EVIDENCE One of the most difficult areas in Trial Advocacy: i. Usually taught in the theoretical level ii. Mastering timeliness of objections is essential I. THE USE OF OBJECTIONS: o Recognize Buzzwords and react to them instantly o Be on guard to prevent the introduction of incompetent evidence that may do you harm o Its purpose: To stop an answer to a Q put to a witness To prevent receipt of documents Until the court has ruled on its admissibility o Ask yourself, IS THE OBJECTION NECESSARY? Determine if there is an advantage to be gained from making and sustaining the objection II. RIGHT OF PARTYS COUNSEL TO OBJECT: Court grants counsel of a party the right to question the admissibility of improper evidence III. GENERAL PRINCIPLES: React instantaneously but- Counsel must be reasonably sure that the answer will hurt his case, if not, do not object. Object only when either the answer or form of the question will hurt your clients cause. But do not let possible adverse reactions prevent you from objecting to damning or improper Q and As. 1. The Court dislikes objections. Minimize interference while evidence is being introduced, since the court sees lawyers who make constant objections as those who are trying to keep the real truth from them. 2. Will the answer hurt you? Save your objections for that which is certainly damaging. But object enough to let the judge know that you know how to make proper objections. 3. Do you have a solid basis? Have authority ready to support your objection to ensure it will be sustained. An overruled objection is often worse since it merely draws attention to the question and eventual answer. 4. Protect the record.
Practice Court 1 Report
Seguncencia S. Arpon
Errors in admitting evidence at trial are usually waived on appeal
unless a proper and timely objection was made during trial. 5. Anticipate objectionable matters. If you see that opposing counsel is heading towards an improper line, request to approach and seek the Judges ruling on the matter. 6. Can you use an objection as a tactical device? Use it to disrupt the opponent, but do so properly and only when there is legitimate basis. IV. 2 CLASSIFICATIONS OF OBJECTIONS: I. Directed to Substantive Evidence II. Directed to Form V. HOW TO MAKE OBJECTIONS: 1. Timeliness Applicable Rules: Secs. 34, 35, and 36 of Rule 132, Revised Rules of Evidence If offered orally: Object immediately; If in writing, within 3 days after notice. Keep in mind, that if not timely made, it is considered waived. 2. Legal Bases Should state the legal basis; must be done succinctly, without excessive argument. Insist on a ruling, To preserve a record by having an answer struck, do so promptly. 3. Specific and General Objections a. General: Grounds are generally/not stated Looked at with disfavor If the ground stated is so manifest, then it is sufficient Also sufficient if competent and incompetent matters are interwoven and quite difficult to distinguish b. Specific: True and exact ground of evidences inadmissibility Varies with each case Allows judge to intelligently rule on objection Points out the nature of inadmissibility Allows for objections to be reviewed on its merits VI. PROCEDURE IN MAKING OBJECTIONS: Safest: Make the objection, hesitate a moment to allow the court to sustain, before stating your legal basis for the objection. Always be prepared to state your legal basis. 2
Practice Court 1 Report
Seguncencia S. Arpon
Learn your judges practices regarding
objections There might be more than one ground for excluding evidence a. Question Proper and Improper in Part May be sustained, as it is not the duty of court to thresh out the competent from the incompetent part of the question. b. Manner of Making Objections Made clearly and openly, but done with utmost courtesy c. Frequent Objections Not Recommended Incessant objections on immaterial matters are bad trial practice. Not favored by the judge, as it may be indicative of an uncertain lawyer or one who keeps the truth from the court. VII. WAIVER OF OBJECTIONS May be made impliedly or expressly Expressly waived by withdrawal of objection, even if sustained. 1. Effect of Evidence admitted without objection May be considered if not objected; applies to documentary evidence Hearsay evidence without probative value, even if admitted w/o objection, will not sustain a finding if unsupported by other evidence. 2. Objection to evidence admissible for a special purpose If statement of particular purpose is absent, court will exclude it. 3. When repetition of objection is unnecessary Sec. 37, Rule 132: xxx questions being propounded are of the same class as those to where objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. Does not apply if subsequent evidence is not of the same kind previously admitted over objection. Where evidence initially excluded by objection is reoffered at the later stage of the trial, it must be objected again. VIII. MOTION TO STRIKE 1. When necessary; general rule
Practice Court 1 Report
Seguncencia S. Arpon
Opposing testimony, which is objectionable or unresponsive to
questions or unfairly prejudicial, may by proper motion, be stricken from the record. But cannot insist that competent and relevant evidence be stricken out due to its weight, sufficiency or credibility. 2. When to Move to Strike out a. Those admitted conditionally; b. Strike out certain class of testimony required by law to be corroborated in order to be legally effective; c. Improperly authenticated documents; d. Mass of evidence which appears insufficient for the particular issue; e. Where the answer to an unobjectionable question is inadmissible or non-responsive 3. Time for motion to strike Must be made at the time the testimony is given; or when the impropriety of the testimony becomes apparent. Trial court also has discretion to strike out incompetent/irrelevant evidence; parties may also apply to court to strike at anytime during trial, before close, or even during closing argument, previously admitted evidence. 4. Form of motion to strike Must be sufficiently definite; must remember that it goes to admissibility and not to weight. IX. OBTAIN A RULING If trial judge seeks to avoid a direct ruling, insist on a ruling. If opponents evidence is subject to connection, object and seek a ruling if it was not properly connected at close of his argument. 1. Ruling on the objection Sec. 38, Rule 132 provides that courts ruling must be given immediately after objection is made, unless it desires to take reasonable time to inform itself on the question presented. 2. Policy to be followed in ruling Current trend is to rule liberally. 3. Effect of ruling on objection If sustained- court declares that question is improper; witness ought not to answer; if overruled- question declared proper. A ruled objection does not preclude the counsel from seeking a reconsideration of the ruling. X. WITHDRAWING OBJECTIONS 1. Withdrawing questions
Practice Court 1 Report
Seguncencia S. Arpon
Usually done in the form of leading questions, which are
immediately withdrawn to eliminate irreversible error; considered an unfair technique. 2. Remarks of counsel or court Any statement made by the judge, counsel, witnesses or parties are made of record in stenographic notes; lawyer may also ensure that such remarks are taken down by making a request 3. Recourse when Evidence conditionally admitted An accompanying statement of the connecting facts made by counsel is indispensable as a safeguard against the indiscriminate use of irrelevant evidence and as a measure to enable the adversary to discover any objection that might be appropriate. But cross-examiner need not state beforehand the connection of a question that seems irrelevant, unless determined by the Court. 4. Motion to strike in case of failure to connect evidence If the promised connecting evidence is not introduced, opponent must move to strike out the original evidence. +++++++++++++++++++++++++++++++++ +++++++++++