This is the first of the objection examples I promised. It draws on all of the Objection Basics information and a bit on a technique covered in Advanced Objection Techniques: Arguing Weight versus Admissibility, Parts I and II.
You’re cross-examining the witness over an incident in which they lied 5 years ago (responses numbered for convenient later reference). This, you believe, is relevant to his credibility, but opposing counsel objects to relevance, arguing that the incident was too long ago to be useful.
1. Opposing counsel: “Objection, Your Honor, Relevance.”
2. You: “Your Honor, may I respond?” [judge nods] “This evidence is relevant because it goes to the witness’s credibility.”
3. Opposing counsel: “Your Honor, may I respond?” [judge nods] “This evidence has no bearing on the witness’s credibility today; the alleged lie took place many years ago, it can’t be considered relevant to today’s case.”
4. You: “Your Honor, may I respond?” [judge nods] “The bar the relevance rule sets is a low one: evidence need only have any tendency to make any pertinent fact more or less probable. Past lying certainly tends to impact a witness’s credibility.”
5. Opposing counsel: “Your Honor, may I respond?” [judge nods] “The relevance rule does indeed set a low bar, but this evidence doesn’t meet even that test. The credibility that matters for this case is the witness’s credibility today, while he’s testifying. Such far-removed actions don’t impact that credibility.”
6. You: “Your Honor, may I respond?” [judge nods] “Counsel’s argument goes to the weight to be given this evidence, not its admissibility. Past lies, no matter how far removed, certainly have some tendency to impact the witness’s credibility. They’re arguing about how much impact that has, but that’s a question for the jury to decide.”
7. Opposing counsel: “Your Honor, may I respond?” [judge nods] “Your Honor, we’re not arguing about how much impact this incident has upon the witness’s credibility today- we’re arguing that there is and can be no impact. For evidence to be relevant, it has to have some tendency to make some pertinent fact more or less probable: this evidence has no such tendency.”
8. You: “Your Honor, may I respond?” [judge nods] “Counsel just told us that this lie can have no impact on the witness’s credibility. That’s the fundamental premise we have to accept for her argument to hold: that past lying not only does not but cannot have any impact on the witness’s credibility today. That’s simply absurd.”
[The judge is likely going to be antsy to rule by now- this has been a drawn-out objection battle. Many judges would have chosen to end it much sooner.]
This is, I think, a very high-quality objection argument. Each response was on-point and well-articulated. Let’s look at what made it good. Remember the three things I’ve said need to be clear in good objection arguments: the facts, the rule, and the connection between the two. Check how many times a rule was articulated here. I count three explicit paraphrases of the definition of relevance, and one clear connection between relevance and the witness’s credibility. Could they have worked it in more? They probably didn’t need to, but it could have been useful as a buying-time-to-think tactic. You could argue that response (5) involves that- does the attorney really have to reiterate that relevance is a low bar? Well, maybe not, but I think it’s a good lead in to saying that the evidence fails even the simple test relevance sets, which is a strong rhetorical tactic: it’s a clear and firm statement of the argument.
Did they keep the facts clear? I think so. The fact at issue here is very simple: the witness lied a number of years ago. Each side emphasizes the facts that are useful for their case: you reference past lies repeatedly, and opposing counsel keeps mentioning that the lie was years ago.
What about the connection between the facts and the rule? Both sides set out their versions of the connection at least once: “This evidence is relevant because it goes to the witness’s credibility,” and “This evidence has no bearing on the witness’s credibility today; the alleged lie took place many years ago, it can’t be considered relevant to today’s case” both make those connections. Notice that both of those statements came very early in the objection argument: it is important to make those connections early on so the judge can understand where the argument is going. Opposing counsel’s statement that “the relevance rule does indeed set a low bar, but this evidence doesn’t meet even that test” also clearly connects the relevance rule in general to this particular example- and does so while addressing the precise point you just made. Both attorneys are making many other points: you attack opposing counsel’s argument as a whole by pointing out that it goes to weight and not admissibility, and you attack a particular premise by asserting that denying a connection between credibility and lying is absurd. You’re not done purely by laying out your version of the facts, the rule, and the connection between the two: doing that is necessary for a good argument, but it often isn’t sufficient. Notice also that none of the responses made fit into any particular formula. Objection arguments should never be formulaic. Each response is structured in that all the sentences fit together in a logical way, but that structure is and should be dictated by the unique logic of each argument, not by any external rules.
No comments:
Post a Comment