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Evidence

Hearsay

The credibility of any witness's testimony depends upon three factors: (1) whether the witness accurately perceived what he or she described; (2) whether the witness retained an accurate memory of that perception; and (3) whether the witness's narration accurately conveys that perception. In order to be allowed to testify, the witness generally must take an oath, must be personally present at the trial, and must be subjected to cross-examination. These conditions promote the factors that lend themselves to the witness's credibility. The rule against HEARSAY further bolsters the oath, personal presence, and cross-examination requirements.

Hearsay is a statement, made out of court, offered in court to prove the truth of the matter asserted. The statement may be oral or written, or it may be nonverbal conduct intended as an assertion, such as pointing to a crime suspect in a police line-up. The act of pointing in response to a request for identification is the same as stating, "He did it." Not all nonverbal conduct is intended as an assertion, of course. For example, a person usually opens an umbrella to stay dry, not to make the assertion, "It is raining."

Sometimes, statements made out of court are not hearsay because they are not offered for the purpose of proving the truth of the matter asserted. For example, suppose that a man who

Objections

Evidentiary Objections

At every trial or hearing requiring the admission of evidence, attorneys have the duty to object to evidence that the rules of court deem inadmissible. Objections must be made in a timely fashion, as soon as the witness or opposing party attempts to improperly introduce evidence. An attorney who fails to immediately recognize and object to inadmissible evidence faces serious consequences: the evidence may be admitted for the judge or jury to consider, and should the case be appealed, the appellate court will allow it to stand as admitted. On the other hand, an attorney who makes frequent objections to proper, admissible evidence runs the risk of alienating the jury or angering the judge. A trial lawyer therefore must learn to quickly recognize and correctly object to inadmissible evidence.

Once an attorney objects, the judge must decide whether to sustain the objection and disallow the evidence, or overrule the objection and permit the evidence. To assist this decision, the attorney must generally tell the judge the legal basis for the objection.

Objections to Questions
Objection Legal Basis
Calls for an irrelevant answer The answer to the question would not make the existence of any consequential fact more or less probable.
Calls for an immaterial answer The answer to the question would have no logical bearing on an issue in the case.
Is asked of an incompetent witness The witness is disqualified by statute from testifying, owing to age, lack of knowledge, or mental illness.
Violates the best evidence rule The original document, rather than testimony, contains the best evidence.
Calls for privileged communication The information sought is PRIVILEGED COMMUNICATION, such as that between attorney and client, physician and patient, or husband and wife, and is barred from disclosure.

Calls for a conclusion The question improperly asks the witness to reach a legal conclusion, which is a job reserved for the judge or jury.
Calls for an opinion. Generally, only expert witnesses may render their opinions; lay witnesses must testify only regarding their observations.
Calls for a narrative answer. Witnesses must respond concisely to individual questions, not give a long, rambling explanation.
Calls for hearsay The answer would be inadmissible hearsay.
Is leading. The questioning attorney may not frame a question in such a way that it suggests the answer.
Is repetitive (or has already been asked and answered) The question has already been asked and answered.
Is beyond the scope On cross-examination, questions normally may not address matters not covered on direct examination.
Assumes facts not in evidence Part of the question assumes that certain facts are true, when such facts have not been admitted into evidence or their existence is in dispute.
Is confusing (or misleading or ambiguous or vague or unintelligible) A question must be posed in a manner that is specific and clear enough that the witness reasonably knows what information the examiner seeks.
Calls for speculation Questions that ask the witness to guess or speculate are improper.
Is compound The question brings up two or more separate facts, and any simple answer would be unclear.
Is argumentative The question is essentially an argument to the judge or jury; it elicits no new information but rather states a conclusion and asks the witness to agree with it.

Is an improper characterization For example, the question calls the defendant a spoiled brat, greedy pig, or frenzied dog; characterization is something the jury or judge, not a witness or attorney, should infer.
Mistakes evidence (or misquotes the witness) Misstating or distorting evidence, or misquoting a witness, is improper.
Is cumulative When numerous witnesses testify to the same facts or numerous exhibits demonstrate the same things, without adding anything new, the evidence is objectionable.
Constitutes an improper impeachment Rules surrounding the impeachment of a person's character or credibility are highly technical. For example, evidence of a prior inconsistent statement made by a witness may be used only if the statement is materially inconsistent and is offered in the proper context.
Violates the parol evidence rule The PAROL EVIDENCE rule bars evidence of oral, or verbal, modifications or contradictions of a written contract that is complete and clear on its face.
Is unresponsive (or volunteered) An answer that does not directly respond to a question is objectionable as unresponsive; an answer that goes beyond what is necessary to answer the question is objectionable as volunteered. Only the attorney who called the witness may object on these grounds.

Objections to Answers

Is irrelevant

Is immaterial

Is privileged

Is a conclusion

Is improper opinion

Is hearsay

Is narrative

Is improper characterization

Objections to Exhibits
Objection Legal Basis
Lacks proper foundation (or lacks foundation, or has no foundation) Before exhibits can be admitted into evidence, attorneys must establish the necessary foundation, or the facts that indicate the exhibit is what it purports to be. For a photograph of a crime scene, this might include calling the person who took the picture as a witness and asking whether she was at the crime scene, had a camera, and took a picture, and whether the exhibit is that picture.
Lacks authentication Writings and conversations must be authenticated, or shown to have been executed by a party or that party's agent. For example, before testifying about a telephone conversation, a witness must demonstrate his knowledge of who was speaking on the other end of the telephone.
Is prejudicial The exhibit's prejudicial effect outweighs its PROBATIVE value. This objection is often raised with photo exhibits. A color photo of a murder victim may so prejudice the jury, without adding information helpful to determining the murderer, that the judge may disallow the photo as evidence.
Contains inadmissible matter Exhibits in the forms of charts, diagrams, and maps must not disclose otherwise inadmissible material to the jury. For example, in most jurisdictions, evidence that a defendant in a personal injury case has insurance that may pay for the plaintiff's damages is inadmissible. A chart, shown to the jury, that conveys the name of the defendant's insurance company is improper and objectionable.
Is irrelevant
Is immaterial
Contains hearsay

Nonevidentiary Objections

Attorneys may also object to situations that arise during a trial or hearing that do not concern matters of evidence. During VOIR DIRE, or jury selection, attorneys may not argue to prospective jurors the law or the facts that will arise at trial; if they do, they will likely receive an objection from opposing counsel. Likewise, attorneys often object to arguments made during opening statements, because opening statements are limited to a discussion of the evidence that will be presented during the trial. An attorney's personal opinion on any evidentiary matter is also objectionable because it places the attorney's credibility directly at issue. And a personal attack by an attorney against a party, witness, or opposing counsel is unprofessional and will almost always result in a sustainable objection.

FURTHER READINGS

Park, Roger C. 2001. Trial Objections Handbook 2d. St. Paul, Minn.: West Group.

claims that a collision between his car and a truck rendered him unconscious files a lawsuit against the truck driver for NEGLIGENCE. The truck driver wishes to introduce as evidence a statement that the man made seconds after the accident: "I knew I should have gotten my brakes fixed; they haven't been working for weeks!" If the purpose of offering the statement is only to prove that the man was conscious and talking following the accident, the statement is not hearsay. However, if the statement is offered to prove that the man's brakes were not working and therefore that he caused the accident, then the statement is offered for its truth, and it is hearsay.

The Federal Rules of Evidence state generally that hearsay is not admissible evidence. The reason is that it is impractical, and in most cases simply impossible, to cross-examine the declarant of an out-of-court statement, or to have the declarant take an oath prior to making the statement. Thus, the credibility of an out-of-court statement cannot be easily ascertained. But the hearsay doctrine is extremely complex. Under the federal rules, for example, most admissions of guilt are not considered hearsay and are therefore admissible, even though they might be stated out of court and then offered as evidence. The federal rules list more than 25 exceptions to the general hearsay prohibition. These exceptions apply to circumstances believed to produce trustworthy assertions.

Some exceptions to the hearsay rule require that the person who made the statement be unavailable to testify at trial. One example of this is when a person who is mortally wounded makes a statement about the cause of her death, just before dying. Under this hearsay exception, the victim's statement assigning guilt or causation is made admissible because the victim is not available to testify at trial, and the need for the information is given greater weight than the fear that she lied. Some have argued that the DYING DECLARATION exception exists at least in part because of the belief that persons would not waste their last breaths to utter a falsehood. One federal court commented, "More realistically, the dying declaration is admitted because of compelling need for the statement, rather than any inherent trustworthiness" (United States v. Thevis, 84 F.R.D. 57 [N.D. Ga. 1979]). This exception proved noteworthy in the October 1995 trial and ultimate conviction of Yolanda Saldivar, who was accused of gunning down tejana singing star Selena Quintanilla Perez in a Corpus Christi, Texas, motel. Motel employees testified that Selena's last words before collapsing and dying were, "Lock the door! She'll shoot me again!" and "Yolanda Saldivar in Room 158." Saldivar received a sentence of life in prison following her conviction of murdering the 23-year-old recording artist.

Under some circumstances, the availability of the declarant to testify is immaterial. For example, the excited-utterance exception to the hearsay rule allows the admission of an out-of-court statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" (Fed. R. Evid.803(2)). The premise for this exception is that excitement caused by the event or condition leaves a declarant without sufficient time or capacity for reflection to fabricate, thus the statement is considered truthful. An example of an admissible excited utterance is the statement, "Look out! That green truck is running a red light and is headed toward that school bus!" Other examples of hearsay exceptions include statements of medical diagnosis, birth and marriage certificates, business records, and statements regarding a person's character or reputation.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Estate for years to Ex proprio motu (ex mero motu)Evidence - Witnesses, Expert Witnesses, Hearsay, Objections, Nonevidentiary Objections, Authentication And Identification, Polygraph Tests