Through The Legal Looking Glass--I Object (Part 2)

Welcome back to legal land, the world of fantasy and fun acting as the underpinnings of the concept of ordered liberty. On June 16, 2009, I covered the first half of the most common objections to testimony raised in court. This time I'll finish with the objections, and add a few notes about what you see on TV and in the movies versus how it works in real life.

Earlier, I covered most of the major objections to testimony. Now I'll address a few more which are common, but not as well known to those who have never served on a jury. As a reminder, we are dealing with testimony in civil cases only. Criminal law is a different breed of cat, with its own unique objections along with all the civil objections.

Occasionally, you will hear the objection "foundation" or "improper foundation." This means the attorney has tried to ask a question which requires prior physical evidence or expert testimony which has not been introduced. A simple example would be an attempt to ask a question about a photograph without first having established what kind of photographic equipment was used, who took the picture, what photographic methods were used, and when it was taken in relation to the matter before the court.

Most foundational questions are handled in pretrial conferences, and the attorneys stipulate that the evidence may be introduced without objection at trial. But until this has been done, or the foundation properly laid out in court, the attorney may not question the witness concerning the photograph. So when you see Brad Pitt or Tom Cruise whip out a photograph, demanding to know if the witness has ever seen it, with great drama and excitement following this sudden revelation, you have been bamboozled. It simply does not happen like that.

Often movies and TV shows depict witness testimony as one long series of questions from both attorneys seeking to get information without any regard for what went before. That does not happen. The attorney who calls the witness originally conducts what is called direct testimony. This is followed by cross examination. The second attorney cannot ask a question about any testimony which was not first addressed in direct examination. The objection is "beyond the scope of direct."

An informal, but very legitimate objection which is covered by other more formal objections does show up in drama and real courtrooms. You will hear "counsel is testifying," or "counsel is making a speech." That's a no-no, and when you see one of those long, rambling speeches posing as a question in a drama, it's there for effect, not for depiction of courtroom reality.

An objection which may confuse the average viewer because it sound so obvious is "best evidence." Of course we want the best evidence. But that's not what the objection is about. When an attorney asks a question about a document, that document must already have been admitted into evidence. And the "best evidence" is the original document. Unless the attorney eliciting the testimony has established a sound legal reason why the original document is not being produced, and that the document that is being produced in its place is fully verified and valid, no testimony regarding the document will be allowed.

When an attorney asks "did you go into the ABC store at 4 PM on the date in question" and the witness replies "I ordinarily don't go into that store at all," the witness has not answered the question asked, and the attorney will object "non-responsive." If the witness continues to do the same thing even after the attorney's objection has been sustained, you will sometimes hear the attorney say: "Your Honor, may I request that you order the witness to answer the question?" At this point the judge will intervene, and if the witness is truly determined to avoid answering the question, the judge can be quite harsh, up to and including a citation for contempt. Furthermore, for the record, the attorney will usually move the court to strike all the non-responsive answers.

And NOW, for the one that is so commonplace, and so frequently misunderstood: Hearsay (as distinguished from heresy, which is heard in another court entirely).

What is hearsay? It's an ancient rule of common law that says nobody can testify to what somebody else said, saw or heard. The most frequent way of phrasing it is "an out of court statement offered to prove the truth of the matter stated therein." My home state of California defines it as follows: Cal Ev Code, Sec 1200(a) Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissable. (c) This section shall be known and may be cited as the hearsay rule.

John cannot ordinarily testify that he heard Joe say that Fred caused the accident. Joe and Fred both need to testify, or nothing they said will come into the record. Unfortunately, the next twenty sections of the evidence code list all the exceptions to the rule. That is a discussion which could fill two or three more posts, so I will defer that to another time. I will simply state a few of the most common. If the witness is testifying to what another person said, and what that person said would be considered reliable because it was testimonial proof that the other person was saying something detrimental to himself, it is frequently allowed. For instance, Joe is a witness at an accident scene. John was the driver of one of the cars involved in the accident. At the scene John says "I ran the red light and didn't see the other car." That is called an "admission against [pecuniary] interest" and the court will usually allow Joe to testify to what John said.

Another exception is "excited utterance (spontaneous declaration)." Joe hears John say "Oh, my God, I threw that rock, but I didn't expect it to break the window and hurt anyone." Joe will probably be allowed to testify to what he heard John say. The reasoning behind this exception is that without coercion and time to reflect, nobody would say such a thing unless it was the truth.

In a contract lawsuit, you might think that Joe testifying that John said "I accept" is hearsay. But Joe is only testifying that the words were said, not that they were true, and thus it is an exception to the hearsay rule. Other common exceptions are "past recollection recorded" in which the testimony is from something said (and written down) at an earlier time. The "business records" exception allows testimony about records prepared in the ordinary course of business without the necessity of calling the person who actually made the records. Things like marriage and baptismal certificates are routinely allowed in without testimony from those who prepared the documents. And beside all the exceptions allowed by individual states, the federal rules just cut straight to the chase and created the "catchall exceptions."

So how much do the objections in the real world of the courtroom differ from those you see in staged dramas? More than you might imagine. All the shouting, arm-waving, and loud arguments are non-existent. That's just TV and movie stuff. In most courts "objection" is all you'll hear. In some courts, a brief comment is required to go with it stating the simple ground for the objection. In that case, you will hear "objection--foundation." The judges want shorthand, not lengthy speeches. If the other attorney truly believes the objection is improper, he is given the opportunity to simply say "the objection is not well-taken because . . . . " The judge will often simply sustain or overrule the objection, and everybody moves on. Often, the attorney who has asked the question improperly will be told to "re-phrase." But if the judge wants further argument, he will call the attorneys to the bench ("counsel, come to the bench," or "counsel, sidebar"). If the judge thinks the jury is in any way being affected by the colloquy going on outside their hearing, he may take the argument into his chambers out of the sight and hearing of the jury. And in complicated legal wrangling over objections, the court may simply defer its ruling for a few hours or days, and require the attorneys to return with research and briefs on the topic.

The more experienced the attorneys, the less likely you are to see constant objections being raised. Some basic rules of thumb determine when an objection will be raised. The lawyer should feel fairly certain that the objection will be sustained. The objection may be raised if the testimony would be damaging to the case to such an extent that failure to object would be more dangerous than risking the objection being overruled. There will be an objection if the witness is testifying in a misleading way which damages the client's position seriously. Tactically, an attorney may object if a long stream of genuine but harmful testimony is being obtained, and the attorney simply needs to disrupt the roll the opposition is on. Sometimes, the purpose of the objection is to preserve a record of pretrial motions or a previous similar objection.

So why would an attorney not object? The objection might be valid, but it is on a point that is harmful but not deadly, and an overruled (or even sustained) objection would only call attention to the opposition's position. Or the objection is valid, but only slows things down since the testimony will come in anyway, just by a longer route. As a practical matter, jurors tend to get short-tempered with attorneys who slow the proceedings down with constant objections, no matter how valid. And sometimes the attorney will want to listen to an entire line of testimony to see if it could be fatally flawed overall. In that case he will defer his objection until a point at which he can object, and have all or the major part of the testimony stricken from the record. Alternatively, if the attorney objects and is overruled, he may say "Your honor, I will defer further objections to this testimony subject to a later motion to strike."

You are all now experts on testimonial objections. So the next time you see your TV or movie lawyer make an improper objection, make a speech during the questioning period, or violate the rules of evidence, I expect you to stand up, get out of your chair, face the TV or the movie screen and shout: "I'm as mad as hell, and I'm not going to take this anymore."