Format of a Criminal Trial
Summary Table (read from left to right):
| READING OF CHARGES |
PROSECUTION'S OPENING STATEMENTS |
| DEFENSE'S OPENING STATEMENTS |
BRIEF RECESS |
| PROSECUTION CASE IN CHIEF |
(A) DIRECT EXAM |
| (B) CROSS EXAM |
(C) REDIRECT |
| (D) RECROSS |
THE STATE RESTS |
| MOTION FOR JUDGMENT |
DEFENSE CASE IN CHIEF |
| THE DEFENSE RESTS |
PROSECUTION REBUTTAL |
| DEFENSE REJOINDER |
CLOSING ARGUMENTS |
| (A) PROSECUTORIAL SUMMATION |
(B) DEFENSE SUMMATION |
| (C) PROSECUTION REBUTTAL |
JURY INSTRUCTIONS |
| JURY DELIBERATION AND VERDICT |
DISMISSAL OF JURY |
(1) READING OF CHARGES
The reading of charges is a formality that is usually nothing more than reading
the case from the docket. It becomes more than a formality in two situations:
there has been some last-minute plea bargain on the charges; or the defendant
has chosen a pro se defense (acting as their own attorney).
In the case of State v. Hypothetical Defendant, the following words
actually start the trial:
Judge: Are counsel ready to proceed?
Prosecutor: Ready, Your Honor.
Defense: Ready, Your Honor.
(2) PROSECUTION'S OPENING STATEMENT
No arguments, evidence, or objections can be made at this stage. The purpose of
opening remarks is to lay out the prosecution's case with enough of the hand
showing so as to give the jury confidence that the People have an air-tight
case, but without revealing any wild cards that the prosecutor might be holding.
The prosecutor must appear confident without sounding pushy. Some typical
remarks include:
Prosecutor: Good morning, ladies and gentlemen. Let me introduce myself.
I'm ________, representing the People of _______ in this important case. My
purpose this morning is to help you anticipate what you will hear over the next
few days or weeks as you listen to the evidence. I simply want to give you an
overview of the People's case against _______ and to thank you in advance for
your patience and undivided attention. Your willingness to serve is a true
reflection of your sense of civic duty and commitment to justice. Let me say
right up front that the People are well aware of the burden of proof we bear in
this case, and we are confident that by the end of the trial you will be able to
see that we have more than met that burden. That is our promise to you. You will
see from the reliable testimony and hard evidence presented that the defendant
had the motive, the opportunity, and the means to commit the crime. In addition,
we have firmly established the identity of the criminal offender to be that of
the defendant in this case through circumstantial evidence. Now, you will
repeatedly hear the defense say that the State's case rests on circumstantial
evidence, implying that the absence of an eyewitness merits an acquittal. Please
don't be taken in by this tactic. Eyewitnesses are not required by law, and in
fact, the case would not have gotten this far if there was an eyewitness. If
there was an eyewitness, this would be such a slam-dunk case that the defendant
would probably enter a guilty plea and get on with serving his time. Guilty
verdicts can and should be reached on circumstantial evidence, and I trust you,
the Jury, will do your job as many other juries have done before you with
exactly this kind of evidence and see that there is no other choice but to find
the defendant guilty on all counts.
(3) DEFENSE'S OPENING STATEMENT
Again, no arguments, evidence, or objections can be made at this point. In fact,
the defense has the option of waiving an opening statement altogether (almost
never a good idea). The purpose of defense remarks should be limited to taking
the sting out of the charges, sharing the grief and pain of the victims (to take
the sympathy vote away from the prosecution), and presenting a defense theory of
the incident. Some typical remarks go like this:
Defense: Ladies and gentlemen, we have been brought together today
because a tragedy has occurred. An innocent, unsuspecting individual was the
victim of a senseless act that was undeserved. You or I could just as easily
have been involved in the situation leading up to the events that brought us
here today. But there is a second tragedy in this case. My client, an
outstanding member of this community, who has attended our school system,
contributed to our economy, raised a family, attended church...stands here today
before you wrongfully accused of these crimes. Try to imagine, if you will, what
it feels like to be falsely accused of the kinds of things the prosecution wants
us to consider. How would you react? What the prosecution has failed to tell you
is that there is no real evidence linking my client to the scene of the crime.
Certainly, there were ill feelings between my client and the unfortunate victim
in this case, but that is and should not be convincing to you or any other group
of reasonable people. Ladies and gentlemen, we cannot bring the poor,
unfortunate victim back to tell you what happened. My client would, if he only
could, to have the truth exposed. Nor should we depend on the kinds of
unreliable testimony and shoddy police work you will see exposed in the State's
case. Please keep asking yourself the hard questions, and remember there's
always another side to every story. As you listen to the prosecution's case,
remind yourself that they will not tell you the whole story. It's not their job
to do that. They have invested too much of the State's resources already in the
misdirected investigation and charging of my client, and it's too late for them
to admit they're wrong. My client will be the first to admit he's far from being
a perfect person, but haven't every one of us gotten mad at someone sometime.
Ladies and gentlemen, promise me you'll listen to the whole story, and prevent
another tragedy from occuring--the wrongful conviction of an innocent person.
#4 BRIEF RECESS
At the end of opening statements, you can expect to see a brief recess. These
will occur throughout the trial just when things seem to be heating up a bit.
The break here is for counsel to catch their breaths, line up their witnesses,
and get ready for the fight.
Judge: Ladies and gentlemen, we'll take a brief recess.
#5 PROSECUTION CASE-IN-CHIEF
(A) DIRECT EXAM
(B) CROSS EXAM
(C) REDIRECT
(D( RECROSS
The case-in-chief represents the State's main case against the defendant. The
witness box becomes the center of attention as it's time to hear the evidence.
Once the court reconvenes, the process goes like this:
Judge: Are the People ready to proceed?
Prosecutor: We are, Your Honor.
Judge: Very well. You may call your first witness.
In direct examination (Part A), the prosecutor is not allowed to ask any leading
questions, that is, anything which might suggest an answer (unless, the witness
is called as a "hostile" witness). The purpose of direct exam is to ask simple
background questions to help introduce each witness, and to allow each witness
to testify what he or she knows, seen, heard, tasted, touched, or came to from
one of their senses. What witnesses are expected to say has, of course, been
determined beforehand by depositions, and although no one has "coached" the
witnesses on how to say something, it is often the case that witnesses and the
prosecution have rehearsed the form of questions and answers that will take
place. The script, or sequence, of witnesses is more important, and usually
consists of the following order:
#1 - Witnesses who can testify to events leading up to the crime.
#2 - Witnesses who can tell how and when the crime was discovered.
#3 - Witnesses who can testify as to the defendant's whereabouts.
#4 - Police officers and investigators who collected physical evidence.
#5 - Criminalists, Medical Examiners, and Lab experts.
#6 - Background witnesses on the defendant.
#7 - Witnesses who can speak to the motive and possible means.
#8 - Witnesses who can speak to defendant's behavior during arrest.
In cross examination (Part B), leading questions are allowed for the reason that
a prosecution witness might not be inclined to respond favorably to a lawyer
from the other side. Although objections could have been raised during the
direct examination, it is entirely possible that the first objections in the
trial will come from the prosecution who objects to the way the other side is
handling one of their witnesses. Defense attorneys will usually try to impeach,
or discredit, the prosecution's witnesses in one way or another through close
observation of the witness during direct exam. These observations will consist
of looking for the following things to probe for:
a - the witness' demeanor--nervousness, defensiveness.
b - the character of the testimony--is it something they would know.
c - the extent of their ability to perceive or recollect.
d - the opportunity they had to perceive and register the event.
e - their character for honesty.
f - the existence of any bias, interest, or other motive.
g - previous inconsistency--with other cases, in their deposition.
h - accuracy--if they would contradict themselves given other facts.
i - attitude toward the case--if they want the defendant found guilty.
In redirect, the prosecution will try to rehabilitate the credibility of their
witness or restore the weight of the testimony given. It is important to
understand that with redirect (as with recross which follows) that both sides
cannot keep going over old territory. They must confine the purpose of redirect
and recross to new or surprising issues that came out in cross exam. Likewise,
recross must be confined to new issues that came out during redirect. This
follow-up process of direct-cross-redirect-recross is repeated with the
defense's case-in-chief.
#6 THE PROSECUTION RESTS
At this stage, the prosecution returns to its desk, and before sitting down,
says:
Prosecutor: Your Honor, the People rest.
#7 MOTION FOR JUDGMENT
It is just standard practice for the defense to move for an immediate dismissal
at this point. Whether it's called motion for summary judgment or some other
name, it is just to give the impression that the State lacks sufficient
evidence. The defense knows full well it will be denied, but it also reinforces
the idea that the defense did some damage during cross examination.
#8 DEFENSE CASE-IN-CHIEF
In direct examination (part A), the defense must decide (after a brief recess)
if they are going to stick to their alibi defense (usually the best bet) or
consider another theory (perhaps a mitigated, lesser offense). The biggest
gamble of all is to begin with the defendant testifying on their own behalf.
Constitutionally, the defendant doesn't have to, but the reality often is the
defendant talked to police or investigators during arrest or interrogation.
Putting your client on the stand right away would probably only be a good
strategy if there was no communication with police, and previous
cross-examination made a shambles out of the State's witnesses. Instead, the
usual strategy is to line-up your defense witnesses as follows:
#1 - Witnesses who can attack police handling of the evidence.
#2 - Expert witnesses who can counter the prosecution's evidence.
#3 - Witnesses who can make the defendant look good.
#4 - Witnesses who can shed light on alternative theories.
One can expect lots of vigorous objections by the prosecution to this line-up of
witnesses. It is, after all, solely intended to raise reasonable doubt. First,
the defense shifts the spotlight from the defendant to the shoddy police work
involved. Former police officers from out-of-state are usually brought in to
walk the jury through how the police should have done things. Experts in
criminalistics (crime scene reconstruction) are then allowed to razzle-dazzle
the jury with computer animations of how it could have happened. At this point,
the trial has become a battle of the experts: scientific experts, medical
experts, almost every kind imaginable are called in to shatter the prosecution's
experts. Finally, you call in buddies of the defendant, friends who can give
good character evidence. The defense has also probably done its own
investigation, and is able to produce average citizens from around town who can
testify as to unknown, suspicious figures they saw lurking in the shadows (but
not resembling the defendant) at the time of the crime. All the above casts
serious doubt.
#9 THE DEFENSE RESTS
The defense attorney approaches their desk, and says:
Defense: Your Honor, the Defense rests.
#10 PROSECUTORIAL REBUTTAL
This stage is reserved for any last-minute witnesses, or surprise witnesses who
came forward during the course of the trial. If the prosecution is lucky, maybe
an eyewitness will turn up. Sometimes, the prosecution will be holding back, and
use this stage for scientific evidence, like DNA or something novel, like a new
scientific technique. Generally, something new will not be brought in unless a
foundation was laid for it, or at least the suggestion of it, earlier in the
trial. Of course, previous witnesses can be recalled at this stage simply for
the reason that the prosecution wants the jury to hear the good stuff again.
These would be witnesses that the defense never subjected to vigorous cross-exam
because their testimony was very influential.
#11 DEFENSE REJOINDER
This stage is likewise reserved for last-minute, or surprise, witnesses.
Additional experts, or a meta-expert, may be called to make sense of all the
expert testimony. Generally, someone prestigious is withheld until last. Of
course, previous witnesses may be called to reinforce something in the jury's
mind. A trend is to try and get "hypotheticals" admitted, not the kind that
involve questioning, but what is done in European courts where a distant expert
testifies on the record by mail, fax, or other form of electronic communication.
#12 CLOSING ARGUMENTS
(A) PROSECUTORIAL SUMMATION
(B) DEFENSE SUMMATION
(C) PROSECUTORIAL REBUTTAL
These stages are not speeches, but high-level argumentations. The purpose is to
come up with sound bites that stick in the jury's mind when they go out to
deliberate. Courtroom dramatics are also not out of order at this stage.
Attorneys will play back sound recordings, or ask that certain segments of the
court transcript be read outloud. Emotional appeals will be made about the
victims and their crying out for justice. All the circumstantial evidence will
be made to look like it points to the defendant and no one else. All the expert
testimony will be characterized as the kind of evidence any reasonable person
would be able to understand. Alternatives theories will be discredited as simply
strategies and tactics that unscrupulous lawyers on the other side are using to
win their case at all costs. Closing arguments can get pretty vicious. Some
samples are as follows:
Prosecutor: Ladies and gentlemen. From the words out of the mouths of our
witnesses to the trail of blood pointing straight to the defendant, the evidence
is overwhelming. Beyond any reasonable doubt, the defendant is absolutely 100%
guilty as charged. In the interest of justice, in the interests of the poor,
innocent victims of this terrible madness, the People of this State ask you to
find the defendant guilty on all counts.
Defense: Ladies and gentlemen. The State has proved nothing. Absolutely
nothing. Their handling of this case has been a miscarriage of justice. No
doubt, the judge will remind you of the burden of reasonable doubt. This is not
a civil trial. We require extremely higher levels of proof. Surely, you must
have doubts. Is our client capable of these despicable crimes? You have heard
the testimony of many who regard ______ as an outstanding citizen and friend.
What possible motive could our client have had? Secondly, the State's case is
built around physical evidence which has been shown by the experts to be
inconclusive. If the experts can't agree, what chance have you or I got? The
circumstantial evidence is susceptible to two different interpretations, one
pointing to guilt, and another pointing to innocence. By law, if reasonable, you
must adopt that interpretation which points to innocence, and reject any
misguided interpretations which point to guilt. You must vote your conscience,
even if this means failing to reach a verdict. Ladies and gentlemen, it would
take all day to list the holes we poked in the State's case, but we don't want
your vote simply because the State fouled up in their handling of this case. Nor
do we want your vote because you feel sorry for our client who has been
wrongfully accused. We want your vote because he/she is absolutely 100%
innocent. The time has come for you to decide, and the choice may not be a
difficult as you might think. If you are not 100% sure that he/she did it, you
must return a verdict of not guilty.
Prosecutor: Ladies and gentlemen. Don't fall for the oldest trick in the
book. The only miscarriage of justice going on here is the defense's convoluted
tactics to get you fantasizing about innocence in this case. The facts clearly
and consistently point the finger of guilt at the defendant. The time has come
for you to honor your commitments to civic duty and justice. We appreciate your
patience in this case, and I'm sure it gives us no great pleasure to render a
verdict of guilty, but you have no other choice when you look at the facts. And
that, ladies and gentlemen, is what you must do. I submit to you that we kept
our promise. You have more than enough evidence to convict. If any part of it, a
small scientific tidbit, for example, is not to your liking, then feel free to
disregard it. There is plenty of other uncontested evidence which would lead
reasonable people to a conclusion that the one and only possible verdict in this
case is guilty.
#13 JURY INSTRUCTIONS
These can be complicated, but the jury is allowed to take a copy into the jury
room. Juries are instructed to listen closely, however, because they must follow
the law as outlined by the judge, who reads the tailor-made instructions for
each case to the jury. Juries must follow the law, even if they don't agree with
it (sometimes called jury nullification). In some situations, the judge may also
read the shotgun, or Allen, charge which happens when the jury is deadlocked,
and the judge orders the holdouts to go with the majority or that another jury
is not going to be any more skilled. Other types of instructions are designed
for special instances. Here's a sample instruction for a case with a variety of
evidence:
Judge: Ladies and gentlemen of the jury. You must base your decision on
the facts and the law. A fact is something provided directly or circumstantially
by the evidence or by stipulation. A stipulation is an agreement between
attorneys regarding the facts. Second, you must apply the law as I state it to
you. If anything concerning the law said by the attorneys during the trial
conflicts with my instructions, you must follow my instructions. You must not be
influenced by pity, prejudice, bias, sentiment, conjecture, passion, or public
opinion. Both the People and the defendant have a right to expect that you will
conscientiously consider and weigh the evidence, apply the law, and reach a just
verdict regardless of the consequences. Do not consider for any purpose any
evidence that was rejected or stricken by the court; treat it as though you
never heard it. Both direct and circumstantial evidence must be given the same
weight. Neither is entitled to greater weight than the other. Intent may be
shown by the act which was done. Motive is not necessary to prove in this case.
Discrepancies in a witness' testimony or between their's and other's does not
necessarily mean that the witness should be discredited. You are bound to weigh
conflicting testimony as you see fit. Likewise with expert testimony, which is
only opinion based on knowledge beyond that of the average layman. Problems in
the chain of custody also go to the weight of the evidence as you see fit. Any
conflict in the character evidence is for you, the jury, to resolve, however,
you may infer good character where there has been no offer of bad character.
Behavior at the time of arrest, such as attempting to flee, may be taken into
consideration by you as presumptive of guilt. And finally, you must in no way
draw any inference from the fact that the defendant did not testify on his/her
own behalf. Here are the statutory definitions in our penal code ________.
#14 JURY DELIBERATION AND VERDICT
The first thing usually done is to elect a foreperson, or someone with natural
leadership ability will come to the forefront. If the foreperson is wise, there
will not be an early vote. Instead, there will be discussion on how to
deliberate. Chances are that the jury will polarize along two sides: guilty and
innocent, with spokespersons for each side trying to convice the others. The
jury will rehash facts and issues from the trial, and there will be inevitable
problems with how to fill our the verdict forms. A compromise verdict will
usually be reached representing the group's consensus which merges the facts in
the case with options available on the verdict form.
OBJECTIONS AT TRIAL
AND OTHER CRIMINAL PROCEEDINGS
Some general categories and abbreviated definitions:
IRRELEVANT
(Something is "relevant" when it has any tendency to make the existence
of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without) |
IMMATERIAL
(Something is "material" when it has an effective influence or bearing
on the decision of the case) |
INCOMPETENT
(Something is "competent" when, in legal proceedings, is admissible for
purposes of proving relevant facts) |
MISLEADING
(forces an answer) |
CONFUSING
(too fast or redundant) |
IMPROPER
(compound sentence) |
ARGUMENTATIVE
(opinionated) |
PREMATURE
(before foundation) |
CONCLUSIONARY (calls for hearsay) |
The first three (Irrelevant, Immaterial, and Incompetent) are referred to as the
three tests (hurdles) of admissibility. Something is irrelevant when it is
"collateral", or totally unrelated to the charges or the penal code which
applies in the case. Asking an offbeat question like "Do you believe in UFO's?"
would be an example of an irrelevant question. Something is immaterial when the
jury doesn't need to be bothered with it. Materiality is the main standard for
determining if something leaves an impression on their minds, and anything that
would clutter up the jury's mind, annoy them, or just plain isn't necessary.
"Materiality" also has another meaning, as in "material" witness, one who
doesn't wish to testify, but because they are an eyewitness or needed to
convict, they are compelled to testify. Examples of immaterial questions
affecting the jury would be requests to visit the crime scene (when the sketch
should suffice) or other in-court demonstrations (when the jury should be
allowed to draw their own inferences). Something is incompetent when it has no
place in court. Hopefully, anything unconstitutional should have long ago been
suppressed, but incompetency refers to either the person or the evidence as
being of such low quality as to be beneath the court's dignity. Examples would
include using the testimony of ex-convicts or people who use jargon (although
there is some leeway with allowing a witness to describe things in their own
words) or using some shady private investigator to dig up evidence when that
person has lost their license or is unethical in their work.
Particular objections may or may not fit into any of the categories above.
To appreciate the full variety, the following alphabetical list has been
provided.
AMBIGUOUS, CONFUSING, MISLEADING, VAGUE, UNINTELLIGIBLE
Objection Your Honor, the question is (confusing) (ambiguous) (vague)
(unintelligible) (misleading)
Any of these is the proper objection to a question not posed in a clear and
precise manner so that the witness knows with certainty what information is
being sought.
ARGUING THE CASE
Objection, your Honor. Counsel is arguing his/her case
Lawyers often do this, and are allowed some leeway. It occurs most often in
opening statements where counsel states their version of the facts and then goes
on to state what conclusions should be drawn from them.
ARGUING THE LAW OR FACTS, ATTEMPTING TO INDOCTRINATE THE JURORS ON THE LAW
Objection, your Honor. The purpose of counsel's question is to argue his case
or pre-instruct the jury on the law.
Lawyers often make this kind of mistake, and it is improper for them during voir
dire, or at any point, to give the jury a crash course in law. That is the
judge's job, but lawyers get around it by saying "As you will undoubtedly hear
from the judge, the law in this case requires...."
ARGUMENTATIVE
Objection, the question is argumentative
An argumentative question is where counsel states a conclusion and then asks the
witness to argue with it, often in an attempt to get the witness to change their
mind. Also known as "badgering" the witness.
ASKED AND ANSWERED
Objection, the question has already been asked and answered
Lawyers will often try to emphasize a point by repeating the question that
elicited a crucial answer. Some limited repetition is allowed, but most courts
will sustain an objection if the question has been asked two or three times.
ASKING THE JURY TO PREJUDGE THE EVIDENCE
Objection, the question asks the jury to prejudge the evidence
Questions at voir dire or whenever are improper if the call for a promise from
the jurors to vote a particular way if certain facts are proven. For example,it
is improper to say "If I prove the defendant was someplace else at the time,
would you promise to acquit him?"
ASKING A QUESTION WHICH INTRODUCES PREJUDICIAL OR INFLAMMATORY EVIDENCE
Objection, the question introduces inadmissible prejudicial evidence
Most any line of questioning which would unduly prejudice or inflame the jury is
inadmissible. For example, a series of questions which create the impression
that the defendant has a long history of prior criminal conduct.
ASKING A QUESTION WHICH IS NOT RELATED TO AN INTELLIGENT EXERCISE OF A
PEREMPTORY CHALLENGE OR CHALLENGE FOR CAUSE
Objection, the question is not related to an intelligent exercise of...
Questions asked during voir dire must be designed to assist in the intelligent
exercise of peremptory challenges whether or not such questions are also likely
to uncover grounds sufficient to sustain a challenge for cause,
ASSUMES FACTS NOT IN EVIDENCE
Objection, the question assumes facts not in evidence
This objection is used when the introductory part of a question assumes the
truth of a material fact that is in dispute. Questions that assume facts are
permitted only under cross-examination, and usually to impeach a witness'
credibility.
BEST EVIDENCE RULE
Objection, offered exhibit fails to meet the best evidence rule
Applies to writings, such as a last will and testament, which are not the
original writings -- that is, the best evidence. Requiring the original document
insures that nothing has been altered in any way.
BEYOND THE SCOPE
Objection, Your Honor, this is beyond the scope of the direct
Permissible questions during cross, redirect, and recross must be related to
information gathered during direct examination. Questions during redirect cannot
go beyond the scope of cross, and questions during recross cannot go beyond the
scope of redirect; and so on.
CALLS FOR CONCLUSION
Objection, counsel's question call for a conclusion
Conclusions regarding the end result of reasoning flowing from a series of facts
are left to the jury. Normally, the witness shouldn't draw conclusions, but
rather present facts. However, expert witnesses present conclusions, and lay
witnesses are allowed to under certain conditions. For example, the court might
allow the statement that "the car was going too fast" instead of requiring "the
car was going very fast".
CALLS FOR SPECULATION
Objection, Your Honor, calls for speculation
Anything that invites a witness to guess is objectionable. Speculation as to
what possibly could have happened is of little probative value. Some leeway is
allowed for the witness to use their own words, and greater freedom is allowed
with expert witnesses.
COMPOUND QUESTION
Objection, Your Honor, compound question
A compound question asks two or more separate questions within the framework of
a single question. Generally reserved for situations if the witness answers
"No", it is confusing as to which part of the question is being answered.
CUMULATIVE
Objection, Your Honor, this evidence is cumulative
Cumulative evidence repeats evidence already introduced. It is up to the judge's
discretion when to stop production of the same evidence by one witness after
another, or the introduction of similar exhibits if no new information is being
offered.
FACTS STATED WILL NOT BE PROVEN
Objection, Facts stated will not be proven by evidence adduced at trial
Counsel cannot allude to evidence which, though true, is incapable of being
proven at trial because of a pretrial ruling or some other test of
admissibility.
FAILURE OF DEFENDANT TO TESTIFY
Objection, counsel is commenting on defendant's failure to testify
This objection is available only to defense counsel when the prosecution
comments on the defendant's failure to testify. Such comments are only allowed
in civil cases, and are forbidden by the Fifth Amendment in criminal cases.
HEARSAY
Objection, the question calls for hearsay
Hearsay is a statement made by someone other than the witness testifying and
offered to prove its own truth. There are exceptions to the hearsay rule, but it
exists because second-hand statements are unreliable and cannot be tested by
cross-examination.
IMPROPER IMPEACHMENT
Objection, Your Honor, improper impeachment
This is used when attacks on a witness's credibility go beyond the allowable
grounds for impeachment. Beyond the usual method of pointing out contradictory
evidence, there are generally 5 WAYS TO IMPEACH a witness: (1) bias or
prejudice, if paid, stands to gain, a friend or rival; (2) Poor character, for
honesty or veracity; (3) Conviction, if less than 10 years ago; (4) Poor memory,
if lack ability to observe, remember, or recount; and (5) Prior inconsistent
statement, but only if an important fact, such as saying they worked that day,
then later saying they had the day off. With expert witnesses, beyond the usual
method of attacking credentials, unsubstantiated attempts to overturn the
presumption of regularity that imply substitution, contamination, or tampering
are improper.
LEADING
Objection, the question is leading.
A leading question suggests the answer one expects to hear; "You were at the
victim's home that night, weren't you?". The lawyer should not be doing the
testifying. Leading questions are permitted under certain circumstances, usually
in cross-examination, with expert witnesses, with young, old, or poor recall
witnesses, and with any hostile, evasive, or adverse witness.
MISSTATING THE EVIDENCE
Objection, counsel is misstating the evidence offered at trial
While reasonable inferences may be drawn, it is objectionable if the evidence is
misstated or the testimony misquoted. Often, the ground for a "we except"
statement, if overruled, which preserves grounds for appeal. In addition, some
states require showing that the outcome of the trial was prejudiced by the
misstatements.
MISSTATING THE LAW
Objection, counsel is misstating the law or jury instructions
Judges allow attorneys to paraphrase jury instructions, so long as they do it
fairly and accurately in their closing arguments.
NARRATIVE CALLED FOR
Objection, counsel's question calls for a narrative
This is used when there is danger of a witness running away with their story, or
to start pouring out their testimony. There are times when a narrative is
appropriate, and better than question and answer, but in this case, the
objection is to prevent inadmissible evidence from pouring out before counsel
has a chance to object.
NON-RESPONSIVE ANSWER
Objection, Your Honor, non-responsive
Used when an answer does not directly answer the question. And if the answer
goes beyond the question, the excess is objectionable.
OPINION BY AN UNQUALIFIED WITNESS
Objection, counsel's question calls for an improper opinion. Or, objection,
the witness hasn't been sufficiently qualified as an expert. Or, objection,
insufficient foundation
Opinion testimony is proper only in the area of expertise or specialized
knowledge that an expert witness is qualified in. Lay witnesses may give
opinions only when their perception is helpful to the jury; e.g., time,
distance, speed, sobriety.
PERSONAL ATTACKS ON COUNSEL, DEFENDANT, OR WITNESS
Objection, counsel is personally attacking (me) (defendant) (witness)
This is usually reserved for cases when a lawyer acts like a bully. It is proper
to attack testimony or credibility, but personal attacks, in an effort to vent
or inflame emotions, is forbidden.
PERSONAL OPINIONS BY COUNSEL
Objection, counsel is giving his/her personal opinion
Any statement based on a counsel's personal belief that something is or is not
true is strictly forbidden. Lawyers can only comment on the credibility of a
witness, the weight of the evidence, and arguments about the evidence, not if
anything is true or false. This objection is also used for when a lawyer
expresses their personal opinion about the integrity of opposing counsel, the
defendant, or any witness. Attacks on credibility should never become personal.
PREJUDICIAL OR INFLAMMATORY REMARKS
Objection, counsel's argument is solely designed to prejudice the jury
Improper arguments include anything devised to appeal to the jury's sympathy,
passions, or prejudice. For example, it is improper for a prosecutor to say that
the jury has a moral obligation to protect society from the defendant, that the
defendant will commit more crimes if released, or to imply that the defendant
might strike back personally against the jury. Equally objectionable is for the
defense to remind the jury of the defendant's family responsibilities, his/her
sobbing young children, or bright future. These kinds of comments are only
allowed at sentencing hearings.
RELEVANCE
Objection, the question calls for an irrelevant answer.
Something is irrelevant if it does not serve, by any natural pattern of
inference, to establish an issue of fact. The court is bound by efficiency and
must prevent distractions on extraneous issues that do not have a relationship
to the trial.
Last updated: July 02, 2006
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