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Essential Objections Checklist
A quick-reference list for your trial notebook.
By Leonard Bucklin
Excerpted from !uilding "rial #otebooks

"here are onl$ a couple do%en common evidence objections that are likel$ to be used in most
trials. Ever$ experienced civil trial law$er hears them over and over. "here are a number of other
objections that can be made. &ome evidence texts give lists of '() or more. !ut for all practical
purposes* there are onl$ the basic two do%en that $ou need to remember with un+ualified
certaint$ and sure familiarit$. ,ut a cop$ of this -.orm: Objections Checklist/ in $our trial
notebook behind "ab '0* -Law./
WARNING. 1ost objections are not allowed to be made during depositions. .or the much
shorter list of valid or invalid objections during depositions refer to the discussion in 23).4 of
this book.
.ollowing this alphabetical listing is a short discussion* in order* of each of the objections* in the
format of 5'6 a form statement of the individual objection* 576 a short discussion for +uick
reference* and then 546 a form response to the objection.
The asic T!o "o#en$ %uick al&habetical list for reference an' refresh(ent.
'. 8dmitted.
7. 8rgumentative.
4. 8ssumes facts not in evidence.
3. !est evidence rule.
(. !e$ond the scope of direct / cross / redirect examination.
0. Completeness.
9. Compound +uestion / double +uestion.
:. Confusing / vague / ambiguous.
;. Counsel is testif$ing.
'). .orm.
''. .oundation.
'7. <earsa$ 5rules :)'* :)7* :)4 and :)36.
'4. =mproper impeachment.
'3. =ncompetent.
'(. Lack of personal knowledge.
'0. Leading.
'9. 1isstates evidence / mis+uotes witness / improper characteri%ation of evidence.
':. #arrative.
';. Opinion 5rules 9)' and 9)76.
7). ,retrial ruling.
7'. ,rivileged communication.
77. ,ublic polic$.
74. >ule 3)4 5undue waste of time or undue prejudice/immaterial/irrelevant/ repetitive /
asked and answered / cumulative / surprise6.
73. &peculative.
A'(itte'.
-O!?EC"=O#: @our <onor* the matter alread$ has been admitted b$ a stipulation which is in the
record Aor alread$ has been established b$ the courtBs orderC. Dnder >ule 3)4 we do not need to
waste time on something that does not have to be decided./
E=&CD&&=O#: =f a matter has been admitted* it does not need to be the subject of an$ testimon$
or evidence to be considered as true. "he mechanics of getting the item considered b$ the trier of
fact depends on whether it is a bench or jur$ trial. =f the trial is to the court* simpl$ draw the
judgeBs attention to the admission as being a part of the record in the case. =f the trial is to the
jur$* formall$ move the court to instruct the jur$ that the fact is to be taken as being a part of the
evidence.
&ometimes a part$ ma$ wish to avoid having evidence with a strong emotional appeal brought
before the jur$ and ma$ agree to a fact to avoid the troubling evidence. "hus* for example* a
defendant driver might admit that he was under the influence of intoxicating beverages to avoid
the jur$ viewing a police videotape showing his ED= arrest and his woeful condition or his
combativeness at the scene. Once having admitted the fact* the part$ will want to object to
evidence of the fact to prevent the emphasis of the fact or the emotional component of the
evidence of the fact.
"he objection that -it alread$ has been admitted/ is not a valid objection in itself. Dnder .ederal
>ule 3)7 all relevant evidence is admissible* even though it is undisputed. "he objection of
-admitted/ is correctl$ an objection under >ule 3)4 for the court to exclude relevant testimon$
or exhibits as needlessl$ cumulative and therefore as a waste of time. >ule 3)4 should be
mentioned if $ou are doing the objecting.
-"he fact to which the evidence is directed need not be in dispute. Fhile situations will arise
which call for the exclusion of evidence offered to prove a point conceded b$ the opponent* the
ruling should be made on the basis of such considerations as waste of time and undue prejudice
5see >ule 3)46* rather than under an$ general re+uirement that evidence is admissible onl$ if
directed to matters in dispute./
8dvisor$ CommitteeBs #otes on .ed. >ules Evid.* >ule 3)'.
=f $our adversar$ is making the -admitted/ objection* show the judge the following language
from United States v. Grassi:
-=n Parr v. United States* 7(( ..7d :0* ::* cert. denied* 4(: D.&. :73 5';(:6* we held that* as a
general rule* a part$ ma$ not preclude his adversar$Bs proof b$ an admission or offer to
stipulate./ ... 8 piece of evidence can have probative value even in the event of an offer to
stipulate to the issue on which the evidence is offered. 8 cold stipulation can deprive a part$ -of
the legitimate moral force of his evidence*BB ; Wigmore on Evidence 27(;' at (:; 54rd ed. ';3)6*
and can never full$ substitute for tangible* ph$sical evidence or the testimon$ of witnesses. =n
most cases* a part$ has the right -to present to the jur$ a picture of the events relied upon.BB Parr,
supra* 7(( ..7d at ::./
United States v. Grassi* 0)7 ..7d '';7 5(th Cir. ';9;6* vacated and remanded on other grounds*
33: D.&. ;)7 5';:)6.
>E&,O#&E: -@our <onor* under Evidence >ule 3)7* we have a right to present undisputed
evidence* even though adverse counsel does not want it in the case. Eoes the Court wish us to
approach the bench and show the court an excellent citation on the pointG/
Ar)u(entati*e.
-O!?EC"=O#: @our <onor* the +uestion is argumentativeH counsel is arguing with the witness
instead of asking for facts./
E=&CD&&=O#: 8rgumentative +uestions* when directed to an adverse witness* fre+uentl$ are not
recogni%ed b$ counsel or even the court. =f the same +uestion were directed to the examinerBs
friendl$ witness* it would be recogni%ed as leading and not calling for an$ facts from the witness.
8ddressed to an adverse witness* a +uestion is argumentative if it does not call for new facts* and
merel$ asks the witness to agree or disagree with a conclusion drawn b$ the examiner from
proved or assumed facts. &ee attfeld v. !ester* 47 #F7d 7;' 51inn. ';3:6. 8rgumentative
+uestions ma$ be proper if directed to an adverse part$* as an attempt to secure a judicial
admission contrar$ to the position of the part$. 8rgumentative +uestions also ma$ be proper if an
opinion has been given b$ the witness. "hen counsel ma$ properl$ state different facts than those
used b$ the witness in forming his/her opinion and in+uire if a different conclusionar$ opinion is
correct. 8llowance of argumentative objections* like all the other objections within the rubric of
-objection as to form/ 5which see* below6 is within the discretion of the trial judge.
>E&,O#&E: -@our <onor* = am testing the testimon$ of this witness./
Assu(es fact not in e*i'ence.
-O!?EC"=O#: @our <onor* the +uestion assumes facts not in evidence. Fe are here to ask for
facts from the witnesses* not assume that a fact exists./
E=&CD&&=O#: "he facts which are not in evidence cannot be used as the basis of a +uestion*
unless the court allows the +uestion -subject to later connecting up./ 8 court in the interest of
good administration and usage of time ma$ allow the missing facts to be brought in later.
>E&,O#&E: -@our <onor* we will have those facts later in the case* but this witness is here now
and it is the best use of time to ask that +uestion now./
est e*i'ence rule.
-O!?EC"=O#: @our <onor* this is not the best evidence. "he original document is the best
evidence./
E=&CD&&=O#: "here are three aspects to the -!est Evidence >ule./ "he first aspect is the one
most often invoked toda$: ordinaril$ a nonIexpert witness is not allowed to describe what is in a
document without the document itself being introduced into evidence. ,ut the document into
evidence first* then have the la$ witness talk about what is in it.
"he second aspect is re+uiring the original document to be introduced into evidence instead of a
cop$ J if the original is available. "he original is not available if a search for it did not find the
original* or if it is in the hands of an adversar$* or it is be$ond the jurisdiction of the court to
subpoena. >e+uiring the original document 5the best evidence6 to be available for examination
insures that nothing has been altered in an$ wa$. "he best evidence rule arose during the past
centuries when a cop$ was made b$ hand* often b$ persons not trained to be careful and often
not exact as to each word. ,arties and courts sensibl$ assumed that* if the original was not
produced* there was a good chance of a scrivenerBs error 5or fraud if the cop$ were handwritten
b$ a part$ to the litigation6. #ow that -cop$/ usuall$ means a photocop$* or an automatic
printout of electronic data entries* the chance of a cop$ containing a mechanical error is slight.
Courts are reluctant to re+uire needless effort to find the original if there is no dispute about the
fairness and ade+uac$ of a photocop$. "he court has discretion to allow a cop$ to be used instead
of the original.
.ed. >ules Evid.* >ule '))'* '))7* '))4* and similar state evidence code provisions allow the
use of mechanicall$ produced duplicates unless a part$ has raised a genuine +uestion about the
accurac$ of the cop$ or can show that its use would be unfair. <owever* there is alwa$s a danger
of a judge re+uiring the original of a document* so $ou must be read$ to produce originals of an$
documents involved in $our case or to produce evidence of wh$ $ou canBt.
"he third aspect of the best evidence rule is that in past centuries* compilations of documents
onl$ involved a few documents. <ence* at one time* the original documents had to be offered
into evidence* not someoneBs summari%ation of the decrements. "oda$* compilations or
summaries of voluminous records 5t$pical in printouts of individual entries of electronic entries
in the format of a report of all the entries6 present the problem of perhaps thousands of
documents or data entries to be considered b$ the trier of fact. 1odern evidence law has solved
the problem b$ providing that:
"he contents of voluminous writings* recordings* or photographs which cannot convenientl$ be
examined in court ma$ be presented in the form of a chart* summar$* or calculation. "he
originals* or duplicates* shall be made available for examination or cop$ing* or both* b$ other
parties at a reasonable time and place. "he court ma$ order that the$ be produced in court.
.ed. >ules Evid.* >ule '))0.
>E&,O#&E: Eependent on the aspect of the !est Evidence rule involved in the objection: AOffer
the document into evidenceC A-@our <onor* this is admissible as a cop$ under Evidence >ule
'))4/C A-@our <onor* this is a summar$ admissible under Evidence >ule '))0/C.
!e$ond the scope of 5direct* cross* redirect6 examination.
-O!?EC"=O#: @our <onor* this +uestion is be$ond the scope of the direct examination 5crossI
examination6./
E=&CD&&=O#: 8lthough the court has discretion to allow it* ordinaril$ the scope of a crossI
examination cannot exceed the scope of the direct examination. Likewise* redirect examination
ordinaril$ cannot exceed the scope of the crossIexamination. "he purpose for restricting an
examination to the scope of the opponentBs last previous examination is to prevent an everI
enlarging and neverIending scope of testimon$.
"he dictionar$ meaning of -scope/ is -the area covered b$ a given activit$ or subject./
"herefore* how $ou define the -scope of the examination/ is important in making the objection
or in responding to it. .or example* an objector ma$ be better off to define the scope of direct
examination as -events on ?anuar$ 0th*/ instead of -wh$ and how the accident happened./
=n the testimon$ of an expert* the scope of what is within the direct examination is not limited to
the exact items the expert talked about. !ecause the expert is an expert in an entire field and is
there to explain items in the field of endeavor* the scope of direct is usuall$ understood to be
ever$thing in the expertBs field of knowledge that bears on the case in issue. "hus the crossI
examination can delve into other aspects of the case* including asking +uestions to confirm parts
of the examinerBs own case.
>E&,O#&E: -@our <onor* this is within the scope of the direct examination 5crossIexamination6
because AexplainC./
Co(&leteness.
-O!?EC"=O#: @our <onor* we object to counsel onl$ introducing part of the writing
5conversation/act/declaration6. Dnder the evidence rule providing for completeness* we move to
introduce additional parts now.
E=&CD&&=O#:
Fhen a writing or recorded statement or part thereof is introduced b$ a part$* an adverse part$
ma$ re+uire the introduction at that time of an$ other part or an$ other writing or recorded
statement which ought in fairness to be considered contemporaneousl$ with it.
.ed. >ules Evid.* >ule ')0. AEmphasis supplied.C
>ule ')0 is an expression of what Figmore termed -the rules of completeness./ K== Wigmore on
Evidence 7);3* et se+. 54d ed. ';3)6. "he rule is based on two considerations. "he first is the
misleading impression created b$ taking matters out of context. "he second is the inade+uac$ of
repairing an adverse jur$ impression if dela$ed to a point later in the trial. &ee c"ormick on
Evidence 2(0. 1an$ states have rules similar to the federal >ule ')0. "he longer "exas rule is
given below for an example.
Fhen part of an act* declaration* conversation* writing or recorded statement is given in evidence
b$ one part$* the whole on the same subject ma$ be in+uired into b$ the other* and an$ other act*
declaration* writing or recorded statement which is necessar$ to make it full$ understood or to
explain the same ma$ also be given in evidence* as when a letter is read* all letters on the same
subject between the same parties ma$ be given. Friting or recorded statement includes
depositions.
"exas >ules Evid.* >ule ')9.
"his is a good example of how federal and state rules differ. #otice the federal rule is limited to
writings and recorded statements and does not appl$ to conversationsH the "exas rule* given as an
example above* goes on to add ph$sical acts* oral declarations b$ one person* and conversations.
Cf.* innesota #ules Evid.* >ule ')9* Comment 5-the rule is not intended to appl$ to
conversations/6. "he "exas rule adds provisions that prevents arguments 5which $ou might want
to make in other states6 about* whether a deposition is a writing or record statement or something
elseH or* whether a letter written ') $ears earlier b$ the opposite part$ to the correspondence can
be introduced.
"he federal rule* but not all state rules* makes it mandator$ for the trial court to allow objecting
counsel to put their portions into evidence at the same time. "he federal rule of completeness
allows $ou to interrupt the adversar$Bs presentation of evidence and introduce part of $our own.
=n practice* this rule of completeness arises most often when an opposing attorne$ reads part of a
deposition into evidence* or introduces onl$ portions of a document. "he rule of completeness
does not in an$ wa$ re+uire $ou to introduce the other portions when $our opposition doesH
instead $ou ma$ chose to develop the matter on crossIexamination or as part of $our own case*
which ma$ well be preferable.
>E&,O#&E: -@our <onor* of course when = finish reading this into the record* counsel can read
whatever else she feels relevant to add./
Co(&oun' question+ 'ouble question.
-O!?EC"=O#: @our <onor* this is a double +uestion. =f the witness answers* it will be confusing
as to which part of the +uestion is being answered./
E=&CD&&=O#: 8 compound +uestion asks two or more separate +uestions within the framework
of a single +uestion. "he objection is generall$ reserved for situations where* if the witness
answers -$es/ or -no*/ it will be confusing as to which part of the +uestion is being answered. =t
is one of those objections that falls within the rubric of the -objection as to form/ 5discussed
below6.
>E&,O#&E: &eparate the +uestion into the two parts.
Confusin) , *a)ue , (islea'in) , a(bi)uous.
-O!?EC"=O#: @our <onor* the +uestion is ambiguous. "he witness ma$ not know with
certaint$ what is being asked* and we ma$ not know with certaint$ what the answer tells us./
E=&CD&&=O#: Confusing / vague / misleading / ambiguous are all words that conve$ the
objection that the +uestion is not posed in a clear and precise manner so that the witness knows
with certaint$ what information is being sought. "he objection appeals to the courtBs discretion in
providing a fair trial without witnesses being confused.
>E&,O#&E: -@our honor* = can restate that +uestion./
Counsel is testif$ing.
-O!?EC"=O#: @our <onor* counsel is tr$ing to testif$ himself* instead of having the witness do
it./
E=&CD&&=O#: "he objection that -Counsel is testif$ing/ is heard so often* that we include it in
this list of -the basic two do%en./ <owever* the objection usuall$ could just as well be phrased as
-leading/ or -argumentative/ or -assumes facts not in evidence./ "he objection is to parts of the
+uestion which contain facts or opinions not in evidence.
>E&,O#&E: Eepending on the t$pe of +uestion* respond* as $ou would to an objection for
-leading/ or -argumentative/ or -assumes facts not in evidence./
-or(.
O!?EC"=O#: -@our <onor* we object to the form of the +uestion./
E=&CD&&=O#: 8n objection that the -form/ is improper is a generali%ation* which includes
diverse problems 5each of which is a specific objection6. "he objection is heard a great deal* and
honored b$ courts +uite often when the$ see the specific problem. Other times* the court does not
rule on the objection* but simpl$ directs adverse counsel to ->ephrase $our +uestion* counsel./
"he objection of -form/ should instead be a specific objection that the +uestion:
=s a double +uestion.
=s misleading or ambiguous 5to either witness or jur$6.
=s argumentative.
=s prejudicial or abusive in its insinuations.
=s leading.
=s repetitious.
8ssumes facts not in the record.
.ails to include relevant facts found in the record.
Calls for a legal conclusion.
Calls for mere speculation.
Calls for an opinion.
Calls for a narrative.
>E&,O#&E: -@our <onor* ma$ counsel be re+uested to inform the court in what specific is the
form of m$ +uestion insufficient* so that = can remed$ an$ problemG/ 5"hen* when informed*
restate the +uestion to eliminate the bad form.6
WARNING. ?ust sa$ing -Objection to the form/ or -Objection to the foundation/ is a la%$
indefinite generali%ation* which includes ever$ possible wa$ the form or foundation is wrong.
"here are dangers in making the general objection of -form/ or -foundation./ &ee the discussion
at -&tate $our specific grounds briefl$/ in 2(7.7 of this text.
-oun'ation.
-O!?EC"=O#: @our <onor* we object to the lack of foundation because Ae.g.* there is no
showing of the witnessBs time and place of observation of the facts called forC./
E=&CD&&=O#: Evidence is competent if the proof that is being offered meets certain traditional
re+uirements of reliabilit$. "he preliminar$ showing that the evidence meets those tests is called
the foundational evidence. =f there is no objection made to the lack of foundation before the
testimon$ is received* the objection is waived. =f an objection to the foundation if not madeH the
testimon$ cannot later be the subject of a motion to strike.
"he objecting attorne$ must identif$ what is necessar$ to correct the lack of foundation for the
deponent to answer. =f the +uestioning attorne$ asks what is wrong with the foundation* then the
objector either must provide specific details of what is missing in the foundation or else be ruled
to have waived the objection b$ making a senseless objection. 5-8n objection to foundation is
futile unless it is sufficientl$ specific to afford the opposing part$ opportunit$ to cure it./ United
States v. ichaels* 970 ..7d '4)9* '4'3 5:th Cir. ';:36.6
=f the witness is a la$person* the usual foundation objection is a lack of showing that the witness
has personal knowledge of the facts which the +uestion seeks. =f the witness is an expert* the
usual foundation objection is a lack of showing that the expert is +ualified to give the opinion
sought.
>E&,O#&E: -@our <onor* ma$ counsel be re+uested to inform the court in what specific is the
foundation insufficient* so that = can remed$ an$ problemG/ 5"hen* when informed* restate the
+uestion or otherwise provide the specific missing part of the foundation.6
.earsay /rules 0123 0143 0153 an' 0167.
-O!?EC"=O#: @our <onor* this calls for hearsa$./
E=&CD&&=O#: <earsa$ is not admissible unless it comes within one of the man$ exceptions.
<earsa$ is evidence and can be used b$ itself to support a verdict if it is received without
objection.
.ed. >ules Evid.* >ules :)'* :)4* and :)3 5or the e+uivalent state rules6 must be in $our trial
notebook or otherwise available to $ou during trial. "he exceptions to the hearsa$ objection are
so important J and needed so often during trial J we are going to give $ou an outline in this
+uick reference checklist.
WARNING. "he following is a partial outline 5not the full text6 of the .ederal hearsa$ rule. "his
trial notebook outline is here onl$ to refresh $our memor$ when the full applicable state or
federal rule is not available to $ou.
>ule :)'. -<earsa$/ is a statement* other than one made b$ the declarant while testif$ing at the
trial or hearing* offered in evidence to prove the truth of the matter asserted.
8 statement is not hearsay if J
5'6 "he declarant testifies at the trial or hearing and is subject to crossIexamination
concerning the statement* and the statement is
586 =nconsistent with the declarantBs testimon$ and was given under oathH
5!6 Consistent with the declarantBs testimon$ and is offered to rebut an expressed
or implied charge against the declarant of recent fabrication or improper influence
or motiveH
5C6 One of identification of a person made after perceiving the person.
576 "he statement is offered against a part$ an' is a statement
586 1ade personall$ b$ the part$H
5!6 Of which the part$ has manifested an adoption or belief in its truthH
5C6 !$ a person authori%ed b$ the part$ to make the statementH
5E6 !$ the part$Bs agent or servant concerning a matter within the scope of the
agenc$ or emplo$ment* made during the existence of the relationshipH
5E6 !$ a coIconspirator of a part$.
>ule :)4. "he following are not excluded b$ the hearsa$ rule* even though the declarant is
available as a witness.
5'6 ,resent sense impression. 8 statement describing or explaining an event or condition*
made while the declarant was perceiving the event or condition* or immediatel$
thereafter.
576 Excited utterance. 8 statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused b$ the event or condition.
546 1ental* emotional* or ph$sical condition. 8 statement of the declarantBs then existing
state of mind* emotion* sensation* or ph$sical condition 5such as intent* plan* motive*
design* mental feeling* pain and bodil$ health6* but not including a statement of memor$
or belief to prove the fact remembered or believed.
536 1ade for medical treatment. &tatements made for purposes of medical diagnosis or
treatment and describing medical histor$* or past or present s$mptoms* pain* or
sensations* or the inception or general character of the cause or external source thereof
insofar as reasonabl$ pertinent to diagnosis or treatment.
5(6 >ecorded recollection. 8 memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to enable the witness to
testif$ full$ and accuratel$* shown to have been made or adopted b$ the witness when the
matter was fresh in the witnessB memor$ and to reflect that knowledge correctl$. =f
admitted* the memorandum or record ma$ be read into evidence but ma$ not itself be
received as an exhibit unless offered b$ an adverse part$.
506 >ecords of regularl$ conducted business activit$. 8 memorandum* report* record* or
data compilation* of acts* events* conditions* opinions* or diagnoses* made at or near the
time b$* or from information transmitted b$* a person with knowledge* if kept in the
course of a regularl$ conducted business activit$* and if it was the regular practice of that
business activit$ to make the memorandum* report* record* or data compilation* all as
shown b$ the testimon$ of the custodian or other +ualified witness* or b$ certification
that complies with >ule ;)75''6* >ule ;)75'76 or a statute permitting certification* unless
the source of information or the method or circumstances of preparation indicate a lack of
trustworthiness.
596 8bsence of entr$ in records kept in regularl$ conducted business activit$* to prove the
nonoccurrence or nonexistence of the matter.
5:6 ,ublic records and reports. >ecords* reports* statements* or data compilations of
public offices or agencies* setting forth 586 the activities of the office or agenc$* or 5!6
matters observed pursuant to dut$ imposed b$ law and as to which matters there was a
dut$ to report* excluding* however* in criminal cases matters observed b$ police officers
and other law enforcement personnel* or 5C6 in civil actions and proceedings* factual
findings resulting from an investigation made pursuant to authorit$ granted b$ law unless
the sources of information or other circumstances indicate lack of trustworthiness.
5;6 >ecords of vital statistics. >ecords of births* deaths* or marriages* if the report
thereof was made to a public office pursuant to re+uirements of law.
5')6 8bsence of public record or entr$ b$ evidence in the form of a certification in
accordance with >ule ;)7* or testimon$* that diligent search failed to disclose the record*
report* statement* or data compilation* or entr$.
5''6 5'76 and 5'46 .amil$ .acts. >eligious organi%ationBs statements of personal or famil$
histor$* contained in a regularl$ kept record. 1arriage* baptismal* and similar certificates
issued at the time of the act or within a reasonable time thereafter. .amil$ records of fact
concerning personal or famil$ histor$ contained in famil$ !ibles* genealogies* charts*
engravings on rings* inscriptions on famil$ portraits* engravings on urns* cr$pts* or
tombstones* or the like.
5'36 >ecords of documents affecting an interest in propert$* if the record is a record of a
public office.
5'(6 &tatements in documents affecting an interest in propert$. 8 statement contained in a
document purporting to establish or affect an interest in propert$ if the matter stated was
relevant to the purposes of the document* unless dealings with the propert$ since the
document was made have been inconsistent with the truth of the statement or the purport
of the document.
5'06 &tatements in ancient documents* to wit: a document in existence 7) $ears or more*
the authenticit$ of which is established.
5'96 1arket reports* commercial publications. 1arket +uotations* tabulations* lists*
directories* or other published compilations* generall$ used and relied upon b$ the public
or b$ persons in particular occupations.
5':6 Learned treatises. "o the extent called to the attention of an expert witness upon
crossIexamination or relied upon b$ the expert witness in direct examination* statements
contained in published treatises* periodicals* or pamphlets on a subject of science or art*
established as a reliable authorit$ b$ the testimon$ or admission of the witness or b$
other expert testimon$ or b$ judicial notice. =f admitted* the statements ma$ be read into
evidence but ma$ not be received as exhibits.
5';6 >eputation concerning personal or famil$ histor$ among members of a personBs
famil$* or among a personBs associates* or in the communit$* concerning a personBs birth*
adoption* marriage* divorce* death* legitimac$* relationship b$ blood* adoption* or
marriage* ancestr$* or other similar fact of a personBs personal or famil$ histor$.
57)6 >eputation concerning boundaries of or customs affecting lands in the communit$H
or reputation as to events of general histor$ important to the communit$ or state or nation
in which located.
57'6 >eputation as to character. >eputation of a personBs character among associates or
in the communit$.
5776 ?udgment of previous conviction. Evidence of a final judgment entered after a trial
or upon a plea of guilt$ 5but not upon a plea of nolo contendere6* adjudging a person
guilt$ of a crime punishable b$ death or imprisonment in excess of one $ear* to prove an$
fact essential to sustain the judgment.
5746 ?udgments as to personal* famil$* or general histor$* or boundaries.
>ule :)3 586. 8 witness is unavailable if the declarant:
5'6 =s exempted b$ ruling of the court on the ground of privilege from testif$ingH
576 >efuses to testif$ despite an order of the court to do soH
546 "estifies to a lack of memor$ of the subject matter of the declarantBs statementH
536 =s unable to be present due to death or ph$sical or mental illness or infirmit$H
5(6 =s absent from the hearing and the proponent of a statement has been unable to
procure the declarantBs attendance b$ process or other reasonable means.
>ule :)3 5!6. "he following are not excluded b$ the hearsa$ rule* even though the declarant is
available as a witness.
5'6 .ormer testimon$. "estimon$ given as a witness at another hearing of the same or a
different proceeding* or in a deposition taken in compliance with law in the course of the
same or another proceeding* if the part$ against whom the testimon$ is now offered* or*
in a civil action or proceeding* a predecessor in interest* had an opportunit$ and similar
motive to develop the testimon$ b$ direct* cross* or redirect examination.
576 &tatement under belief of impending death.
546 &tatement against interest. 8 statement which was at the time of its making so far
contrar$ to the declarantBs pecuniar$ or proprietar$ interest* or so far tended to subject the
declarant to civil or criminal liabilit$* or to render invalid a claim b$ the declarant against
another* that a reasonable person in the declarantBs position would not have made the
statement unless believing it to be true.
536 &tatement of personal or famil$ histor$ of the declarantBs own histor$ or a statement
concerning the personal or famil$ histor$ of another person* if the declarant was so
intimatel$ associated with the otherBs famil$ as to be likel$ to have accurate information.
<earsa$ is an objection $ou are bound to hear at least once in ever$ trial. >efresh $our memor$
of the list of exceptions before the trial.
>E&,O#&E: -@our <onor* this is an exception to the hearsa$ rule* under Evidence >ule AciteC./
=mproper impeachment.
-O!?EC"=O#: @our <onor* this is outside the boundar$ of proper impeachment./
E=&CD&&=O#: "he evidence rules generall$ onl$ authori%e the following methods of
impeachment:
'. ,oint out contradictor$ evidence or prior inconsistent statementsH
7. &how bias or prejudice 5paid witness* stands to gain b$ verdict one wa$* friend* or rival of
part$6H
4. &how reputation for poor character for honest$H
3. &how conviction of a crime that involved dishonest$ or false statement or imprisonment
for more than one $earH
(. &how poor memor$* or lack of ph$sical or mental abilit$ to observe* remember* or
recountH
0. On crossIexamination* ask the witness to agree that he committed specific instances of
past conduct bearing on the witnessBs credibilit$ for truthfulness. Except for criminal
convictions* the witnessBs answer is conclusive* and extrinsic evidence is not allowed to
contradict what the witness sa$s concerning his own conduct.
>ead .ed. >. Evid.* >ules 3)3* 0)9* 0): and 0);* or $our e+uivalent state rules of evidence* for
the exact rules* which in each jurisdiction have defined limitations on t$pes and use of
impeachment material. -@et the trial court has discretion to exclude impeachment evidence*
including a prior inconsistent statement* if it is collateral* cumulative* confusing* or misleading./
People v. $ouglas* () Cal. 4d 30:* at ();* 9:: ,.7d 03) 5';;)6.
>E&,O#&E: -@our <onor* = am asking items which bear upon the witnessBs credibilit$./
=ncompetent.
-O!?EC"=O#: "he witness is incompetent because..../ 5"he exhibit is incompetent because....6
E=&CD&&=O#: "he term -competenc$/ refers to the minimal +ualifications someone must have
to be a witness. =n reference to an exhibit* the term -competenc$/ refers to the minimal
foundation that ph$sical items must have to be an exhibit. .or both a person and an exhibit*
-competenc$/ also refers to a lack of an$ statutor$ or other legal bar based on public polic$.
=n order to be a witness* a person other than an expert 5experts are a special case discussed later
in the text6* must meet six basic re+uirements:
'. "ake some kind of oath to tell the truth.
7. <ave perceived something relevant to the case. 8 la$ witness ma$ onl$ testif$ to matters
about which the witness has personal knowledge. .ed. >. Evid.* >ule 0)7 sa$s -a witness
ma$ not testif$ to a matter unless evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter./ "hat means the attorne$ asking
the +uestions should first establish b$ preliminar$ +uestions that the person has actual
personal knowledge of something relevant.
4. !e able to remember what he or she perceived.
3. !e able to communicate in some sensible wa$.
(. #ot be dis+ualified b$ some statutor$ or other legal bar based on public polic$. &ee
discussion* below* regarding the public polic$ objections.
@oung children must be shown to be capable of understanding the oath and communicating in
some sensible wa$. "he usual rule is that a child is competent if the child can recollect and
narrate the facts and has a moral sense of obligation to tell the truth. "he judge and attorne$s
have to +uestion the child to determine the communication skills of the child and also +uestion to
determine if the child understands the difference between true and false* and will tell the truth.
>E&,O#&E: -@our <onor* Arespond to asserted specific lackC./
8ack of &ersonal kno!le')e.
-O!?EC"=O#: @our <onor* there is no showing of personal knowledge b$ the witness./
E=&CD&&=O#:
8 AnonIexpertC witness ma$ not testif$ to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence to prove
personal knowledge ma$* but need not* consist of the testimon$ of the witness.
.ed. >ules Evid.* >ule 0)7.
Fith some +ualifications* experts can testif$ to facts the$ used in their process of building an
opinion* even if the$ do not have personal knowledge of the facts supporting the opinion. &ee
.ed. >ules Evid.* >ule 9)4.
>E&,O#&E: AEstablish b$ preliminar$ +uestions that the person has actual personal knowledge.C
8ea'in).
-O!?EC"=O#: @our <onor* counsel is leading and coaching the witness./
E=&CD&&=O#: -Leading/ is the legal ritual word for the benefit of the judge and appellate court.
-Coaching/ is the word $ou might want to add to $our statement of the objection in front of a
jur$* so the jur$ understands wh$ $ou are preventing what ma$ to them appear to be a reasonable
+uestion.
"he problem with a leading +uestion is that the +uestion itself suggests the answer that the
examiner wants to have. 8 leading +uestion often* but not alwa$s* can be answered with a -$es./
"o encourage witnesses telling facts in their own wa$* leading +uestions are not allowed on
direct examination when an attorne$ is examining his/her own friendl$ or neutral witness. Fhen
an attorne$ has called a hostile witness 5which ma$ be someone other than the adverse part$6
leading +uestions are allowed in direct examination. Leading +uestions are alwa$s proper in
crossIexaminations.
.ederal >. Evid.* >ule 0''5c6 provides that -leading +uestions should not be used on the direct
examination of a witness except as ma$ be necessar$ to develop the testimon$ of the witness./
Leading +uestions are most dangerous involving matters of dispute* and the danger disappears if
there is no controvers$. 8ccordingl$* leading +uestions are proper when the testimon$ sought is
merel$ preliminar$ to disputed matter. Lestico v. %uehner, 7:4 #.F. '77 5';4;6. "he times that
leading +uestions ma$ be -necessar$ to develop/ the direct testimon$ of the witness include not
onl$ preliminar$ matters* but also when +uestions are needed to switch topics or direct the
attention of a witness to a specific event* or leading +uestions are needed for soft conversational
approaches if the witness is a child or is emotionall$ disturbed* or leading +uestions are needed
because the witnessBs memor$ needs to be refreshed.
"he allowance of leading +uestions* or +uestions which assume facts not $et proven* is
discretionar$ with the trial judge. Dnless there appears an abuse of discretion* the appellant court
will not reverse the trial courtBs ruling.
>E&,O#&E: -@our <onor* this +uestion is onl$ preliminar$ to move us +uickl$ to the matters in
issue./ O>* -@our <onor* the witness is a hostile witness./
9isstates e*i'ence , (isquotes !itness , i(&ro&er characteri#ation of the e*i'ence.
-O!?EC"=O#: @our <onor* counsel is misstating the evidence./
E=&CD&&=O#: "he trial court has inherent power to administer the trial so that it is fair. 8lmost
universall$* to the -misstating the evidence/ objection* the court will respond with: -"he jur$ has
heard the evidence and can determine what the evidence was./ "hen* the court will overrule the
objection. "hat reaction of the judge takes the judge out of her problem of having to judge
accurac$ b$ the standard of her own memor$. =t is rare that the judgeBs discretion on this
objection will be disfavored b$ a reviewing court.
=f the judge is ;;L not likel$ to rule in $our favor* and the judgeBs ruling will not make an$
difference on an appeal* wh$ make the objectionG "he value of making this objection is to both
wake up the witness to pa$ attention and not mindlessl$ answer the +uestion* and also to call the
attention of the jur$ to the fact that the earlier testimon$ was different that counsel states in her
+uestion.
>E&,O#&E: -@our <onor* it is not a misstatement* and certainl$ the court and jur$ have heard
the evidence./
Narrati*e.
-O!?EC"=O#: @our <onor* the +uestion calls for a long narrative. =t can produce irrelevant or
otherwise inadmissible testimon$ before the court can receive an objection and rule on it./
E=&CD&&=O#: =n the evidence presentation mode used in this countr$* the normal form 5of
+uestioning followed b$ direct answers to the +uestions6 is designed to allow the adverse counsel
the opportunit$ to interpose an objection before the witness directl$ answers the +uestion in the
hearing of the jur$. "hus* an improper item never is heard b$ the jur$* because there is a ruling
before the witness speaks. Fhen the witness is asked to give a long narrative answer* an
improper item can be conve$ed to the jur$ before there is an opportunit$ to object or the court to
rule. "imel$ objections to volunteered inadmissable testimon$ contained within what otherwise
is proper description of events are needed if the exclusionar$ s$stem of evidence is to be
preserved. 8fter inadmissable testimon$ is heard* the problem is tr$ing to effectivel$ cause the
jur$ to -unring the bell./ "he courtBs instruction to ignore what the$ just heard is ps$chologicall$
ineffective.
"acticall$* objecting to a long narrative b$ an expert witness also has the advantage of preventing
an expert witness or other verball$ gifted witness from captivating the attention of the audience
with what could be a +uarterIhour unbroken polished show.
>E&,O#&E: -@our <onor* the narrative simpl$ is going to preliminar$ matters which = thought
we all would like to hear before we get to other +uestions./ O>* -@our <onor* this simpl$ asks
for a short description of the scene as a unified whole* before we get to detailed aspects./ O>*
-@our <onor* this simpl$ asks for a short description of the science and technical maters
involved./
O&inion /rules :12 an' :147.
-O!?EC"=O#: @our <onor* the +uestion calls for an opinion 5conclusion6* and the witness is not
+ualified to give the opinion./
E=&CD&&=O#: =n regard to a la$ person 5nonIexpert6* this objection is made to the competence
of a la$ person giving an opinion* and a foundation to turn the witness into an expert is not
possible. =n regard to an expert* this objection is made to the competence of the expert because of
inabilit$ of the expert to pass the gatekeeping re+uirements for experts.
8ay&erson;s o&inion.
#onIexpert witnesses are to give facts. Menerall$* it is the province of the judge or jur$ to make
the conclusions to be drawn from those facts. .ed >ules Evid.* >ule 9)':
O<INION TE=TI9ON> > 8A> WITNE==E=. =f the witness is not testif$ing as an expert*
the witnessB testimon$ in the form of opinions or inferences is limited to those opinions or
inferences which are 5a6 rationall$ based on the perception of the witness and 5b6 helpful to a
clear understanding of the witnessBs testimon$ or the determination of a fact in issue* and 5c6 not
based on scientific* technical or other speciali%ed knowledge within the scope of >ule 9)7.
&ome matters are within the normal range of knowledge or understanding of the ordinar$
la$person* but can best be reported b$ the la$person in terms of an opinion. -Conse+uentl$* a la$
witness ma$ testif$ that a person was NdrunkB or that a car was traveling Nfast.B/ "omment* >ule
9)'* &enn. #. Evidence. #onexpert witnesses have been allowed to give answers in the form of
opinions as to such things as ph$sical condition and appearance of health. See, 'offer v. Burd* 3;
#F7d 7:7 5#E ';('6H !ichols v. %luver* 749 #F 03) 5#E ';4'6 5wife re husbandBs injur$6.
Ouestions of ph$sical condition are sometimes mingled with +uestions of medical or legal
opinion so as to cause a court to keep the opinion out of evidence. See, 'uus v. #ingo* 4; #F7d
()( 5#E ';3;6 5whether plaintiff can do work he did before accident6. =f $ou have a problem
looming* check the 8L> annotations for material on admissibilit$ of la$ opinions. See, (0
8.L.>.4d (9(* admissi(ility of none)pert opinion testimony as to *eather conditionsH 00
8.L.>.7d ')3:* admissi(ility of opinion evidence as to point of impact or collision in motor
vehicle accident caseH 49 8.L.>.7d ;09* admissi(ility of opinion of none)pert o*ner as to value
of chattel.
=mportant in man$ cases is the common holding that owners of propert$ are entitled to give an
opinion to the value of their own propert$ even though the$ are not experts in valuation. Owners*
due to that ownership* are presumed to have special knowledge of the value of their own
propert$./ See, &okles and Son, +nc. v. id*estern +ndemnity "ompany, 0( Ohio &t 4d 07'
5';;76H and Evans v. Evans 5F. Ka. ';;96 5-we find that under >ule 9)' A';;3C of the Fest
Kirginia >ules of Evidence* the owner of destro$ed or damaged personal propert$ is +ualified to
give la$ testimon$ as to the value of the personal propert$ based on his or her personal
knowledge/6. 1ost courts have permitted the owner of a business to testif$ to the value or
projected profits of the business* without the necessit$ of +ualif$ing the witness as an accountant*
appraiser* or similar expert. See, Lightning Lu(e, +nc. v. Witco "orp.* 3 ..4d ''(4 54d Cir. ';;46
5no abuse of discretion in permitting the plaintiffBs owner to give la$ opinion testimon$ as to
damages* as it was based on his knowledge and participation in the da$ItoIda$ affairs of the
business6. !ut see cases like ,im-s 'ot Shot Serv. v. "ontinental W. +ns. "o., 4(4 #.F.7d 79;
5#.E. ';:36 holding that although the owner can testif$* the opinion ma$ be legall$ insufficient
to support a verdict if the value opinion is without an$ valid basis.
"he 5c6 part of the federal rule 9)' 5-and 5c6 not based on scientific* technical* or other
speciali%ed knowledge within the scope of >ule 9)7/6 was added when the federal courts
changed their rule 9)7. "he reason for the 9)' amendment was to prevent evasion of >ule 9)7
re+uirements b$ offering the opinions of experts as -la$ opinions/ rationall$ based on
perception. Cf.* United States v. $ulcio* #o. )3I'4:4: 5''th Cir. 1ar. :* 7))06. 5,rosecution
offered la$ opinion testimon$ from drug agents re modus operandi of narcotics dealers. !ecause
this testimon$ was founded on speciali%ed knowledge* it should have been offered as expert
testimon$* not la$ opinion.6
"he distinction in the federal courts regarding admissibilit$ of opinions used to be between la$
*itnesses and expert *itnesses. Fith the 7))) amendments to rules 9)' and 9)7* the scholarl$
legal distinction is now between la$ opinions and expert opinions. <owever* trial court anal$sis
still tends to be in terms of la$ versus expert witnesses. "herefore* in an$ trial courtroom* $ou
probabl$ will still be best served if $ou argue to the judge in terms of the witness classification of
la$ versus expert. Certainl$ in those states who did not adopt amendments similar to the federal
rules* the scholarl$ legal distinction regarding admissibilit$ of opinions is still in terms of la$
versus expert *itnesses* not la$ versus expert opinion.
E?&ert;s o&inion.
"he federal courts and some states have a >ule 9)7 that reads like this:
.ederal >ules Evid.* >ule 9)7. "E&"=1O#@ !@ EP,E>"&. =f scientific* technical* or other
speciali%ed knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue* a witness +ualified as an expert b$ knowledge* skill* experience* training* or
education* ma$ testif$ thereto in the form of an opinion or otherwise if 5'6 the testimon$ is based
upon sufficient facts or data* 576 the testimon$ is the product of reliable principles and methods*
and 546 the witness has applied the principles and methods reliabl$ to the facts of the case.
&ome states have the preI7))) version* which reads like this:
#orth Eakota >ules Evid. >DLE 9)7. "E&"=1O#@ !@ EP,E>"&. =f scientific* technical* or
other speciali%ed knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue* a witness +ualified as an expert b$ knowledge* skill* experience*
training* or education* ma$ testif$ thereto in the form of an opinion or otherwise.
"he difference between the two categories of rules reflects the different methods of approach to
admissibilit$ to expert opinions: either the preI7))) -.rye/ standards* still used in man$ states*
or the postI7))) -$au(ert/%umho tests*/ used in the federal courts and man$ states. !asicall$* in
the federal courts and those following a like standard* the court acts aggressivel$ as a gatekeeper*
making an initial decision as to whether the expertBs opinion is -good enough/ to be considered
b$ the jur$. "he courts following the preI7))) version act onl$ to determine if the witness has
expert knowledge 5not at the opinion6 and then allow the jur$ to make the decision whether the
opinion is -good enough/ to be reliable. .or a 7)Ipage* general anal$sis of how to get expert
witness opinions in or out see ***.(ucklin.org/$au(0&of".htm. .or a specific stateIb$Istate
anal$sis of expert testimon$ opinion admissibilit$ and objections thereto* = heartedl$ recommend
,eter #ordbergBs excellent site at ***.dau(ertonthe*e(.com, which contains current
information and incisive anal$sis.
>E&,O#&E to objection regarding la$person: -@our <onor* this is a matter which is within the
normal range of knowledge or understanding of an ordinar$ la$person* and can best be discussed
in terms of an opinion within >ule 9)'./
>E&,O#&E to objection regarding expert: -@our <onor* the witness is an expert and entitled to
draw a conclusion./
,reItrial ruling specificall$ barred asking the +uestion in open court.
-O!?EC"=O#: @our <onor* the CourtBs preItrial rulings have stated that this line of testimon$ is
improper and should onl$ be discussed in a further conference with the court in chambers./
E=&CD&&=O#: "oda$Bs pretrial motions practice trial have made preItrial evidence rulings have
conse+uences of major proportion. =t important that $ou understand completel$ the theor$ and
practice of atItrial objections regarding evidence which was the subject of a preItrial
admissibilit$ order. "he law is confusing* but from the perspective of -beenIthere* doneIthat*/
after some discussion* weBll give $ou three rules of thumb to follow.
=n the preItrial motion rulings* the court ma$ have made determinations of what evidence can* or
cannot* be admitted. 8lwa$s in some jurisdictions and sometimes in ever$ jurisdiction* these preI
trial rulings are not final. Often it is re+uired that at the trial itself the +uestion has to be asked* or
the exhibit offered* again b$ the counsel* even if the preItrial ruling was against him/her. =t is
onl$ the ruling at trial that is a final ruling. Fe cannot state this too strongl$. Error is not alwa$s
preserved b$ the granting or den$ing of a motion in limine. See, 'artford 1cc. 2 +ndem. "o. v.
c"ardell* 40; &.F.7d 44' 5"ex. ';046. 1an$ states insist that in ever$ situation* it is the
courtBs subse+uent exclusion or admission of relevant evidence J at the trial* not the pretrial
ruling on a motion for admission or exclusion J that is the final ruling. See, Schut3 v. Southern
Union Gas "o.* 0'9 &.F.7d 7;;* 4)4 5"ex. Civ. 8pp.J"$ler ';:'* no writ6. #ot onl$ is the
ruling at trial the onl$ final ruling* but if $ou have received an adverse preItrial ruling on
admissibilit$* if $ou fail to ask the +uestion* or offer the exhibit when $ou are in the trial* $ou
ma$ be deemed to have waived $our offer of evidenceQ "he theor$ of this twoIstage process
5preItrial ruling is preliminar$* final ruling is made onl$ during the trial itself6 is that the trial
court should have a chance during the actual trial to determine if at that point the trial court
wants to change its ruling.
"he law of the sundr$ states and federal circuits is +uite varied on the +uestion of whether a
losing part$ on an preItrial evidentiar$ ruling must renew an objection or offer of proof when the
evidence is or would be offered at trial* in order to preserve a claim of error on appeal. &ome
courts have held that a renewal at the time the evidence is to be offered at trial is alwa$s
re+uired. See, "ollins v. Wayne "orp.* 07' ..7d 999 5(th Cir. ';:)6. =n contrast* other courts have
held that renewal of the offer of proof or of the objection is not re+uired if 5'6 the issue decided
is of a t$pe which ma$ be decided as a final matter before the evidence is actuall$ offered* and
576 the trial judge stated her ruling was final and presentation of the evidence or objection to it
does not have to be presented at the trial for a final ruling. See, #osenfeld v. Bas4uiat, 9: ..4d :3
57d Cir. ';;06. "he problem with that latter formulation for the trial law$er* of course* is
guessing what the appeals court will decide is -a t$pe which ma$ be decided...*/ and what the
trial court -intended to rule..../ Fhat is a trial law$er to do to act in a -failIsafe/ mode during
trialG
Our answer is simplif$ $our life and follow three rules of thumb in all cases* in all courts.
'. =f $ou lost on $our preItrial attempt to have the evidence admitted R at trial alwa$s offer
the evidence again. 8t the #otes of the .ederal 8dvisor$ Committee to .ed. >ules Evid.*
>ule ')4* there is an extended discussion on whether $ou must offer the evidence again.
@ou ma$ not have to offer it again. !ut the safe wa$ to be sure $ou have preserved the
point on appeal is to offer it again at the trial.
WARNING. =f there is a court order of the sort discussed below 5following the "=,6* act in
compliance with the order J obe$ J follow the order and approach the bench first* at that point
in the trial.
7. =f $ou won on $our preItrial attempt to have the evidence excluded and there was not a
court order of the sort discussed below 5following the "=,6* $ou again must object on all
the grounds $ou used in winning at preI trial 5See, e.g.* lack of foundation* >ule 3)4
balancing* et cetera6. 8sk to approach the bench to revisit the matter if the court does not
want to immediatel$ grant $our objection.
4. =f $ou won on $our preItrial attempt to have the evidence excluded and there *as a court
order of the sort discussed below 5following the "=,6* object on the ground that the
CourtBs preItrial rulings have stated that this line of testimon$ or exhibit is improper. 8sk
to approach the bench. 1ake the same objections that $ou made in preItrial to the
evidence. "hen object to adverse counsel violating the courtBs order. "hen sit back and
enjo$ the courtBs attack on adverse counsel for ignoring the courtBs preI trial order.
TI<$ =n preItrial rulings* if $ou win* get the provision below inserted in the courtBs order.
"he best preItrial rulings b$ a trial judge add a provision that the +uestion should not be asked* or
exhibit offered* without first approaching the bench for the courtBs order at that point. "his
preserves the virginit$ of the jur$ from exposure to the potentiall$ inadmissable evidence* but
still allows the re+uired offer of evidence at that point in the trial. 8t the sidebar* or in chambers*
$ou must renew all of $our arguments or objections that $ou made preItrialH the judge will make
a final* inItrial* ruling on the record* outside the hearing of the jur$. "hen $ou go back to the jur$
and continue. 8t that point* back before the jur$* if the judge reverses himself and allows the
evidence* $ou do not have to object again 5assuming that during sidebar or chambers conference
before $ou returned to the jur$* $ou renewed $our objection and were definitel$ overruled6.
&ection '9.7 contains a form of order* for plaintiffs* for $ou to re+uest the court to sign 52'9.4 for
defendants is similar6. =t sa$s:
O>EE>. "he foregoing 1otion in Limine b$ ,laintiff has been presented to me. Dpon all files
and proceedings herein* the separate paragraphs of the 1otion are hereb$ granted* or denied as =
have indicated immediatel$ below each of the paragraphs in the 1otion. "he attorne$5s6 for the
Eefendant5s6 is instructed:
a. #ot to interrogate witnesses concerning the prohibited items* or to mention to the jur$ in an$
manner those items* without EefendantBs attorne$ first obtaining permission outside the presence
and hearing of the jur$H and
b. "o personall$ admonish the Eefendant and EefendantBs witnesses to refrain from mentioning
to the jur$ in an$ manner the prohibited items* without EefendantBs attorne$ first obtaining
permission outside the presence and hearing of the jur$.
&ome judges add that t$pe of paragraph to their orders automaticall$* but most do not. .or $our
maximum benefit* as the prevailing part$ in a preItrial motion keeping evidence out* hand the
judge a form paragraph to include in the courtBs preItrial order.
=f the trial court has ordered in its preItrial rulings that the matter should not be in+uired about in
front of the jur$ without again coming to the court at that point in the trial* the court ma$ take
ver$ stringent measures indeed. Miven such an order* the other side ma$ be in contempt of the
courtBs order and suffer punishment for misbehavior. Even if there was no contempt* and the
mentioning was inadvertent* the court can order various punishments to correct the prejudice
caused b$ the orderIviolation* up to and including ordering a mistrial* or waiting until the case
has ended and then granting a new trial. See, 5rvis v. "alkins +ndianto*n "itrus "o.* 53th Eist
8ppeals* .L* 7))46 5inadvertent mention sufficient for new trial order6.
=f $ou are in court with this +uickIreference checklist in $our trial notebook* and $ou +uickl$
need to argue for or against the court granting 5a6 a curative jur$ instruction* 5b6 a directed
judgement on some issue involved* 5C6 an immediate mistrial* or 5d6 a mistrial or new trial to be
granted if the offending part$ wins a verdict J follow the four point format for argument
suggested b$ the following case.
A'C ...consider whether the evidence excluded b$ the courtBs order was deliberatel$ introduced or
solicited b$ the part$* or whether the violation of the courtBs order was inadvertent.... A7C also
consider the inflammator$ nature of the violation such that a substantial right of the part$
seeking to set aside the jur$Bs verdict was prejudiced.... A4C Aalso considerC the likelihood that the
violation created jur$ confusion* wasted the jur$Bs time on collateral issues* or otherwise wasted
scarce judicial resources.... A3C also consider whether the violation could have been cured b$ a
jur$ instruction to disregard the challenged evidence.
'onaker v. ahon* 7') F. Ka. (4* ((7 &.E.7d 9:: 57))'6.
>E&,O#&E: A8ssuming courtBs order did prohi(it $ou asking the offending +uestion during the
trial without counsel first approaching the bench for permissionC: -@our <onor* = do not believe
this falls within the matters alread$ ruled upon. 1a$ we approach the bench to discuss thatG/
<ri*ile)e.
-O!?EC"=O#: @our <onor* the +uestion calls for privileged matters 5stating the nature of the
privilege6./
E=&CD&&=O#: 8 privilege is a right of an individual not to testif$. =n federal court* in civil
actions* a privilege is determined in accordance with state law. 5"here are three main exceptions
to that statement regarding priorit$ of state law: 5'6 the .ederal Constitutional .ifth 8mendment
privilege against selfIincrimination* 576 the privilege for federal grand jur$ proceedings and 546
the work product rule protecting attorne$sB mental impressions.6
"here are a variet$ of privileges in the state laws across the countr$* and the$ are handled in a
variet$ of wa$s. .or example* in California* the law protecting newspersons provides onl$ an
immunit$ from being adjudged in contemptH it does not prevent the use of other sanctions for
refusal of a newsman to respond to discover$ when he is a part$ to a civil proceeding. %S$5 v.
Superior "ourt of #iverside "ounty* '40 Cal.8pp.4d 49( 53th Eist. ';:76. >ecogni%ing the
impossibilit$ of discussing such varied privileges in a +uick reference to objections* we will
simpl$ give $ou a laundr$ list of the common privileges:
"he .ifth 8mendment to the Dnited &tates Constitution. Pills(ury "o. v. "on(oy, 3(;
D.&. 73: 5';:46 5the privilege is available in civil proceedings6H Ba)ter v. Palmigiano,
37( D& 4): 5';906 5-the .ifth 8mendment does not forbid adverse inferences against
parties to civil actions when the$ refuse to testif$ in response to probative evidence
offered against them/6. "he privilege does not extend to records re+uired b$ statute to be
kept. United States v. $oe* 30( D& 0)( 5';:36.
8ccountant J Client.
8ttorne$ J Client.
8ttorne$ Fork ,roduct. .ederal law distinguishes between opinion 5core6 and ordinar$
work product of attorne$s. Core work product consists of mental impressions and
conclusions and is given absolute protection. Ordinar$ work product consists of primar$
information* such as a witnessBs recorded statement or objective data collected b$ the
attorne$H it is given onl$ limited protection and ma$ be obtained upon a showing of
substantial need and undue hardship. .ed. >ules Civ. ,.* >ule 70 5b6546H #o(inson v.
&e)as 1uto $ealers 1ssn.* 7'3 .>E 347* at 333 5E.E. "ex* 7))46.
Clerg$.
<usband J Fife.
?oint Eefense or Common Legal =nterest.
?ur$ 5Mrand and ,etit6 ,roceedings.
1ediation Eiscussions and Offers of &ettlement. "he protection granted b$ .ed. >ules
Evid.* >ule 3): is not a privilege grant. =t is a public polic$ protection. !ut some states
have special statutes granting a privilege not to testif$.
1ental <ealth >ecords.
,h$sician J ,atient.
,s$chotherapist J ,atient.
"rade &ecret.
>E&,O#&E: -@our <onor* the matter is not privileged because..../
<ublic &olicy.
-O!?EC"=O#: @our <onor* the Aspecif$ the statute* rule or common law doctrineC sa$s it cannot
be admitted into evidence. =t is incompetent evidence./
E=&CD&&=O#: "he objection regarding public polic$ does not consist of a optional right of an
individual not to testif$. "he objection based on public polic$ refers to a nonI optional class of
evidence that cannot be introduced* no matter that the person who holds the evidence wants to
testif$. "he term -incompetent/ is use as a generali%ed reference to evidence which cannot be
introduced because it violates various rules against being allowed. =f $ou are in front of judge
onl$* using the term -incompetent/ does not add an$thing to $our specific objection 5and b$
itself an objection of -incompetent/ is so general as to be regarded b$ the courts as meaningless
and not a valid objection6. !ut if $ou are in the hearing of a jur$* adding the term -incompetent/
ma$ soften somewhat their idea that $ou and a law$erBs law are blocking good evidence the$
want to hear or see.
"he variet$ of subjects forbidden b$ state and federal law is wide. "he onl$ unit$ of concept is
-public polic$ forbids./ "o give $ou some idea of the variet$ of statutor$ subjects $ou should
consider* here is a small listing of subjects of fre+uent prohibition* based on public polic$:
Eead 1anBs &tatute. "he dead manBs statutes are state laws with so man$ exceptions*
twists and turns the$ are a minor favorite of bar examiners. "he public polic$ is to protect
estates from false claims. 1ost dead man statutes provide that a part$ to the litigation
who has an interest adverse to the estate is not a competent witness as to matters against
the estate. "he claim must be supported instead b$ written documents or disinterested
testimon$.
1edical Expense ,a$ments. Evidence of the pa$ment of medical expenses to show
liabilit$ for negligence leading to the medical expenses are inadmissable. .ed. >ules
Evid.* >ule 3);.
1edical >eview >ecords. 1ost states forbid discoverabilit$ or admissibilit$ of the
records of a medical review committee of a hospital. =t is a legislative polic$ decision to
promote the abilit$ of a hospital to discover medical malpractice above that of the injured
person to discover the malpractice.
1otor Kehicle 8ccident >ecords. 1ost states have statutes regarding some aspect of
motor vehicle accident evidence* about which some energetic legislators felt strongl$.
E.g.* that police accident reports are or are not admissible in evidenceH that lack of seat
belt use cannot be introduced into evidenceH that police blood alcohol tests are not
admissible unless strict conditions are met.
,arole Evidence >ule. "he -parole evidence rule/ has long been a rule of law in the
English speaking world. =n the absence of fraud or mutual mistake* oral statements are
not admissible to modif$* var$* or contradict the plain terms of a valid written contract
between two parties. =t has been enacted in statutor$ form in some states* but is available
in all states under common law. "he public polic$ is to promote commercial certaint$ if
the contract is clear. =f terms of the contract are ambiguous or clearl$ susceptible to more
than one meaning* then parole evidence is admissible to show what the parties meant at
the time of making the contract and how the$ intended it to appl$. 5-,arole/ means oral
evidence.6
&ettlement Eiscussions. Evidence of mediation or settlement discussions is not
admissible to prove liabilit$ for the claims that were being discussed. .ed. >ules Evid.*
>ule 3):.
&ubse+uent >emedial 1easures. Evidence of subse+uent remedial measures is not
admissible to show previous negligence or culpable conduct. .ed. >ules Evid.* >ule 3)9.
Fithdrawn Muilt$ ,lea. Evidence of a guilt$ plea that is later withdrawn* or an$
statements made in connection with it. .ed. >ules Evid.* >ule 3').
Fitness is 8ttorne$. Ethical rules prohibit a law$er from serving simultaneousl$ as a
witness and an advocate. Menerall$* a part$Bs law$er who attempts to testif$ is subject to
having to choose between being a witness or continuing as a law$er in a case. "he
-witness/advocate rule/ is subject to misuse* especiall$ if an adverse part$ can subpoena
the other sideBs law$er to be a witness and then file a motion to dis+ualif$ her from
representing her opponent because of the witness/advocate rule. "his would deprive a
person of their chosen attorne$. 8ccordingl$* most state ethics codes and courts are more
strict on appl$ing the rule when a law$er herself decides on being a witness rather than it
being the adverse part$ who seeks the testimon$.
>E&,O#&E: AEepends on the statute or rule involved.C
Rule 615.
-O!?EC"=O#: @our <onor* this calls for evidence that is excluded under >ule 3)4. 1a$ we
approach the bench to discuss this furtherG/
E=&CD&&=O#: 8n$ time $ou want to rel$ on >ule 3)4 in front of a jur$* do it b$ rule number.
Consider the alternative of sa$ing this in front of the jur$: -Objection* @our <onor* this evidence
is so powerful and prejudicial that if the jur$ hears it the$ will decide against m$ client./ "hat
alternative wa$ is a guarantee that: 5a6 if the judge overrules $our objection* the jur$ will agree
with $our own assessment of how important it isH 5b6 if the judge sustains $our objection* the jur$
will know there is reall$ bad evidence out there against $our client justif$ing an$ punishment
the$ can give $our clientQ &o* object using the >ule 3)4 number* and ask to talk to the judge out
of the hearing of the jur$.
>ule 3)7 states the fundamental principle of 8merican evidence law* to wit:
8ll relevant evidence is admissible* except as otherwise provided b$ Athe Constitution* statutes*
and other court rulesC. Evidence which is not relevant is not admissible.
"hat principle* dividing evidence into the two classes 5relevant is admissible and notI relevant is
notIadmissible6 is -a presupposition involved in the ver$ conception of a rational s$stem of
evidence./ "ha$er* Preliminary &reatise on Evidence 703 5':;:6. =t constitutes the foundation
upon which the structure of admission and exclusion rests.
Menerall$* skillful attorne$s can make almost an$thing relevant. ->elevant/ simpl$ means an
item tends to prove or disprove some fact or issue. Williams Elec. "o6op v. ontana6$akota
Utility "o.* 9; #F7d (): 5#E ';(06H .ed. >ules Evid.* >ule 3)'.
"he +uestion under >ule 3)4 is whether evidence in the class of -relevant evidence/ is material
enough 5makes enough difference6 to be admitted when balanced against 5a6 unfair prejudice to a
part$ or 5b6 time waste. "he case law recogni%es that certain circumstances call for the exclusion
of evidence which is of un+uestioned relevance. "hese circumstances range all the wa$ from
inducing decision on a purel$ emotional basis* to nothing more harmful than wasting time. >ule
3)4 calls for balancing the probative value of and need for the evidence against the harm likel$
to result from its admission. .ed. #ules Evid, #ule* >ule 3)4* provides 5as do state rules and the
common law6 that:
8lthough relevant* evidence ma$ be excluded if its probative value is substantiall$ outweighed
b$ the danger of unfair prejudice* confusion of the issues* or misleading the jur$* or b$
considerations of undue dela$* waste of time* or needless presentation of cumulative evidence.
Eetermining -probative value/ is at the discretion of the judge. Menerall$* the discretion of the
trial judge as to probative value of the evidence will be upheld. "hus it has been held that it is
within the discretion of the trial judge to allow or disallow testimon$ as to the speed of a car
some distance from the scene of the accident. See, &hompson v. !ettum* '04 #F7d ;' 5#E
';0:6. =n general* the judge determines probative value of evidence b$:
<ow directl$ related is the evidence to the disputesG
<ow important is the evidence to the jur$Bs decisionG
<ow much other evidence on the point has alread$ been introduced or is available to be
introducedG
<ow far removed is the evidence in space or time from the people* places* and events
being litigatedG
Fill the evidence introduce inadmissable issues on which jurors ma$ have strong feelings
or prejudices* such as drugs* sex* and illegal immigration.
Fill the evidence carr$ strong emotions likel$ to overwhelm an$ reason or logic of the
weight of the evidenceG
"he amount of -unfair prejudicial effect/ also is determined b$ the judge. "he word -unfair/ is
the ke$.
"he rule is directed to unfairl$ prejudicial evidence* not simpl$ prejudicial evidence. =ndeed* no
verdict could be obtained without prejudicial evidence. United States v. !oland* ;0) ..7d '4:3*
'4:9 5:th Cir. ';;76. 8fter all* -the admission of evidence is generall$ calculated to benefit one
side to the prejudice of the other./ Bell v. "ity of il*aukee* 930 ..7d '7)(* '799 59th Cir.
';:36. -NDnfair prejudiceB... means an undue tendenc$ to suggest decision on an improper basis*
commonl$* though not necessaril$* an emotional one./ 8dvisor$ Committee #ote* >ule 3)4*
.ed. #ules Evid. ,rejudice is unfair if it is the result of something other than the relevance of the
evidence. See, State v. %ringstad* 4(4 #.F.7d 4)7* 4') 5#.E. ';:36. &tated otherwise* -an$
prejudice due to the probative force of evidence is not unfair prejudice./
State v. 7immerman* (73 #.F.7d '''* ''0 5#.E. ';;36.
"he Evidence >ule 3)4* like the common law* keeps out admissible evidence onl$ if its
probative value is su(stantially out*eighed b$ the danger of unfair prejudice. =t is not a test of
mere preponderance of unfairness. Dnfair prejudice must -substantiall$ outweigh/ the probative
force of the evidence. =f $ou are the proponent of the evidence* draw to the trial courtBs attention
that if the balancing test of >ule 3)4 is being used* the court must resolve all doubt in favor of
admission. =f the court sa$s it is -a close +uestion*/ the evidence should go in. 8n$ doubts about
admissibilit$ of evidence under >ule 3)4* such as doubts about the existence of unfair prejudice*
confusion of issues* misleading* undue dela$* or waste of time* should be resolved in favor of
admitting the evidence* if necessar$ giving a contemporaneous warning instruction to the jur$ or
an admonition in the charge. ' Weinstein-s Evidence* S 3)4A)'C* at 3)4I''* 3)4I'7 5';;36.
=n determining whether to exclude evidence under >ule 3)4* courts should give the evidence its
maximum reasonable probative force and its minimum reasonable prejudicial value.
State v. #andall* 7))7 #E '0* S '(* 04; #.F.7d 34;.
A"Che exclusion of relevant evidence under >ule 3)4 is an extraordinar$ remed$ to be used
sparingl$.
%6B &rucking "o. v. #iss +nt-l "orp.* 904 ..7d ''3:* ''(( 5')th Cir. ';:(6.
>ule 3)4 also mentions -confusion of issues/ and -waste of time/ as grounds for exclusion.
-Confusion of issues/ means that too man$ issues will be injected into the jur$ room* causing
confusion in reasoning. -Faste of time/ addresses whether the offered evidence is simpl$ so
weak and removed from the issues being litigated* or so cumulative of other similar evidence*
that is not worth the time involved to consider it. "hat is where the objections of -repetitive/ or
-asked and answered/ are resolved. #o rule of evidence or procedure prohibits an attorne$ from
asking the same +uestion over and over again to secure a different answer or to clarif$ a point.
"his objection is usuall$ invalid because the +uestion usuall$ is a +uestion b$ the interrogating
counsel to pin down an ambiguous or evasive answer. <owever when it has merit* it is >ule 34
that is the authorit$ for the objection.
1cCormickBs view was that unfair surprise would be* b$ itself* a ground for exclusion. "he
federal committee instead adopted the view of most courts and of Figmore that surprise* b$
itself* was not a ground for exclusion* so surprise is not listed in >ule 3)4. "he official comments
of the .ederal 8dvisor$ Committee in a mild manner suggest that in lieu of exclusion of
evidence: -it has been stated that granting a continuance is the proper remed$ for unfair
surprise./ See, Gerhardt v. %., 479 #.F.7d ''4 5#.E. ';:76 at note 9 5-the proper remed$ for
unfair surprise is a continuance/6.
"wo +ualifications should be noted to the view that continuance* not exclusion* should be used if
the offered evidence is a surprise:
Exclusion ma$ be the onl$ available remed$ if a part$ deliberatel$ withholds information
in response to discover$ interrogatories or depositions. Exclusion as an enforcement
device ma$ be necessar$ to preserve the s$stem of discover$.
&ometimes a piece of evidence ma$ be prejudicial and that prejudice ma$ be
compounded b$ the element of surprise. "hat combination ma$ make the piece of merel$
prejudicial evidence excludable on the ground of -unfair prejudice./
"he courtBs choices regarding a >ule 3)4 ruling on admitting evidence surprising the adverse
part$ ma$ be categori%ed as being among:
#o exclusion of the evidence 5for inadvertent surprise and no prejudice6H
Continuance 5for inadvertent surprise and prejudice6H and
Exclusion 5for inexcusable surprise and prejudice6.
"his manner of anal$sis is illustrated in %rech v. Erdman, 744 #.F.7d ((( at ((9 51# ';9(6.
"he court upheld the trial courtBs admission of a neurologistBs testimon$* although disclosure of
the expert witness was not made until the da$ before trial.
"rial courts have a dut$ to suppress such evidence where counselBs dereliction is inexcusable and
results in disadvantage to his opponent. =n situations where the failure to disclose is inadvertent
but harmful* the court should be +uick to grant a continuance and assess costs against the part$
who has been at fault. <ere* however* defendant did not seek a continuance upon learning that
the doctor would testif$. "he trial court was justified in finding that defendant did not sustain
prejudice which was attributable to his having had onl$ brief notice of the doctorBs appearance.
>E&,O#&E: -@our <onor* the exclusion of relevant evidence for unfairness under >ule 3)4 is
an extraordinar$ remed$. "here is nothing unfair about this evidence./
=&eculati*e.
-O!?EC"=O#: @our <onor* it calls for the witness to guess and speculate./
E=&CD&&=O#: 8n$thing that invites a witness to guess is objectionable. 8 guess is not a factH a
guess is not an opinion based on the appropriate standards for an opinion. &peculation as to what
possibl$ could have happened* or what possibl$ could happen* is of little probative value.
Mreater freedom is allowed with expert witnesses* but still the expert is limited b$ >ule 9)7
strictures.
>E&,O#&E: -@our <onor* this is an expert giving an expert opinion within the scope of her
expertise./

8eonar' ucklin has been elected a .ellow of the =nternational 8cadem$ of "rial Law$ers*
which attempts to identif$ the top ()) trial law$ers in the D.&. <e served as a Eirector of the
8cadem$ from ';;) to ';;0. <e is also a member of the 1illionIEollar 8dvocateTs .orum*
which is limited to plaintiffsB attorne$s who have won million or multiImillion dollar verdicts*
awards* and settlements.
On the other side of the table* 1r. !ucklin has been placed in !estTs Eirector$ of >ecommended
=nsurance 8ttorne$s as a result of superior defense work and reasonable fees for over 4( insurers.
<is legal experience spans 3) $ears* and has been balanced between commercial and personal
work* between office practice and litigation* and between plaintiff and defense work. <e is the
author of Building &rial !ote(ooks, from which this article is excerpted.