Why would I want to object to evidence?
Once evidence is given to the judge, it is part of the official court record, and the judge can consider it when deciding your case. A successful objection will keep evidence from entering the record. This means the judge or jury cannot use that evidence to decide your case.
You would want to object to evidence if:
- it harms your case; and
- there is a rule of evidence that says the evidence should not be allowed.
Here are a couple more reasons why it is important to object to evidence:
- Making an objection at the time the evidence is admitted and including the reason why you are objecting can be important if you later decide to appeal the case. Any time you object, the judge might disagree and allow the evidence into the record. If you lose your case, and the evidence that was allowed in was important to the case, then you might be able to appeal based on the judge’s decision to allow in the evidence. However, if you did not object to the evidence when it was entered, then you may not be able to appeal based on that issue because you failed to “preserve” the objection in the record, even if the evidence should not have been allowed in. Please see our Filing an Appeal page for more information on what an appeal is and about preserving the record. Similarly, if the other side objects to evidence that you are trying to have admitted and the judge allows (“sustains”) the objection and doesn’t admit (“excludes”) the evidence, it is important for you to object to the exclusion of the evidence and explain why the evidence was both relevant and important to your case. This is called making a “proffer.” While sometimes it can be difficult to ask the judge to allow you to tell him/her the reason your evidence should have been admitted, if you don’t, you may not be able to appeal your case based on the judge’s improper exclusion of evidence. In preparing for trial, it helps to anticipate what evidence the other side likely will try to have excluded and practice your argument as to why the evidence should be allowed (“admitted”).
- Sometimes, if your witness is having difficulties while testifying under cross-examination, you may want to object to a question to disrupt the flow of questioning. This can give your witness a chance to regroup and hopefully answer the following questions better. This tactic should be used sparingly, however, because it can backfire if the judge thinks you are only objecting to be disruptive. You must have a valid basis to object, like if the question has been asked and answered or if the other attorney is badgering the witness. Every time you object, make sure you have a reason for the objection and you are prepared to explain it.
Make sure that you only object when it is needed. Objecting too often to evidence without a valid reason can make it more difficult for you when you do make a valid objection. The judge may not take any of your objections seriously and you may find yourself in a “boy who cried wolf” situation. Too many objections might also affect your rapport with the judge or jury.
What steps do I need to take during the trial to set myself up for possibly being able to appeal if I lose?
Although it may seem odd to start preparing for the possibility of filing an appeal while the trial is still going on, you will only be able to appeal an unjust trial ruling if you take steps during the trial to “make a record” that demonstrates your grounds for appeal. Here are the most important things you need to know and do during the trial:
- Make timely objections to any mistakes. You will need to object to any mistakes the trial court judge makes as they happen so that the judge knows that you believe a mistake was made and has an opportunity to possibly correct that mistake. Making timely objections is called preserving your record. If you file an appeal, the appellate court will only be looking at the “record,” which includes all the documents from the trial litigation as well as the transcript of what was said during the trial, including any objections made. The appellate court will usually only consider those mistakes that you “preserved” in this way.
- Anticipate and prepare for rulings on evidence. Often the need to object during the trial will be in connection with evidence you want the judge to allow in (“admit”) or evidence proposed by the opposing party that you want the judge to keep out (“deny”). It is important to prepare in advance your arguments in support of your own evidence as well as to think through possible challenges to any evidence that the other side is likely to try to admit. As part of that preparation, think about the possible need to make a “proffer.” A proffer is an argument you make after the judge has refused to admit a certain piece of evidence. You will need to politely ask the judge for the opportunity to make a proffer as to why your evidence should have been admitted. For example, if the judge refuses to allow you to submit threatening text messages from the abuser because they were sent too long ago, your proffer could be that the texts should have been admitted to show the long history of abusive behavior and why you are so fearful.
- Know and ask for what you want. Make sure to ask the judge for everything that you want as a result of the trial and be prepared to explain the reasons for your request. For example, if you are asking for a protection order for yourself but you also fear for your children’s safety, be sure to ask for your kids to be included as “additional protected parties” on the order or request supervised visitation for the abuser. And, importantly, be prepared with a list of reasons to back up your request. You will also need to consider when you will have the opportunity to make your request, which could be in your opening statement and/or your closing argument. Making a closing argument will be especially important If you have not had a chance to ask for what you want by the end of trial. If the judge doesn’t ask if the parties want to make closing arguments, politely speak up and ask if you can do so. If the judge refuses, politely explain why you were hoping to make a closing argument.
- Post-trial motion as a possible last resort. If you feel you did not have the opportunity to fully present your case, or if the judge rules against you for a reason that you couldn’t address during trial, it may be worth filing a post-trial motion, such as a motion for reconsideration or a motion to stay.
How do I make an objection?
The rules of evidence guide what kind of objections you can make. To object, you have to say “Objection” as soon as you hear statement in testimony or a question posed to a witness that is objectionable. You can stand up if you need help getting the judge’s attention. You can object to an answer that a witness is giving and you can also object to a question from the opposing party, if the question itself violates a rule of evidence. If the other party is presenting physical evidence, which could be photographs, documents, etc., you can object at any time before the judge admits the evidence into the record. The judge might ask you what the basis is for your objection. You should be prepared to tell the judge why it is that you are objecting, based on the rules of evidence.
After you make an objection, the judge then decides whether the objection should be:
- sustained, which means the evidence should not be considered; or
- overruled, which means the evidence can be considered.
What are some common objections?
Here are some common reasons for objecting, which may appear in your state’s rules of evidence.
To skip to a specific section, click on the name of that objection: Relevance, Unfair/prejudicial, Leading question, Compound question, Argumentative, Asked and answered, Vague, Foundation issues, Non-responsive, Speculation, Opinion, Hearsay
You can object to the relevance of evidence if you think a piece of evidence or something a witness is saying has nothing to do with the case or it is not important in determining who should win in court.
Example: Asking how many sexual partners someone has had wouldn’t be relevant in a protection order case.
Example: Evidence that one of the parties has been in jail before may be relevant, but that evidence may also be unfairly prejudicial if it paints the party in a bad light to the judge or jury.
If the other party poses a question on direct examination that leads the witness to a certain answer, then you can object to the question as leading. This is usually the case with “yes” or “no” questions. Keep in mind that the judge might allow some leading questions during direct examination for simple background information to move the testimony along faster. For example, let’s say the other party’s mother is testifying, the judge might allow the question “You are the respondent’s mother, correct?” instead of “How do you know the respondent?” However, when someone is asking about issues that directly relate to the case, leading a witness is not allowed.
Example: On direct examination, this leading question could be objected to: “The car that you saw leave the scene of the robbery was blue, right?” Instead, it should be asked: “What color was the car that you saw leaving the scene of the robbery?”
A compound question is when two or more questions are combined as one question. Compound questions are not allowed because they can confuse the witness, the judge, and the jury. Also, it may not be clear for the court record which of the questions the witness is answering.
If you find yourself asking a compound question, don’t get flustered with the other party’s objection and skip the issue entirely. Just separate out the questions, ask them one at a time, and they might then be allowed.
Example: Why did you go back into the house and what made you think you it was a good idea to then take the children away?
When the person asking cross-examination questions begins to argue with the witness, known as “badgering the witness,” then the other party can object to the questioning as argumentative.
- Opposing party’s attorney: “You are not afraid of my client, correct?”
- You: “Yes, I am.”
- Opposing party’s attorney: “Oh come on, how can you be afraid of a guy who weighs 120 lbs when you weigh 300 lbs?”
- You: “I am afraid of him no matter his weight.”
- Opposing party’s attorney: “Well, you didn’t look very afraid to me when you walked into court today.”
- You: “Objection, Your Honor, argumentative.”
Asked and answered
Sometimes during cross-examination, the person asking questions might ask the same question over and over again, perhaps in slightly different ways, or re-ask a question s/he had asked earlier in the testimony. What’s unique about this objection is that it could come up in two different scenarios, First, opposing counsel could repeatedly ask you or your witness the same question, hoping that contradicting answers will be given. Second, opposing counsel could repeatedly ask his/her own client the same question in slightly different ways, hoping that the client will give a better answer than one given before. Either way, a question can only be asked once, and after it has been answered, any further attempts to ask the question are objectionable.
- Other party: “Do you remember when I wrote you a check for $10,000?”
- You: “No, that never happened.”
- Other party: “You’re saying that I didn’t write you a check for $10,000?”
- You: “No, you didn’t.”
- Other party: “I’m talking about last year, you remember, the check I wrote for you, right?”
- You: “Objection Your Honor, asked and answered.”
A vague question is when it is difficult or impossible to tell what the question is about. You would want to object to a vague question that is asked of your witness because of the risk that the witness will misunderstand the question and say something that will hurt your case. If the question is objected to, the person asking the question might then be able to ask the question in a different way that makes more sense or is more specific.
Example: Let’s say the opposing party asks “Can you tell the court where you went earlier?” The term “earlier” is not specific enough; it’s vague. After an objection, the question could be rephrased to say “Can you tell the court where you went this morning right before you came to court?”
In addition, a question that refers to “this” or “that” might be too vague if there is no context as to what “this” or “that” refers to.
A question or response can be objectionable if a person failed to explain the background circumstances of how s/he knows the information s/he is testifying about, or are being asked about. When answering about specific facts, the witness has to set the stage and explain how s/he knows the information that s/he knows.
Example: A person can’t testify that it was a certain person’s voice on the phone, without first explaining that s/he had spoken with the person many times over the last few years and the call came from the same number.
When a witness starts responding to a question with information that is completely unrelated to the question, you can object to it as being “non-responsive.” This can be especially important in cross-examination when you are looking for very specific “yes” or “no” answers.
- You: “Isn’t it true that you put your hands around my neck after you pushed me on the ground?”
- Other party: “Well, yes I did.”
- You: “When I broke free, isn’t that how you got the bruises on your arms?”
- “Look, I didn’t mean to hurt you, I was just trying to get your attention and….”
- You: “Objection Your Honor, the answer is non-responsive.”
- Judge: “Please answer the question sir.”
In addition, sometimes when a witness is being questioned on direct examination, s/he will make an effort to explain away a bad answer during the next question, regardless of what the question asked is. This is another instance when you could object to the non-responsive answer.
- Other party’s lawyer: “How many time did you see your children last month?
- Other party: “Once.”
- Other party’s lawyer: “When is your next visit scheduled for?”
- Other party: “The reason I only saw them once last month is because their mother likes to play games and hang the children over my head and…”
- You: “Objection, Judge, non-responsive!”
The speculation objection can be used in two different situations. First, if a witness does not know a fact to be true or not, but testifies about it anyway, this testimony would be objectionable as speculation. A witness must have personal knowledge of a fact to testify about that fact and put it into the court record.
Example: A witness could not testify that s/he thinks a person left the house at 8:00 pm unless s/he actually saw the person leave the house, or s/he has some other valid basis for that belief.
Second, if a question that is posed can only be answered by using speculation, the question would be objectionable.
- Opposing attorney: “What do you think your sister was thinking when she left?”
- You: “Objection, Your Honor, the question calls for speculation.”
If a witness testifies about an opinion s/he has that is technical in nature and not based on any facts the witness has first-hand knowledge of, then you may be able to object based on it being their opinion. Generally, only a witness who has been recognized as an expert witness by the judge can offer an opinion.
Example: An abuser cannot testify that you are “crazy.” S/he can testify about behaviors s/he might have witnessed that s/he finds concerning. However, any testimony that might suggest some sort of diagnosis would usually be objectionable as opinion. Similarly, you could not testify definitively that the substance you found in the abuser’s glovebox was cocaine unless it was tested by a lab or the abuser admitted it. You could testify that you saw “a white powdery substance in a baggie that appeared to be cocaine,” based on your understanding of the drug and what you looked up online. However, a judge may allow testimony such as “I am a good mother” or “He is a good father” even though that is an opinion.
A person can only testify as to what s/he knows to be true, not what s/he heard from someone else. If a witness tries to testify about what a non-party told him/her or tries to enter into evidence something in writing that a non-party wrote, then the testimony or written evidence is objectionable as hearsay. However, there are hearsay exceptions that may apply. You can learn more in What is hearsay? and What are some hearsay exceptions?
When would I object to specific kinds of evidence?
The kind of evidence the other party is trying to give the judge will affect when and how you make an objection. Normally, an objection is made by simply saying, “I object,” or, “Objection.” If the reason for the objection is obvious, then the judge may make a ruling without making you explain why you are objecting. If the reason for your objection is not obvious, you should be prepared to explain the reason why you are objecting.
You can object at any point while a witness is testifying. This can be during or after a question, while the witness answers the question, or immediately after the witness finishes answering but before the next question is asked.
You can object during or after the question if the question itself is objectionable or if it calls for an answer that is objectionable. For example, the direct examination question is leading; a question calls for hearsay; or the witness does not have personal knowledge of what is being asked so the question calls for speculation.
You may object while the witness answers the question or after the answer is complete if the question itself is not objectionable, but while answering it, the witness says something that is objectionable. For example, the witness mentions that s/he heard from someone who heard from someone that something happened. This kind of response is most likely hearsay and you can interrupt the witness to object while the witness is answering or object immediately after the witness finishes answering. Note: If there is a jury, you should try to object as quickly as possible so that the jury doesn’t hear any objectionable testimony that they would have to try to forget.
Documentary or physical evidence
Parties have to go through a process to enter documentary or physical evidence into the court record. During that process, the party that is entering the evidence will show the document, item, etc., to the other party so that s/he can examine the document. At this point, you can object to the evidence by saying “Objection” and explaining why you feel the evidence should be kept out of the record. If you don’t have a reason to object at the moment that the evidence is first shown to you, it’s possible that you may come up with a reason to object after the witness is questioned about the evidence. The party entering the evidence may ask the judge for “permission to enter the evidence into the record” or may “offer the document marked for identification as Exhibit A into evidence.” This is another opportunity for you to object to the evidence. At this point, the judge might ask if you have any objections to the item being entered into evidence but if the judge doesn’t ask, you can still object. Be prepared to explain why the evidence should or should not be admitted.
Demonstrative evidence (charts, diagrams, etc.)
Because demonstrative evidence is usually a combination of testimony and documentary evidence, how you object will depend on what is actually happening in court. Sometimes a witness might draw a diagram in court and then the party questioning the witness may ask to admit the diagram into evidence. You may be able to object while the witness is testifying and drawing the diagram, or you could object at the point where the other party tries to enter the diagram into evidence. Sometimes an opposing lawyer or party may prepare demonstrative evidence ahead of time, which could be slideshows, poster boards, etc., and will ask for it to be admitted into the record as evidence but not during anyone’s testimony. If this is the case, you can object to the evidence being entered into the record at the time the opposing party offers it into evidence.
Keep in mind that for any form of evidence explained above, an objection should only be made if it is objectionable. In other words, there must be a reason for your objection, such as one of the ones listed in What are some common objections?