Types of Privileges

1. Attorney/Client Privilege

The establishment of an attorney/client privilege requires:

(a) A professional relationship between an attorney and a client who seeks legal advice, involving

(b) A communication made in confidence

(c) Between an attorney (or agent of the attorney such as a paralegal) and client, who is the holder of the privilege.

2. Doctor/Patient Privilege

The establishment of a doctor/patient privilege requires:

(a) A doctor/patient relationship in which the patient seeks medical assistance, involving

(b) A communication regarding medical information, including examinations, treatment, tests, reports, and notes made

(c) Between a doctor (or medical assistant) and a patient, who is the holder of the privilege.

3. Marital Communications Privilege

A limited privilege recognized in most jurisdictions protects confidential communications made between married spouses. Neither spouse can testify, during or after the marriage, about certain communications made between them while married. Both spouses hold the privilege.

The establishment of a marital communication privilege requires:

(a) A marriage relationship, involving

(b) Confidential, private communications

(c) Made during the marriage.

4. Waiver of Privilege

Any privilege may be waived if:

• The holder of the privilege or the attorney with the consent of the holder knowingly and expressly waives the privilege.
• Voluntary disclosure of the privileged information occurs during discovery or hearing or trial testimony.
• No objection is made to eliciting privileged communication.
• A privileged matter is discussed in the presence of a third person.
• An eavesdropper, without using surreptitious means, overhears a privileged communication.
• The holder raises a claim or defense that places the privileged matter in issue.

If a privilege has been waived, the communications are admissible.

Example:

Evidence:

In the hallway outside the courtroom, Defendant Christine Vole discusses strategy with her attorney. A witness whom plaintiff intends to call to corroborate evidence sits three feet from defendant and defendant’s attorney. In direct examination, opposing counsel questions the witness about the substance of what the witness overheard in defendant’s communication with her attorney.

Objection:

This information is protected by the attorney/client privilege.

Ruling:

Overruled.

An attorney may assert the privilege for the holder and seek to exclude the communication. However, the defense voluntarily communicated within earshot of the witness in a public place, and this constitutes waiver in most jurisdictions.

Objections Based on Competency

and Foundation

Lack of Competency

A witness must be competent to testify. Fed. R. Evid. 601. Competency embodies four factors: an understanding of the oath or affirmation, the perception of events, the recollection of those events, and the ability to communicate. Section 7.2(A) describes each of these factors in detail.

Generally, a witness is presumed competent to testify unless challenged by the opponent or by the decision maker (rarely done). Objections to the competency of a witness are usually made before a witness testifies. If a witness appears incompetent while testifying, the opposing attorney may object and “voir dire” the witness to establish that the witness is not competent because the witness does not understand the oath, did not perceive the event, does not remember it, or cannot communicate. Because witnesses are usually minimally competent, opponents rely on cross-examination to impeach the story of the witness.

Example:

Evidence:

Witness saw a collision between a meteor and an asteroid.

Examining Attorney:

Q: Carl Sagan, what speed was the meteor traveling?

Objecting Lawyer:

Objection. Your Honor, this witness is not competent to testify to the speed of this meteor. He did not see it for a sufficient amount of time before the collision as he was running full speed to a telescope.

Ruling:

Sustained.

Most would overrule the objection and allow the witness to testify the meteor was moving “very fast,” for what it is worth.

B. Lack of Personal Knowledge

A witness may not testify to any matter unless evidence is introduced that is sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 602. If the proponent does not establish that the witness has personal knowledge of the matters about which the witness will testify, an objection should be made. Whenever a witness is about to testify, opposing counsel should ask: “How does the witness know this information?” or “What is the source of the evidence the witness is about to offer?” If the attorney knows the witness has personal knowledge and the information is reliable, no objection should be made. If the lawyer believes the witness does not have personal knowledge or that the source is unreliable, an objection should be made. The proper objection is either lack of personal knowledge or lack of foundation.

Example:

Examining Attorney:

Q: What happened in the fencing room?

A: I told D’Artagnan and Aramis that I no longer was going to be a Musketeer and then I left the room, and they continued to talk about. . . .

Objecting Lawyer:

Objection. The witness has no personal knowledge of what D’Artagnan and Aramis said after he left the room.

Arbitrator:

Sustained.

C. Lack of Foundation

Foundation is preliminary information that must be established before other evidence is admissible. Fed. R. Evid. 901. Section 7.2 describes and provides numerous examples of foundations. A lack of foundation objection is used to prevent the introduction of evidence or to compel facts to be established. This objection applies to statements made about events, conversations, and documents. See § 4.11(C). A parallel objection may be lack of personal knowledge. See § 4.11(B).

Example:

Examining Attorney:

Q: Ms. Toad, what happened to your car on the way home?

A: It broke down.

Q: What caused the car to break down?

Objecting Lawyer:

Objection. There’s been no foundation established for this witness to be able to answer that question.

Judge:

The objection is sustained.

If the objection does not keep the evidence out but causes the examining attorney to establish the missing element of foundation, it may be strategically inappropriate to object because the additional foundation may make the evidence appear more reliable, especially if the examining attorney can readily supply the missing fact.

Example:

Examining Attorney:

Q: Before your car broke down, Ms. Toad, what did you first notice?

A: I saw black smoke coming out of the engine compartment.

Q: What did you see next?

A: I heard this explosion and the hood of the engine blew off, and I saw it land about a hundred feet to the side of the car.

Q: Then what happened?

A: I saw a huge ball of fire erupt from the engine compartment.

Q: What happened after you heard this explosion and saw this huge ball of fire erupt from the engine compartment?

A: The car broke down.

Objections Based on

Improper Opinions

There are two types of opinion testimony: evidence furnished by an expert and evidence imparted by a layperson.

A. Improper expert opinions

Expert opinion is admissible to provide information, conclusions, or inferences beyond the abilities of the fact finder. See Fed. R. Evid. 702 to 705. Experts can give opinion testimony after the decision maker determines:

• The subject matter of the opinion is based on scientific, technical, or other specialized knowledge and not on common knowledge.
• The area of expertise is well recognized or accepted by other well-recognized experts.
• The opinion will assist the trier of fact to understand evidence or determine a fact in issue.
• The expert, by way of knowledge, skill, experience, training, or education, possesses sufficient expertise to render an opinion.
• The basis of the opinion is reliable and will aid the fact finder.

Objections should be made if any of these factors have not been met. Chapter 10 explains the intricacies of expert witness examinations.

Example:

Evidence:

Annie Oakley’s testimony establishes she is qualified as a ballistics expert and based on tests conducted on the handgun found in William Cody’s possession, it is her opinion, based upon her education, training, and experience in ballistics analysis, that the bullet that killed the buffalo was fired from Mr. Cody’s gun.

Objection:

Improper expert opinion.

Judge:

Overruled.

Ballistics is a widely accepted area of expertise; the witness is qualified as an expert; and the opinion will help the fact finder.

Improper Lay Opinions

Objections may be interposed if a lay witness has insufficient bases to offer an opinion or conclusion. Lay witnesses may render opinions and conclusions if the statements are based on the perception of the witness and are helpful to a clear understanding or determination of a fact in issue. Fed. R. Evid. 701. Lay witnesses can offer opinions if they have personal knowledge to support their perceptions and if there is a rational basis for the conclusion. As examples: A witness may testify describing the appearance of a person from which the fact finder may infer that person appeared to be thinking, but may not testify to what that person was thinking. And a lay witness may testify that a person appeared to have a broken arm, buy may not testify that the person had a specific type of fracture.

Proper Lay Opinions

There are many opinions and conclusions a lay witness may render. Permissible lay opinions may be given regarding speed, distance, time, appearances, conditions, emotions, age, health, sobriety, value of personal property, and other rational perceptions. Lay witnesses may testify that a person appeared nervous, happy, sad, scared, excited, or drunk. Inadmissible lay opinions are those that exceed the perception of the witness, are not rationally based, or do not assist the fact finder.

Lay witnesses may testify to a conclusion in some situations even though they are unable to explain specific observations that support the conclusion. The most common example involves the formation of an instantaneous opinion regarding matters that are observed, referred to as the collective facts doctrine. For example, an eyewitness to an accident in which a pedestrian was hit by a car can testify to the conclusion that the car could not have swerved in time to avoid hitting the pedestrian. It would be difficult, if not impossible, for the witness to support the opinion with specific facts. This type of conclusion assists the fact finder in determining what happened and why and is admissible in most jurisdiction.

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Example:

Examining Attorney:

Q: What did you see, Ms. Guinness?

A: I saw the defendant holding a can of beer in one hand and staggering as he walked over to me.

Q: What else?

A: His eyes were bloodshot, he smelled like a brewery, and he slurred his words.

Q: Do you have an opinion about his condition?

A: Oh, yes.

Q: What is your opinion?

A: He was drunk.

Q: What else did you conclude?

A: He should never have flown the gyrocoptor, and he should lose his pilot’s license.

Objecting Lawyer:

Objection. Improper opinion.

Administrative Judge:

Sustained.

While the witness may testify that the defendant was drunk when she talked to him, the witness cannot draw the conclusion that the defendant was in the wrong because she did not see the event and the opinion infringes on an ultimate issue of the case.

2. Speculation

A question that asks the witness to guess or engage in conjecture is objectionable. Fed. R. Evid 601 & 701. Speculation by a witness about what could have happened is of little probative value. Prefatory words like “if, should, could” and similar phrases may render a question susceptible to this objection.

Example:

Examining Attorney:

Q: How close were you to Galavant when he was knocked off his horse?

A: About fifteen feet away.

Q: Could Madalena have possibly avoided Galavant if she had been cantering instead of galloping her horse?

Objecting Lawyer:

Objection, the question calls for speculation.

Administrative Hearing Officer:

Sustained.

Objections Regarding

Documentary Evidence

Four evidence rules determine the admissibility of a document:

• Relevancy, explained in Section 4.9;
• Hearsay, explained in Section 4.14;
• Original writing (best evidence), explained in this section; and
• Authentication, explained in this section and demonstrated in Sections 8.4 and 8.6.

A. Inadmissibility of Documents

Whenever a document is introduced, an opposing attorney should review the document for potential objections and determine whether these objections have been overcome by the lawyer offering the document. Parts of a document may also be objectionable, and the attorney should scrutinize the entire document to make sure all the paragraphs, sentences, phrases, and words are admissible. If any one of these evidence rules precludes the introduction of all or part of a document, an objection should be made to exclude the document or its objectionable parts. Section 8.4(H) explains the process of redacting documentary exhibits.

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Example:

Examining Attorney:

Your Honor, Ms. Emily Dickinson offers Exhibit No. 640, the poem, as evidence.

Objecting Lawyer:

I object to part of this Exhibit. I object to the introduction of the handwritten notes in the margins of this document. There has been no foundation made to authenticate the handwriting, and the writing constitutes inadmissible hearsay.

Arbitrator:

Sustained. The notes in the margins are excluded from evidence and are to be redacted. The remainder of Exhibit No. 640 is received in evidence.

B. Lack of Authentication

Writings, including paper and electronic documents, must be authenticated to be admissible, that is, they must be shown to be what they purport to be. Fed. R. Evid. 901 & 902. Authentication is a foundation requirement for documents and electronically stored information. A lack of authentication objection is commonly identical to a lack of foundation. Section 8.6 explains authentication requirements for various documents.

Example:

Evidence:

In a copyright case, Shakespeare introduces a letter that he claims was written and signed by Roger Bacon.

Objection:

The letter is not authentic because there is no testimony that the signature of Mr. Bacon is genuine and he denies writing it.

Ruling:

Sustained.

If evidence of authenticity is introduced, the exhibit is admissible.

C. Original Writings

The modern “original writings” rule permits originals and duplicate originals to be introduced to prove the contents of a writing, unless a question exists regarding the authenticity of the original or if it would be unfair to introduce a duplicate. See Fed. R. Evid. 1001 to 1007. “Writings” include all written or electronic documents, emails, texts, recordings, and photographs, including letters, numbers, words, and other terms. This rule generally prohibits oral testimony to prove the contents of writings of all kinds.

This rule is also known as the “best evidence” rule, which is a misleading term. There is no requirement that the “best” or most persuasive evidence be introduced. The traditional “best evidence” rule required that the original of the document be introduced to prove its contents, and did not permit copies.

Modern evidence law recognizes that there may be a number of “originals” of a document and that mechanical copy machines, electronically stored data, scanners, smart phone cameras, and printers produce accurate and reliable duplicate originals. The modern rule specifically provides that duplicates are admissible to the same extent as an original unless there is a question about the authenticity of the original, or some other problem arises. The rule also provides that if neither the original nor a duplicate exist, if the original and copies have been inadvertently lost or destroyed, or if the documents cannot be obtained by any available process or subpoena, other evidence of the contents may be admissible, including oral testimony.

Example:

Examining Attorney:

Q: Is there a lease for the rental property in Jurassic Park?

A: Yes. There is a printed, signed lease.

Q: Describe the terms of the lease regarding giant frilled lizards.

Objecting Lawyer:

Objection. The lease must be introduced to prove the terms, not oral testimony.

Administrative Judge:

Sustained.

1. Reliable Oral Testimony in Lieu of a Document

Some evidence that is contained in a document may be admissible through oral testimony without the need to introduce the document. There are three specific situations where oral testimony provides reliable evidence without the need for the available document to be admitted.

a. Short Descriptions

A witness may testify to a few or several words inscribed on a sign, label, tag, subject matter line, text, poster, display, and similar documents. Because there may be only a few prominent words on these items, the testimony is reliable. If an item contained a lengthy statement, then the original writing rule would apply. For example, a witness can testify that a sign read “no trespassing,” but cannot testify regarding a trespass sign containing detailed sentences of information.

b. Independent Facts

Facts that exist independently of a document and that are known to a witness may be established without requiring that the document be produced. For example, a witness may testify that a payment was made and not have to produce a credit card receipt or account entry. For another example, a tenant may testify to the amount and due date of the rent paid without having to produce the original lease. In these examples, the facts are independently known without reliance on the document because the witness paid or received the money. On the other hand, a written document is required to establish facts that are not independent of the document, such as detailed terms or provisions.

c. Collateral Matter

If the writing, recording, photo, or image is collaterally (indirectly) related to the issue to be proved, and the need for producing the original is minimal, secondary evidence by way of oral testimony will be permitted. For example, if a witness testifies to a date that appears in a diary or electronic calendar, the original of the diary or calendar need not be introduced unless the actual date is significant in the case.

2. Parol Evidence Rule

The parol evidence rule provides that a written agreement cannot be contradicted or modified by oral or written evidence of a prior or contemporaneous agreement. Exceptions to this rule include: when the contract is ambiguous, when the writing is not intended to be a complete expression of the agreement, or when fraud or mistake was committed in the formation of the contract.

Example:

Evidence:

Phineas Fogg agreed to buy a hot air balloon from Jules Verne for $74,000. Verne said he would supply propane gas for one year without charge. Fogg and Verne signed a contract that stated Fogg purchased the balloon for $74,000 and that included other contract terms, but did not mention anything about the supply of gas. When Fogg later attempted to obtain the propane gas, Verne told him he would have to pay for it. Fogg sued Verne, and Fogg attempts to testify about the free fuel term.

Objection:

The parol evidence rule prohibits testimony contradicting or modifying a writing.

Ruling:

Sustained.

If the agreement regarding the gas was indeed part of this contract, it should have been included in the document, absent deception.

Objections Based on Hearsay

A. Scope of Hearsay

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See Fed. R. Evid. 801. Hearsay occurs when a witness repeats an out-of-court statement. The declarant of the statement can be either the testifying witness or another person. Hearsay is excluded because it involves defects making it unreliable:

• The fact finder has no opportunity: to observe the credibility of the declarant when the statement was made; to gauge the sincerity, perception, or memory of the declarant; or to resolve ambiguities in the declarant’s statement.
• The out-of-court statement may not be restated accurately because the witness may have misheard or misunderstood it.
• When the statement was made the declarant was not under oath or affirmation.
• It may not be possible to cross-examine the declarant.

Most hearsay statements are admissible either because the statements do not meet the legal definition of hearsay or because an exception provides for their admissibility. Most out-of-court statements may be repeated in a trial or hearing because they are sufficiently trustworthy for the fact finder to rely on them. Cross-examination is available to reduce their reliability.

This and following sections provide a method of analyzing out-of-court statements to assess whether they are or are not hearsay and to determine whether exceptions exist to admit the hearsay. These sections define hearsay, explain why many out-of-court statements are not hearsay, and describe the more common exceptions to the rule against hearsay.

B. Hearsay Definition

There are three essential factors to a hearsay statement. Fed. R. Evid. 801(a), (b), & (c). If any one factor is absent, the statement is not hearsay.

The first factor is that the “statement” must be an oral or written assertion or nonverbal conduct intended to be an assertion. Hearsay statements may be oral, written, or asserted conduct. Oral testimony and written documents are hearsay statements, but not all conduct is a statement within the meaning of hearsay. Only assertive conduct constitutes hearsay. Assertive conduct is conduct that is intended by the actor to be an assertion. For example, during an identification line-up, the victim points a finger directly at the defendant. This is assertive nonverbal conduct. The statement implied in that conduct is “that person is the criminal.”

The second factor is that the statement must be an “out-of-court” statement. A hearsay statement is a prior statement made by a declarant outside the courtroom or hearing room that is repeated by the witness during the trial or hearing. Three examples illustrate this factor:

• If the witness, Ichabod Crane, states, “Brom Bones said the horseman is headless,” that statement is an out-of-court statement.
• If witness Ichabod Crane states, “I said the horseman is headless,” that statement is also an out-of-court statement.
• If witness Ichabod Crane states, “The horseman was headless, and I saw it,” that testimony is not hearsay.

The first two examples are “out-of-court” statements because they were made outside of the courtroom or hearing room and were repeated during the case. The third example is not a restatement of a prior statement, but a description of a past event seen by the witness.

The third factor is that the out-of-court statement is offered to “prove the truth” of what the statement says. If the statement is offered for any other purpose, it is not hearsay. One way of determining whether the third factor has been met is to compare “what the statement proves” with “what the proponent is trying to prove.” If there is a match, the statement is hearsay. If there is not a match, the statement is not hearsay. For example, a witness testifies that She Who Rides said “it was snowing on Crazy Horse Memorial on May 1.” If the statement is offered to prove that it was actually snowing at Crazy Horse Memorial on May 1, the statement is hearsay. If the statement is offered to prove that the witness could identify the voice of She Who Rides on May 1, the statement is not hearsay.

C. Out-of-Court Statements

Out-of-court statements (Fed. R. Evid. 801(c)) that are not hearsay and that are admissible include:

• Statements not offered for the truth of the matter asserted.
• Nonassertive conduct.
• Non-propositions.
• Verbal acts.
• “Statements” by a declarant that is not a person.

1. Statements Not Offered for the Truth of the Matter Asserted

An out-of-court statement offered to prove the truth of the matter asserted is inadmissible hearsay. A statement offered to prove a fact other than the truth of the matter asserted may be admissible, as previously explained. See Fed. R. Evid. 801(a). For example, a witness overheard the groom say “I do. I do.” If offered for the truth of the matter asserted—that the groom said “I do. I do."—it is inadmissible hearsay.

If offered for some other purpose, it is not hearsay. For example, if offered to prove the groom could talk, it is admissible. When offered for another purpose, the contents of the statement need not be believed for the evidence to be reliable. The mere fact that the statement was made independent of its truth is what is reliable.

A statement may appear to be offered for its truth but is primarily offered for another purpose. Common examples include statements offered to prove that an individual had notice or knowledge of something. For example, if a trained auto technician tells a car owner that the electric vehicle batteries need to be replaced, that statement may be introduced to defend a breach of warranty claim brought by the owner. The statement is introduced primarily to show that the owner had notice that the batteries were in need of replacement and not for the truth of the matter asserted.

2. Nonassertive Conduct

Nonassertive conduct—conduct not intended by the actor to stand for the matter to be proved—is not hearsay. For example, an issue at trial is whether it was cold and windy at an intersection, and Sherlock Holmes testifies that, “I observed from my window people standing at the intersection all facing in one direction, wearing heavy coats, with their collars upturned, and their hands in their pockets.” The nonverbal conduct by the pedestrians is nonassertive conduct because they did not intend their acts to stand for the proposition sought to be proved—that it was cold and windy. Nonassertive conduct is admissible because it is reliable.

3. Non-Propositions

Statements are hearsay only if they contain a “proposition,” that is, a statement that is offered for the truth of its contents. A common non-proposition statement is a question. Questions are usually not hearsay because they often do not contain any proposition. For example, a statement “I asked, ‘What did you say?’” is usually not hearsay, but the statement “I asked, ‘Elaine, who was with you at the toy store on Michigan Avenue?’ " is hearsay because it contains a proposition that Elaine is at the Michigan Avenue toy store.

4. Verbal Acts

Statements known as “verbal acts” or “operative words” are not considered hearsay because they are offered for their legal or logical significance and are reliable. The making of the statements creates legal duties or obligations irrespective of the matter asserted. The most common examples are statements that constitute the words of an offer or acceptance creating a contract, or defamatory words spoken to establish slander. For example, in a real estate contract case, the witness can testify: “I heard Lady Grantham say: ‘I will sell you Blackacre if you sell me Downton Abbey.’ " Further, in a defamation case, a witness can testify: “Chambers said Hiss was a communist.”

A verbal act may also logically permit a statement to prove the declarant spoke. For example, in an injury case, if the defendant claims the snowmobile accident rendered the plaintiff unconscious, the plaintiff could introduce a statement from a witness bystander who heard the plaintiff crying out after the accident. Whether the plaintiff was crying out “That hurts” or “Call for help,” the statement proves plaintiff was conscious.

5. Declarant Not a Person

A statement is hearsay only if made by a person. See Fed. R. Evid. 801(b). A “statement” not made or produced by a person is not hearsay. A result produced by an inanimate object such as a machine or the conduct of an animal is not hearsay. As examples, the following are not hearsay statements: the number produced by a radar device that displays the speed of an automobile; the pointing to a package by a dog that was trained to smell narcotics; a witness who testifies that her watch read “two-thirty.” These situations may raise foundation issues regarding their admissibility.

D. Non-Hearsay Statements

Some out-of-court statements that are offered for the truth of the matter asserted are defined by both federal and state rules of evidence as non-hearsay. Fed. R. Evid. 801(d). These include:

• Party admissions.
• Prior under-oath statements.
• Prior identifications.

1. Party Admissions

Any statement made by an opposing party or the party’s agent, employee, or representative is not hearsay and is admissible when offered against that party. Fed. R. Evid. 801(d)(2). An admission is defined as a statement made or an act done by a party to a lawsuit. A working definition of party admissions is: anything an opposing party ever said or did or wrote that has anything to do with the claims or defenses will be admissible. A plaintiff can testify to what a defendant said, and a defendant can testify to what the plaintiff said. A witness can testify to what any party said if offered by the opposing party against the declarant party.

Statements by an opposing party are admissible because the party should assume responsibility for statements made and because the party has a full opportunity to explain why the statement was made. Admissions extend to statements made by agents, authorized persons, co-conspirators, and to adopted or approved statements made by other representatives of the party. Statements made by employees of a party are admissions if made within the scope of employment. For example, Thomas, an engineer of defendant’s train, tells an investigator, “The Tank engine broke down at the station.” The investigator can be called by the plaintiff to repeat Thomas’ statement.

Some state jurisdictions treat party admissions as an exception to the hearsay rule, rather than as non-hearsay statements. This treatment yields the same results as the federal rule.

2. Prior Under-Oath Statements

Prior inconsistent statements made by witnesses under oath at a trial, hearing, deposition, or other proceeding are admissible as substantive evidence of the statements made. Fed. R. Evid. 801(d)(1). Prior consistent statements are admissible to rebut an indirect or express charge against the witness of recent fabrication, improper influence, or motive. The declarant must testify and be subject to cross-examination. The federal rules and similar state rules admit prior inconsistent statements in evidence as substantive proof. Some states only permit prior statements to be introduced for impeachment purposes and not as substantive proof.

For example, during a deposition, the witness Paul Revere states “There was one lamp in the belfry.” After the deposition, Paul Revere makes changes in his deposition testimony stating, “There were two lanterns in the belfry.” During direct examination at trial, Paul Revere says, “There were two lanterns in the belfry.” On cross-examination, Paul Revere can be asked: “Before this trial, you stated that there was one lamp in the belfry.” This statement is offered to both prove the truth of the matter asserted— there was only one lamp—and to impeach the witness.

During redirect examination, Paul Revere can testify that he stated after the deposition that there were two lanterns. This statement is offered to corroborate the direct testimony and to rebut the impeachment by the prior inconsistent statement. In states that do not follow the federal rules, the prior statements are only admissible to impeach and to rebut impeachment and not to prove there was one lamp.

3. Prior Identification

Prior identification of a person made by a witness after observing the person is admissible if the declarant testifies at a trial or hearing and is subject to cross-examination. Fed. R. Evid. 801(d)(1)(C). This rule allows a witness to testify to a prior identification statement made during or shortly after viewing the person or after identifying a photo of the person.

For example, a witness, Cole Porter, who saw an assailant, tells the police that the assailant was “Five foot two with eyes of blue.” At trial, Mr. Porter can say: “I told the police that the person who attacked me was five foot two with eyes of blue.” Also at that trial, the officer can state: “Mr. Porter told me that the suspect was five foot two with eyes of blue.”

E. Hearsay Myths

A number of hearsay myths exist that arise from a misunderstanding of the hearsay rules. An explanation of these myths may clear up some hearsay misperceptions.

• Myth: All out-of-court statements are inadmissible hearsay. Most out-of-court statements are admissible because they are deemed reliable.
• Myth: A witness in a case can testify to whatever the witness has said in the past. A witness who repeats what that witness has said previously is testifying to an out-of-court statement that may or may not be admissible under the hearsay rules. The declarant’s mere presence does not automatically permit the witness to repeat what was said in the past.
• Myth: If a witness can be cross-examined, all prior statements of that witness are admissible. Merely because a witness has testified or is available to be cross-examined does not make all prior statements by that witness admissible. The hearsay rules determine whether out-of-court statements by that declarant are admissible.
• Myth: If the proper foundation is laid to authenticate a relevant document, the document is admissible. Authentic and relevant documents are admissible only if they contain admissible out-of-court statements. The contents of the document must comply with the hearsay rules to be admissible.
• Myth: Affidavit statements made under oath are admissible. An affidavit is a hearsay statement, and must satisfy a hearsay exception, such as past recollection recorded, to be admissible.
• Myth: Affidavits are admissible if the witness is unavailable. A written affidavit made by a person who is unavailable to testify is not a substitute for the live testimony of that person and constitutes inadmissible hearsay. Deposition and hearing testimony may be admissible.
• Myth: Res gestae makes much of hearsay admissible. The phrase “res gestae” (which means “the things done”) has been replaced by modern rules of evidence. The phrase means different things to different advocates, and is only recognized in a few jurisdictions.
• Myth: Judges flip a coin when ruling on hearsay objections. Most judges base their ruling on the applicable hearsay rules. Some judges are inclined to overrule hearsay objections because of the unlikelihood that an appellate court would reverse their evidentiary ruling and grant a new trial. Some judges misunderstand or misapply the rules of hearsay and improperly overrule hearsay objections. Hearsay objections should, however, be made in an attempt to exclude unreliable evidence and to make a record for appeal.
• Myth: *Hearsay is commonly admissible in arbitrations and administrative hearings. *While evidentiary exclusion rules may be less strictly enforced in administrative and arbitration hearings, they serve a vital purpose. They may exclude inadmissible hearsay, and they may limit unreliable evidence from being admitted. Proper hearsay objections may be made in these cases.
• Myth: After a hearsay statement has been admitted, little can be done about its impact. Even if questionable hearsay is allowed, much can be done to reduce its effect. Cross-examination questions can demonstrate its unreliability, and the evidentiary defects can be explained during summation.
• Myth: No one understands hearsay, so who cares? Ninety-one percent of hearsay situations and rules are relatively easy to understand and apply. It is the remaining nine percent that require more analysis.
• Myth: Hearsay is fun to learn and not at all frustrating. The most aggravating aspect of hearsay is that different decision makers and lawyers have dissimilar understandings of the hearsay rules. Hearsay can become less frustrating if counsel flexibly adapts to the hearsay views of the judge, arbitrator, or ALJ and offers evidence consistent with those views.
• Myth: There is always a hearsay exception that makes the hearsay statement admissible. A hearsay statement must meet the requirements of an exception to be admissible.

There are a reasonable—but nonetheless limited—number of hearsay exceptions.

Hearsay Exceptions

Many hearsay statements are admissible because one or more exceptions to the hearsay rule make them admissible. Fed. R. Evid. 803 and 804. Federal and state jurisdictions have developed numerous exceptions. The federal rules of evidence have codified twenty-nine separate exceptions, and some states recognize more.

There are a number of rationales as to why these exceptions have been developed. A common rationale is that the hearsay exceptions recognize that many hearsay statements are reliable and trustworthy. If the traditional defects of unreliability and untrustworthiness do not exist, the statement ought to be admissible.

A second rationale supports those hearsay statements where the declarant can be cross-examined. If there is an opportunity to cross-examine the person who made the hearsay statement, it may be appropriate to allow that statement to be admitted.

A third rationale is there is no efficient or economical way of proving some facts except through a hearsay statement. Several exceptions to the rule against hearsay have been created in part to respond to the pragmatic needs of introducing evidence. If there are no other practical means of proving something critical to the case, hearsay may be admissible.

The following sections explain the most commonly recognized hearsay exceptions. Most jurisdictions, including the federal system, divide hearsay exceptions into two general groups that depend upon the availability of the declarant to testify at trial or a hearing.

Hearsay statements that are exceptions to the hearsay rule regardless of whether the declarant is available to testify at the trial or hearing generally include:

• Sense impressions.
• “State of mind” assertions.
• Records.
• Reputation evidence.

Hearsay statements that are exceptions to the hearsay rule only when the declarant is unavailable to testify generally include:

• Former testimony.
• Statements against interest.
• Statements of personal or family history.
• Dying declarations.

In addition to these exceptions, some hearsay statements will be admissible if certain specific requirements of reliability are met. The federal rules and many state jurisdictions designate this exception as the “residual” exception. See § 4.17(B).

A. Common Hearsay Exceptions

1. Sense Impressions

This exception includes two types of statements: present sense impressions and excited utterances.

a. Present Sense Impressions

Statements describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, are admissible as present sense impressions. Fed. R. Evid. 803(1). This is a broad exception and covers many statements made by persons involved in or who observe an event. This exception has two specific requirements:

• The statement describes or explains an event or condition, and
• The statement is made immediately or shortly after the declarant perceives the event or condition.

These relatively spontaneous statements are deemed reliable because of the lack of time for reflective thought that can result in a changed perception of the event, and because the witness is likely to have a fresh memory of the event at the time the statement was made.

Example:

Bo Jangles is injured falling on a dance floor. Mr. Jangles’ attorney calls Eleanor Powell, a witness, to testify about Bo’s accident.

Examining Attorney:

Q: Where were you standing?

A: I was standing next to Ms. Caruthers, and both of us were standing near Bo when he fell.

Q: What did Ms. Caruthers say when Mr. Jangles fell?

Objecting Lawyer:

Objection. Hearsay.

Judge:

Overruled.

A: Ms. Caruthers said to me “This dance floor is very slippery; I almost fell myself a moment ago.”

Q: What did you do next?

A: I walked over, slowly, to help Bo.

Q: What did Mr. Jangles say?

Objecting Lawyer:

Objection. Hearsay.

Judge:

Overruled.

A: He said, “This floor has some slippery stuff on it.”

Both objections are overruled because both declarants, Ms. Caruthers and Mr. Jangles, made statements about a condition immediately after perceiving the event. The statement by Mr. Jangles is not a party admission because it is not being offered against him, but rather is being offered on his behalf.

b. Excited Utterances

Statements made by the declarant while under stress or excitement caused by a startling situation, and which relate to that situation, are admissible as excited utterances. Fed. R. Evid. 803(2). This exception only applies if:

• The statement is made by the declarant while under stress,
• The declarant has personal knowledge of the event by participating in or observing the event,
• The statement is prompted by the startling event, and
• The statement relates to the event.

The rationale for this exception is that spontaneous statements made under stress or during a startling event are deemed reliable because a person does not have time to fabricate such statements.

Example:

In a personal injury case, Jill witnesses a startling event and testifies that she said, “Oh no, the handle of the pail cracked and Jack fell down and broke his crown!” The opposing lawyer, representing the landowner, anticipating Jill’s response, would object to the statement as hearsay. The objection would be overruled because the statement is an excited utterance, and is also a present sense impression.

Many statements are both excited utterances and present sense impressions. An excited utterance statement differs from a present sense impression in two aspects:

• While an excited utterance usually occurs during or immediately after an event, it need not occur at those times. As long as the declarant is still upset by the event when the statement is made, it is an excited utterance. The present sense impression must be made at the time of the event or immediately thereafter.
• The excited utterance need only “relate” to the startling event, while a present sense impression must “describe or explain” an event or condition.

2. State of Mind or Body Exceptions

There are two related exceptions that involve statements regarding the declarant’s state of mind or body: (1) existing mental, emotional, or physical conditions, and (2) medical treatment statements.

a. Existing Mental, Emotional, Physical Condition

Statements by a declarant involving the declarant’s existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, feeling, pain, and bodily harm) are admissible. Fed. R. Evid. 803(3). These statements are deemed reliable because of their spontaneous nature. They are made at the time the declarant experiences the condition.

Example:

In a products liability case, a witness called by the plaintiff testifies that he heard the plaintiff, Knievel, state right after the jumping accident: “My head is throbbing. I feel depressed. I hate the guy who sold me this motorcycle. I am going to go back to the cycle store and complain.” All these statements are admissible as statements of existing physical, emotional, and mental conditions.

This exception does not include statements of past conditions. For example, if Knievel also said, “My back hurts,” this statement is admissible because it refers to a present, existing condition. However, if Knievel said, “Last week, my back hurt a lot,” the statement is inadmissible hearsay because it refers to a past condition, unless another exception applies.

b. Medical Treatment Statements

Statements made by a person who describes medical history, past or present pains, or symptoms to a medical professional for purposes of medical diagnosis or treatment are admissible. Fed. R. Evid. 803(4). The law deems these statements reliable because the declarant who seeks medical treatment has little or no incentive to lie (despite what doctors might contend).

Example:

In an insurance fraud case, the plaintiff’s treating physician is called to testify on behalf of the plaintiff.

Examining Attorney:

Q: When did you examine Whiplash Willie?

A: About two weeks after the accident.

Q: What did Mr. Willie tell you about his injuries at that time?

Objecting Lawyer:

Objection. Hearsay.

Judge:

Overruled.

A: He said that right after the accident his neck hurt a lot and that up until the day before he saw me he could not turn his head to the right or left.

Q: What else did he say about his injury?

Objecting Lawyer:

Objection. Hearsay.

Judge:

Overruled.

A: He said he had a lot of pain in his lower back when he tried to bend over or sit down, and blamed his bad fortune.

Q: What did he say about the cause of the injuries?

Objecting Lawyer:

Objection. Hearsay.

Judge:

Sustained.

The first objection is properly overruled because the testimony consists of a medical diagnosis. The second objection is also properly overruled because the cause of the injury is a relevant part of the information the doctor needs to properly diagnose and treat the injury. The third objection is properly sustained because any further statement, such as “It was defendant’s reckless conduct that caused my neck injury,” is not a part of the patient’s medical history.

B. Declarant Unavailable Exceptions

Some hearsay statements are only admissible if the declarant is unavailable to testify at the trial or hearing. Fed. R. Evid. 804(a).

The “unavailability” of a witness includes situations where the declarant:

• Is absent from the hearing or trial and the proponent of the statement is unable to secure attendance by a subpoena or other process.
• Is unable to be present because of an existing physical or mental illness or death.
• Testifies to a lack of memory of the subject matter of the statement.
• Is exempted from testifying by a ruling on the ground of privilege.
• Persists in refusing to testify despite a court order.

As stated previously, hearsay statements that are admissible if the declarant is unavailable include:

• Former testimony.
• Statements against interest.
• Statements of personal or family history.
• Dying declarations.

1. Former Testimony

In a civil trial, the testimony given by a witness at a deposition or another hearing may be admitted if the party against whom the testimony is offered had an opportunity to previously examine the witness. Fed. R. Evid. 804(b)(1). An available use of former testimony in a civil trial involves the introduction of deposition testimony because the lay or expert witness is unavailable. Witness testimony needs to be taken in person during the trial (Fed. R. Civ. P. 43), unless an unavailability exception (Fed. R .Civ. P. 32) allows previous testimony. In criminal cases, a hearsay exception applies less frequently because of the defendant’s constitutional right to cross-examine witnesses at trial. Section 7.10(A) explains the introduction of prior testimony.

2. Statements Against Interest

A statement made by a person contrary to that person’s interests is admissible. Fed. R. Evid. 804(b)(3). Contrary interests include statements adversely affecting a person’s pecuniary or proprietary interests or which tend to subject the person to civil or criminal liability. The rationale for this rule is that reasonable individuals do not make statements against their own interests unless those statements are accurate. This exception need only be used where the declarant is not a party. If a party makes such a statement, the statement is admissible as a party admission. See § 4.14(D)(1).

Example:

In a civil case, the user of an addictive product has sued the manufacturer of the product. An independent contractor who consulted with the manufacturer made a statement to an agent of the Food and Drug Administration. The plaintiff calls the FDA agent to testify to the statements made by the consultant.

Examining Attorney:

Q: What did Ms. Hon Lik tell you during your investigation?

Objecting Lawyer:

Objection. Hearsay.

Judge:

Overruled.

A: Hon Lik told me that she and others she supervised were directed to routinely add terpenes to the vaping substances.

3. Statements of Personal or Family History

Statements regarding the personal or family history of the declarant are admissible. Fed. R. Evid. 804(b)(4). These statements are generally allowed as long as the declarant was related to a person or intimately involved in a family and likely to have accurate and reliable information even though the declarant had no means of personally knowing the matter.

Example:

In a probate case, a daughter is called to testify to what her father had told her about his sibling.

Examining Attorney:

Q: What did your father, Gluskap, tell you about his family?

Objecting Lawyer:

Objection. Hearsay.

Judge:

Overruled.

A: He said he had one brother whose name was Malsumis.

4. Dying Declaration

A statement concerning the cause or circumstance of the declarant’s impending death that is made by the declarant who believes death is imminent is admissible. Fed. R. Evid. 804(b)(2). The rationale is that the declarant, who faces death and a possible afterlife, is telling the truth.

Example:

In a murder case, the victim’s husband is called to testify by the prosecution.

Examining Attorney:

Q: After your wife was shot, what did you do?

A: I ran over and knelt next to her.

Q: What did she say?

Objecting Lawyer:

Objection. Hearsay.

Judge:

Overruled.

A: She said, “Darling, I’m dying. Jeeves did it.”

Admissible Documentary Records

Several hearsay exceptions permit the admissibility of specific categories of records. These records are deemed reliable because the information they contain is usually entered and maintained in an accurate, trustworthy manner including:

• Business records.
• Public records.
• Specific records.
• Absent records.
• Past recollection recorded.
• Learned treatises.

A. Business and Public Records

1. Business Records

Records kept in the ordinary, regular course of a business or other organization are admissible. Fed. R. Evid. 803(6). Records include memoranda, reports, emails, data compilation, documents, or any other type of written or electronically stored information. Recorded information includes facts, opinions, and other information. The term “business” includes any business, institution, association, profession, occupation, and organization, including profit and nonprofit. The records are admissible hearsay statements if:

• The entries are made at or near the time of the event or act,
• A person with knowledge records the information or transmits the information to someone who records it,
• The records are kept in the course of a regularly conducted business activity or duty,
• The recording of the specific information is a regular practice of that business,
• The custodian or the qualified witness testifies to these facts, and
• The records are reliable and trustworthy.

Example:

In a commercial arbitration case, Ms. Zloty testifies that she is the manager of a bank currency exchange office, that it is the business of the bank to make and maintain records of exchanges, that Exhibit No. 3 contains documents made contemporaneously with the information recorded on the documents, and that the documents were made in the regular course of the business of the bank. Exhibit No. 3 is admissible.

The witness must testify to the specific requirements of the business exception rule, which commonly requires the examining attorney to ask leading questions to establish these factors. In most civil cases and some criminal cases business records are introduced through a stipulation or in response to a request for an admission. There often is no need to take the time to subpoena a witness to lay the foundation for the hearsay exception, unless the records are essential or controversial. Many of these records will also be self-authenticating under the rules of evidence and may be introduced through a witness who can testify to their relevance.

2. Public Records

Public records are generally reliable because government officials record the information pursuant to a public duty or the law and ought to have no interest in recording information that is inaccurate or that favors one party or the other. Fed. R. Evid. 803(8). Several types of public records are admissible:

• Government activity summarization. Records that describe or explain the activities of an office or agency, such as published reports by the government summarizing what the office or agency does. An example is a document published by a state department of transportation that explains how it conducts tram driver licensing exams.
• Governmental duty-imposed records. Records of matters observed and recorded pursuant to a duty imposed by law. Documents maintained by government officers concerning their official activities include such records. A specific example is a public housing record listing the name of a tenant and an address.
• Factual findings resulting from investigations made pursuant to authority granted by law, such as reports prepared by government investigators. Only those parts of an investigation report that are factual findings, factual conclusions, and historical facts will be admissible. Conclusions or opinions are not admissible. For example, a fire investigative report that includes a description of the incident is admissible, but a portion of the report that concludes the Triangle Shirtwaist Factory fire was caused by arson because the defendants were in desperate financial situations is likely inadmissible. In some cases, determining what is an admissible “factual finding” and what is an inadmissible “conclusion” is difficult. Courts have held that “factual conclusions” are admissible under the public records exception. The resolution in each case depends on the precise words used in the report and what is sought to be proven.
• Land records and property documents maintained in a public office, including deeds, certificates, entries in ledgers, and computer data relating to property interests. These commercial and residential documents are deemed reliable.

Public reports are generally admissible in civil cases, and some reports are less likely admitted in criminal cases. This exception commonly excludes reports containing observations of law enforcement personnel from being admitted in criminal cases. A witness with personal knowledge of the contents or who can establish reliable foundation may testify.

B. Other Reliable Records

The rules of evidence in most jurisdictions render admissible the following specific types of reliable documents:

• Market reports and commercial data. Hearsay statements are contained in market reports, financial summaries, commercial documents, and business transaction data. These statements include facts, opinions, and evaluative or interpretive information. Examples are market quotations, stock prices, financial information, business directories, and other compilations. The rationale for their admissibility is that since the financial and business world relies upon them, so should the law. Fed. R. Evid. 803(17).
• Records of public vital statistics, including birth, death, and marriage information. Fed. R. Evid. 803(9). Presumably, these entries were and are accurate, which reliability rationale also applies to the following categories.
• Records of religious organizations, including birth, divorce, death, and other personal or family records kept in the ordinary course of an organization’s activities. Fed. R. Evid. 803(11).
• Statements of fact contained in legitimate and authentic marriage, baptismal, and other certificates. Fed. R. Evid. 803(12).
• Family records, including personal or family history or facts listed in sources such as holy books and inscriptions. Fed. R. Evid. 803(13).
• Ancient documents and statements contained in authentic documents in existence for 20 years or more. Fed. R. Evid. 803(16).
• Judgments of previous convictions and judgments involving personal, family or property data. Fed. R. Evid. (22) & (23).

Many records are admissible under more than one hearsay exception. A record may qualify as a business record, public record, and a specific record. Some records may appear to be admissible under a rule but have been held to be inadmissible by the courts. For example, police reports are not admissible in criminal cases, even though such reports may technically qualify as business records or public records, because the defendant has a constitutional right to cross-examine witnesses, and a record cannot be cross-examined. The witness who created the record or who has personal or professional knowledge of its contents may testify and may authenticate the foundation for the record or past recollection recorded. Case decisions or statutes may expand or narrow the evidence rules governing the introduction of records.

C. Absence of Records

The lack of an entry in a business or public record is admissible to prove an event did not occur. Fed. R. Evid. 803(7) & (10). Before the lack of a record or entry is admissible, the advocate must establish that the information was the type of information that would have been recorded and that a search has been made of the records. Most jurisdictions allow two ways to prove the absent record search. A witness with personal knowledge may testify to the diligent search that was undertaken, or the proponent may offer a self-authenticating certificate that describes the unsuccessful search.

D. Additional Types of Records

1. Past Recollection Recorded

Records and documents concerning a matter that a witness no longer remembers, but that the witness once knew and accurately recorded when the matter was fresh, will be admissible evidence. Fed. R. Evid. 803(5). Written or electronic records of prior events are admissible if:

• The testifying witness does not presently fully or accurately recall the event,
• The witness has personal knowledge of the record,
• The witness made the record or adopted it as correct at a time when the memory of the witness was fresh, usually close in time to the occurrence of the event, and
• The witness testifies that the report is accurate or that the record would not have been signed or adopted if it were inaccurate.

Section 8.6(M) explains past recollection recorded evidence.

Example:

In an antitrust case involving computer records, the witness maintained a database of Bell Labs email conversations made three years before the trial describing inventions and discoveries. At trial, the witness is unlikely to remember the details of three-year-old conversations. The relevant database may be admitted as past recollection recorded by having the witness establish the existence of the foundation factors for past recollection recorded.

2. Learned Treatises

A parallel type of “record” that is admissible is a learned treatise. Fed. R. Evid. 803(18). A learned treatise is a book, periodical, article, website, blog, pamphlet, or magazine established as reliable authority on a matter, ordinarily the subject of expert opinion, which is relied upon by an expert in direct examination or called to the attention of an expert witness during cross-examination. Sections 10.5(G) and 10.7(B)(14) describe the introduction and use of learned treatises.

Additional Hearsay Exceptions

A. Reputation Evidence

Reputation evidence is a collection of hearsay statements in which specific hearsay exceptions render certain types of reputation evidence admissible. Reputation evidence concerning personal or family history, such as marriages, births, deaths or other events of family significance are admissible. Fed. R. Evid. 803(19). Reputation evidence regarding general history or land boundaries or customs is also admissible. Fed. R. Evid. 803(20). Reputation evidence of a person’s character among associates or in the community is likewise admissible as a hearsay exception. Fed. R. Evid. 803(21). Section 7.10(D) explains when reputation evidence is relevant.

B. Residual Hearsay Exception

Hearsay statements that are not covered by a specific hearsay exception may be admissible if:

• The statement is offered as evidence of a material fact,
• No other evidence exists which is more probative,
• Its admission will serve the interests of justice, and
• The offering party provides opposing counsel with prior notice of the introduction of such a statement.

This “residual” or “catch-all” exception to the hearsay rule may render other reliable, trustworthy hearsay admissible. Fed. R. Evid. 807. This exception is useful in limited situations where no other rule or exception permits hearsay to be admissible. This exception is not intended to and has not been interpreted or applied to make inadmissible hearsay admissible. The exception is reserved for unusual circumstances in which a reliable and trustworthy hearsay statement should be admissible in the interests of justice because no other exception covers the situation. For example, hearsay statements made by consumers who report their experiences with a product in a reliable consumer survey may be admissible under this exception.

C. Multiple Hearsay Analysis

A statement may contain more than one hearsay statement. Fed. R. Evid. 805. This multiple form of hearsay is called “hearsay within hearsay.” Each statement must be separately analyzed to determine whether each segment falls within an exception or is defined as non-hearsay.

Example:

Curley sues Moe for civil assault. At trial, Curly testifies that “Moe said to Curly, ‘I meant to poke you in the eyes because Larry said he was in a lot of pain because you had just slapped him.’ " The attorney for Moe objects to this multiple hearsay. There are two statements within this testimony: the statement by Moe to Curley and the statement by Larry to Moe. The first statement—that of Moe to Curley—is a party admission and is admissible. See § 4.14(D)(1). The second statement—that of Larry to Moe—is admissible as a hearsay exception, either as a present sense impression or as a statement of an existing physical condition. See § 4.15(A). The entire testimony is admissible.

A common situation of multiple hearsay occurs with documents. Documents commonly contain hearsay information and may contain admissible statements and inadmissible hearsay. Each document segment must be analyzed to determine which sentences, phrases, and words are admissible and which are not. See § 8.6.

Example:

A plaintiff lays a foundation through a medical record custodian that a hospital record falls within a business record exception to the hearsay rule. See § 4.16(A).

The witness is a medical record custodian, Patch Adams. The exhibit is the medical record of the plaintiff Worf offered by the plaintiff. The witness testifies that he is the Director of Emergency Services, that it is the business of the hospital to make such medical records, that this exhibit was made contemporaneously with the events recorded, and that the record was made in the regular course of the hospital’s business. The record falls within the business record exception to the hearsay rule. Parts of the record may or may not be admissible depending upon the applicable hearsay exceptions. The record contains the following statements:

• A statement by Dr. Beverly Crusher: “Administered alien steroids to patient.” Admissible. Business record exception.
• A statement by Dr. Kathleen Pulaski: “Set patient’s broken antenna in a cast.” Admissible. Business record exception.
• A statement by the plaintiff Worf: “My third eye hurts.” Admissible. Statement by person made for diagnosis.
• A statement by the defendant Picard: “I was warping around 3000 light years when I hit the rear end of his tractor beam.” Admissible. Party admission when offered against that party.
• A statement by a bystander in the Twilight Zone describing the plaintiff: “Wow, the head was all covered with green blood right after the accident.” Admissible as a present sense impression.
• A statement by a Romulan who arrived after the accident: “Someone said: ‘Picard looked euphoric well before it all happened.’ “ Inadmissible. No exception applies.

Criminal Constitutional Limitations

Evidence that may be reliable under the rules of evidence may be excluded in a criminal case because it was not obtained by the government in a fair way. The Bill of Rights and the Fourteenth Amendment establish constitutional rights, and courts developed criminal constitutional exclusionary rules to exclude evidence obtained in a way that violated a defendant’s constitutional rights. For example, if evidence or statements were obtained from a defendant through an unconstitutional search or improper interrogation of the defendant by the police, that evidence is inadmissible even though it would otherwise be admissible under the general rules of evidence.

Questionable Objections

Certain objections—which counsel may attempt to invoke—are improper, inappropriate, or not recognized in a jurisdiction. These improper objections vary among jurisdictions, and include the following:

Irrelevant, Immaterial, Incompetent. This broad objection may be inappropriate because it is too general. Irrelevancy is a proper ground for an objection. “Immaterial” is no longer a term recognized by the Federal Rules of Evidence. “Incompetent” refers to the ability of a witness to testify and not to specific questions or answers.

Improper and Unfair. This objection is too general and does not specify the ground of an objection. A reference to a more specific reason must be made, or this objection will commonly be overruled.

Self-Serving. This objection is usually groundless. In a general sense, evidence the opposing side attempts to introduce is self-serving, that is, it will serve that side’s interests and harm the other side’s case.

Prejudicial. This objection is also improper, for reasons similar to the inappropriateness of the self-serving objection. It is not sufficient that evidence is prejudicial for it to be excluded, the evidence has to be “unfairly prejudicial.” See Fed. R. Evid. 403.

Invades the Province of the Fact Finder. This objection may be too ambiguous to be useful. An expert witness can testify to an ultimate opinion; lay witnesses are able to testify to many common opinions. These responses could be said to invade the province of the fact finder, but they are admissible.

Objection Analysis

The following lists provide a summary of objections and a work form to prepare for evidentiary objections.

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