Objection Basics: Part III

All of the rules quoted or referred to in this post will be the College Rules, 2012.

In Objection Basics: Part II, we talked about the basic structure of an objection argument, and how it should make clear three things: the rule, the facts, and the connection between the two.
Having said all that, your initial objection response should almost never do all of those things. The job of your initial response is to give a basic sketch of the grounds of your argument. For instance, if a witness on direct examination testifies, “She yelled, ‘He has a gun!’” and opposing counsel objects to Hearsay, your response would be: “Your Honor, this falls under the ‘present sense impression’ exception to Hearsay, Rule 803(2).” That makes a claim about the law, but it doesn’t really explain the law or the connection between it and the facts. It is a very clear and simple statement of the core of your argument, and if you’re lucky the judge will rule for you right then and there. Don’t overcomplicate things while that kind of fast ruling is still an option.
Sometimes, however, that sort of brief statement will sound extremely counterintuitive and unclear to the judge, and in those situations more explanation is needed. At such times, when you’re giving a complete argument, you need to keep those three basic components we discussed in Part II in mind.
Let’s pretend a witness on direct examination said “She yelled ‘Stop!’”. Your opponent stands up and says: “Objection, Your Honor, Hearsay.” What’s your response? Well, the definition of hearsay is: “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” You know from your Mock Trial practices that the important part of that definition for this objection argument is that hearsay has to be a “statement”. You further remember that a statement is “an oral or written assertion.” So you tell the judge, “Your Honor, Hearsay only covers statements, defined as ‘oral or written assertions.’” There’s your statement of the rule. Now you have to explain the connection between that rule and the content here: “‘Stop!’ is not a statement, because it doesn’t assert anything. Therefore it isn’t hearsay.” See how you tied it back to both the definition of a statement- “it doesn’t assert anything” and to the bigger rule- “it isn’t hearsay”?
The short version of that objection response would be “Your Honor, ‘Stop!’ is not a statement.” Even for judges, the commonsense definition of ‘statement’ is likely to leap to mind, and on that view saying that “Stop!” is not a statement is absurd. Remember how there’s a possibility they’ll rule immediately for you when you say something simple and compelling? The reverse is also true- there’s a possibility they’ll rule immediately against you if you say something they consider obviously incorrect. End on a note the judge will find compelling.
Let’s look at an example in which opposing counsel’s choices influence your own.
You cross-examine a witness over an incident in which they lied, 5 years ago. Opposing counsel objects to Relevance.
Your response: “Your Honor, this evidence is relevant because it goes to the credibility of the witness.” This is another simple, short response- the connection between a witness lying and their credibility is fairly intuitive.
What if opposing counsel objects to the same thing under Improper Character Evidence?
Your response: “Your Honor, evidence that goes to the witness’s character for truthfulness or untruthfulness is an exception to the Improper Character Evidence Rule. Past incidents in which she lied go directly to her character for truthfulness.” Why the difference? Well, you might have been alright just saying with only the first sentence here, leaving out explicitly connecting the facts and the law. The connection between “past lying” and “character for truthfulness” seems pretty obvious. But Improper Character Evidence is a complicated, confusing, and often unfamiliar objection, even for experienced legal practitioners. The judge is going to need to put a lot more mental energy into understanding the Improper Character Evidence objection than they would even a tricky Hearsay objection. Don’t count on them having plenty of mental capacity left over to put the pieces of your argument together- do that work for them.
In Objection Basics: Part IV, we'll discuss some guidelines for subsequent responses and analyze full-length objection argument examples.