Let’s keep the same facts that Example One uses, but both opposing counsel and the judge make different choices during the objection argument. Let’s also add some detail into the factual background: the lie was told in the course of an affair the witness had. This time opposing counsel objects under Improper Character Evidence. There’s an easy response to that- this questioning pretty clearly falls under an exception to that rule- but the judge’s understanding of that exception makes things... interesting. This example draws heavily on the discussion in Advanced Objection Techniques: Handling Judges.
1. Opposing Counsel: “Objection, Your Honor, Improper Character Evidence.”
2. You: “Your Honor, may I respond?” [judge nods] “This evidence falls under an exception to the Improper Character Evidence rule because it goes to the character of the witness for truthfulness or untruthfulness. The witness’s past lies give us reason to believe him untruthful.”
3. Judge: “What exception is that, Counsel?”
4. You: “Your Honor, rule 608(b) provides that specific instances of conduct of a witness may be inquired into on cross examination if probative of truthfulness of the witness.”
5. Opposing counsel: “Your Honor, may I respond?”
6. Judge: “One moment.” [finds rule in the provided copy of the Rules] “Counsel, this rule indicates that specific instances of conduct may not be proved by extrinsic evidence.”
7. You: “Your Honor, may I respond?” [judge nods] [reading from your copy] “Your Honor, the rule goes on to state that such incidents may be inquired into on cross-examination if probative of the witness’s truthfulness or untruthfulness.”
8. Judge: “‘In the discretion of the court.’ And I’m not convinced of the value of this line of questioning- you’re asking about one incident far removed from the events of this trial. How is this valuable for us today?”
9. You: “Your Honor, it is valuable for the jury to be able to assess the credibility of the witness in his testimony today, and his truthful character or lack thereof affects his credibility. His past lies demonstrate his untruthful character, and that’s valuable in assessing his credibility.”
10. Judge: “I’m not persuaded that the incident you’re exploring affects his credibility.”
11. You: “Your Honor, may I respond?” [judge nods] “Your Honor, the incident I’m referring to isn’t an isolated occurrence. This line of questioning provides evidence about a lie in furtherance of a systematic and deceptive violation of serious promises, not unlike the ones he made today. That is valuable information to have in evaluating his credibility.”
12. Judge [to opposing counsel]: “Response?”
13. Opposing Counsel: “Yes, Your Honor. Counsel’s comparison between the witness’s wedding vows and the promise to tell the truth that he made today is specious: the emotional and cultural context of an affair is completely different than the context of testifying in court. We have no reason to believe the circumstances of this past lie make it likely that he’ll lie today. The fact is that opposing counsel is delving into an isolated incident that occurred years ago. It’s not useful to us today.”
14. You: “Your Honor, may I respond?” [judge nods]. “The fact that the emotional context leading to an affair is different from the emotional context surrounding court testimony is irrelevant to the argument being made here. The issue is whether that lie significantly affects his credibility today, and it does. The simple fact that he’s willing to lie says something important about his credibility. His willingness to lie to those closest to him says something important about his credibility. And his willingness to lie in violation of a promise says something very significant about his credibility.”
[Again, this has been an exceptionally long argument and the judge could cut it off at any point]
See how completely different that example was? Opposing Counsel was shut out of the discussion for some time after the initial objection, because the judge was the active one. Lets look at a few tricky things that caused in your responses. First, the judge asked for a name of the exception you’re referencing. If that caused you a moment of confusion, you’re on the right track. You referenced an exception, sure, and you should be expecting questions and arguments on that point, but the judge’s question makes it sound like they think it has a name like hearsay exceptions do, and of course character evidence exceptions don’t work that way. The judge may genuinely not remember that. You responded as best you could have, substituting a rule number for a name. Notice that you did not correct the judge or attempt to clarify what they were asking for. The second difficulty was caused when the judge read the first sentence of the rule, which looks like it goes against you, without reading the second, which was what you were actually referring to. Of course, many judges will know that you weren’t using “extrinsic evidence” to prove your point here. But some won’t. It looks like you have to correct the judge, when you absolutely cannot do that. You managed that trick by framing it as simply providing the judge with more information. In this case, you simply read further into the rule. You didn’t contradict the judge- not even a “Yes, Your Honor, but...” You might also have noticed how that argument ceased to be about Improper Character Evidence after the judge asked about the value of the evidence. At that point, it’s essentially become a Relevance objection argument. No one said that- it’s unnecessary- and no one attempted to return the conversation to a discussion of the original objection. What the judge wants, the judge gets: if they’re leaning towards sustaining an Improper Character Evidence objection because they don’t think the evidence is relevant, as bizarre as that might sound, that relevance concern has become the biggest threat to your evidence and it’s what needs to be addressed. Opposing counsel goes along with the switch because a concern that the judge raises is probably one they’re inclined to be sympathetic to- it’s become the best way to keep that evidence out. Judges changing the objection argument from what it is to what they think it should be is a relatively common occurrence. You have to go with the flow.
I have a bit more to say about this example. Next time we’ll do the same sort of analysis with it that we did with Example 1, examining the way facts and law were connected and clarified in this argument.
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