mock trial

Mock Trial Simplified Rules of Evidence

3 Criminal trials are conducted using strict rules of evidence to promote

4 fairness. To participate in a Mock Trial, you need to know its rules of

5 evidence. The California Mock Trial program bases its Mock Trial

6 Simplified Rules of Evidence on the California Evidence Code.

8 Studying the rules will prepare you to make timely objections, avoid

9 pitfalls in your own presentations, and understand some of the

10 difficulties that arise in actual court trials. The purpose of using rules

11 of evidence in the competition is to structure the presentation of

12 testimony to resemble a real trial.

14 Almost every fact stated in the materials will be admissible under the

15 rules of evidence. All evidence will be admitted unless an attorney

16 objects. To promote the educational objectives of this program,

17 students are restricted to the use of a select number of evidentiary

18 rules in conducting the trial.

20 Objections

21 It is the responsibility of the party opposing the evidence to prevent its

22 admission by a timely and specific objection. Objections not raised in a

23 timely manner are waived or given up. An effective objection is designed to

24 keep inadmissible testimony, or testimony harmful to your case, from being

25 admitted. A single objection may be more effective than several objections.

26 Attorneys can, and should, pay attention to objections that need to be

27 made to questions and those that need to be made to answers. Remember,

28 the quality of an attorney’s objections is always more important than the

29 quantity of the objections.

31 For the purposes of this competition, teams will be permitted to use

32 only certain types of objections. The allowable objections are found in

33 the case packet. Other objections may not be raised at trial. As with all

34 objections, the judge will decide whether to allow the testimony, strike

35 it, or simply not the objection for later consideration.

37 The rulings of the trial judge are final. You must continue the

38 presentation even if you disagree. A proper objection includes the

39 following elements. The attorney:

40 ● Addresses the judge,

41 ● Indicates that he or she is raising an objection,

42 ● Specifies what he or she is objecting to, i.e., the particular

43 word, phrase, or question, and

44 ● Specifies the legal grounds for the objection.

46 Example: “(1) Your honor, (2) I object (3) to that question (4) because it

47 is a compound question.”

49 Throughout this packet, you will find sections titled “Usage

50 comments.” These comments further explain the rule and often

51 provide examples of how to use the rule at trial.

1 Allowable Evidentiary Objections

3 1. Unfair Extrapolation (UE)

4 This objection is specific to the California Mock Trial and is not an

5 ordinary rule of evidence.

7 Each witness is bound by the facts contained in his or her own official

8 record, which, unless otherwise noted, includes his or her own witness

9 statement, the Fact Situation (those facts of which the witness would

10 reasonably have knowledge), and/or any exhibit relevant to his or her

11 testimony. The unfair extrapolation (UE) objection applies if a witness

12 creates a material fact not included in his or her official record. A

13 material fact is one that would likely impact the outcome of the case.

15 Witnesses may, however, make fair extrapolations from the

16 materials. A fair extrapolation is one in which a witness makes a

17 reasonable inference based on his or her official record. A fair

18 extrapolation does not alter the material facts of the case.

20 If a witness is asked for information not contained in the witness’s

21 statement, the answer must be consistent with the statement and

22 may not materially affect the witness’s testimony or any substantive

23 issue of the case.

25 Unfair extrapolations are best attacked through impeachment and

26 closing argument. They should be dealt with by attorneys during the

27 trial. (See how to impeach a witness on page 77.)

29 When making a UE objection, students should be able to explain to

30 the court what facts are being unfairly extrapolated and why the

31 extrapolation is material to the case. Possible rulings by a presiding

32 judge include:

33 a) No extrapolation has occurred;

34 b) An unfair extrapolation has occurred;

35 c) The extrapolation was fair.

37 The decision of the presiding judge regarding extrapolations or

38 evidentiary matters is final.

40 Usage comments — The most common example of an unfair

41 extrapolation would be if an expert witness or police officer is

42 questioned about research and procedures that require them to have

43 specialized knowledge outside what is contained in their official

44 records. This type of unfair extrapolation is illustrated in

45 Example #1 below.

47 Example #2 provides a set of facts and an example of fair and unfair

48 extrapolation based on a sample fact scenario.

1 Example #1:

3 A defense expert witness testifies about using fluorescent light when

4 collecting fingerprints, which is described in her witness statement. On

5 cross-examination, the prosecutor asks, “Did you also use a superglue

6 processing technique to collect fingerprints?” While a superglue

7 processing technique is an actual way to collect fingerprints, the

8 procedure was not mentioned anywhere in the case materials. The

9 defense could object that the question calls for an unfair extrapolation.

11 Example #2: Sample Fact Scenario

13 John Doe, who is being charged with buying stolen goods on a

14 particular night, states the following in his witness statement: “On the

15 night in question, I pulled into the parking lot of the Acme Grocery

16 Store and parked my car. I walked into the store with the other

17 customers, picked up some items, went to the checkout stand, and left

18 the store with my shopping bag.”

20 Fair Extrapolation: At trial, John Doe testifies to the following: “On the night

21 in question, around 9:00p.m., I went to the Acme Grocery Store, parked my

22 car, went into the store and purchased milk and a box of cereal. The fact

23 that John Doe said he “purchased milk and a box of cereal” is a fair

24 extrapolation. Even though there is no mention of what John purchased in

25 his witness statement, it can be reasonably inferred from the context of his

26 witness statement that he entered the store and purchased groceries.

27 Furthermore, the items he purchased (milk and cereal) do not impact any

28 substantive issue in the case.

30 Unfair Extrapolation: At trial, John Doe testifies to the following: “I

31 pulled into the parking lot of the Acme Grocery Store and parked my

32 car. I walked into the store, purchased some groceries, and withdrew

33 $200 from the ATM.” The fact that John Doe withdrew cash is an

34 unfair extrapolation because the fact John withdrew $200 on the night

35 of the crime is material to the charge of buying stolen goods because

36 it impacts the substantive issues of his motive and means to later buy

37 stolen goods.

39 Form of Objection: “Objection, your honor. This is an extrapolation,”

40 or, “That question calls for information beyond the scope of Mr.

41 Doe’s witness statement.”

43 NOTE: The Unfair Extrapolation objection replaces the Creation of a

44 Material Fact objection used in previous years in the California Mock

45 Trial.

47 2. Relevance

48 Unless prohibited by a pretrial motion ruling or by some other rule of

49 evidence listed in these Simplified Rules of Evidence, all relevant

50 evidence is admissible. Evidence is relevant if it has any tendency to

51 make a fact that is important to the case more or less probable than

1 the fact would be without the evidence. Both direct and circumstantial

2 evidence may be relevant and admissible in court.

4 Example: Eyewitness testimony that the defendant shot the victim is

5 direct evidence of the defendant’s assault. The testimony of a witness

6 establishing that the witness saw the defendant leaving the victim’s

7 apartment with a smoking gun is circumstantial evidence of the

8 defendant’s assault.

10 Usage Comments — When an opposing attorney objects on the

11 ground of relevance, the judge may ask you to explain how the

12 proposed evidence relates to the case.

14 You can then make an “offer of proof” (explain what the witness will

15 testify to and how it is relevant). The judge will then decide whether or

16 not to let you question the witness on the subject.

18 Form of Objection: “Objection, your honor. This testimony is not

19 relevant,” or, “Objection, your honor. Counsel’s question calls for

20 irrelevant testimony.”

22 3. More Prejudicial than Probative

23 The court in its discretion may exclude relevant evidence if its

24 probative value (its value as proof of some fact) is substantially

25 outweighed by the probability that its admission creates substantial

26 danger of undue prejudice, confuses the issues, wastes time, or

27 misleads the trier of fact (judge).

29 Usage Comments — This objection should be used sparingly in trial. It

30 applies only in rare circumstances. Undue prejudice does not mean

31 “damaging.” Indeed, the best trial evidence is always to some degree

32 damaging to the opposing side’s case. Undue prejudice instead is prejudice

33 that would affect the impartiality of the judge, usually through provoking

34 emotional reactions. To warrant exclusion on that ground, the weighing

35 process requires a finding of clear lopsidedness such that relevance is

36 minimal and prejudice to the opposing side is maximal.

38 Example: A criminal defendant is charged with embezzling money

39 from his employer. At trial, the prosecutor elicits testimony that,

40 several years earlier, the defendant suffered an animal cruelty

41 conviction for harming a family pet.

43 The prosecution could potentially argue that the animal cruelty conviction

44 has some probative value as to defendant’s credibility as a witness.

45 However, the defense would counter that the circumstances of the

46 conviction have very little probative value. By contrast, this fact creates a

47 significant danger of affecting the judge’s impartiality by provoking a strong

48 emotional dislike for the defendant (undue prejudice).

50 Form of Objection: “Objection, your honor. The probative value of

51 this evidence is substantially outweighed by the danger of undue

52 prejudice (or confusing the issues or misleading the trier of fact).”

1 4. Laying a Proper Foundation

2 To establish the relevance of direct or circumstantial evidence, you

3 may need to lay a proper foundation. Laying a proper foundation

4 means that before a witness can testify about his or her personal

5 knowledge or opinion of certain facts, it must be shown that the

6 witness was in a position to know those facts in order to have

7 personal knowledge of those facts or to form an admissible opinion.

8 (See “Opinion Testimony” below.)

10 Usage Comments — Example: A prosecution attorney calls a witness

11 to the stand and begins questioning with “Did you see the defendant

12 leave the scene of the crime?” The defense attorney may object based

13 upon a lack of foundation. If the judge sustains the objection, then the

14 prosecution attorney should lay a foundation by first asking the

15 witness if he was in the area at the approximate time the crime

16 occurred. This lays the foundation that the witness was at the scene

17 of the crime at the time that the defendant was allegedly there in

18 order to answer the prosecution attorney’s question.

20 Form of Objection: “Objection, your honor. There is a lack of

21 foundation.”

23 5. Personal Knowledge/Speculation

24 A witness may not testify about any matter of which the witness has

25 no personal knowledge. Only if the witness has directly observed an

26 event may the witness testify about it. Personal knowledge must be

27 shown before a witness may testify concerning a matter.

29 Usage Comments — Witnesses will sometimes make inferences from

30 what they actually did observe. An attorney may properly object to

31 this type of testimony because the witness has no personal

32 knowledge of the inferred fact.

34 Example: From around a corner, the witness heard a commotion. The

35 witness immediately walked toward the sound of the commotion,

36 found the victim at the foot of the stairs, and saw the defendant at the

37 top of the landing, smirking. The witness then testifies that the

38 defendant pushed the victim down the stairs. Even though this

39 inference may seem obvious to the witness, the witness did not

40 personally observe the defendant push the victim. Therefore, the

41 defense attorney can object based upon the witness’s lack of personal

42 knowledge that the defendant pushed the victim.

44 Form of Objection: “Objection, your honor. The witness has no

45 personal knowledge to answer that question.” Or “Objection, your

46 honor, speculation.”

1 6. Opinion Testimony (Testimony from Non-

2 Experts)

3 Opinion testimony includes inferences and other subjective statements of

4 a witness. In general, opinion testimony is inadmissible because the

5 witness is not testifying to facts. Opinion testimony is admissible only

6 when it is (a) rationally based upon the perception of the witness (five

7 senses) and (b) helpful to a clear understanding of his or her testimony.

8 Opinions based on a common experience are admissible. Some examples

9 of admissible witness opinions are speed of a moving object, source of an

10 odor, appearance of a person, state of emotion, or identity of a voice or

11 handwriting.

13 Usage Comments — As long as there is personal knowledge and a

14 proper foundation, a witness could testify, “I saw the defendant, who

15 was crying, looked tired, and smelled of alcohol.” All of this is proper

16 lay witness (non-expert) opinion.

18 Form of Objection: “Objection, your honor. Improper lay witness

19 opinion.” Or “Objection, your honor. The question calls for

20 speculation on the part of the witness.”

22 7. Expert Witness

23 A person may be qualified as an expert witness if he or she has

24 special knowledge, skill, experience, training, or education in a subject

25 sufficiently beyond common experience. An expert witness may give

26 an opinion based on professional experience if the expert’s opinion

27 would assist the trier of fact (judge) in resolving an issue relevant to

28 the case. Experts must be qualified before testifying to a professional

29 opinion.

31 Qualified experts may give an opinion based upon their personal

32 observations as well as facts made known to them at, or before, the

33 trial. The facts need not be admissible evidence if they are the type

34 reasonably relied upon by experts in the field. Experts may give

35 opinions on ultimate issues in controversy at trial. In a criminal case,

36 an expert may not state an opinion as to whether the defendant did or

37 did not have the mental state at issue.

39 Usage Comments — Examples:

40 1. A handwriting comparison expert testifies that police

41 investigators presented her with a sample of the defendant’s

42 handwriting and a threatening letter prepared by an anonymous

43 author. She personally conducted an examination of both

44 documents. Based on her training, her professional experience,

45 and her careful examination of the documents, she concluded

46 that, in her opinion, the handwriting in the anonymous letter

47 matches the handwriting in the sample of the defendant’s

48 handwriting. This would be an admissible expert opinion.

49 2. A doctor testifies that she based her opinion upon (1) an

50 examination of the patient and (2) medically relevant statements of

1 the patient’s relatives. Personal examination is admissible because it

2 is relevant and based on personal knowledge. The statements of

3 the relatives are inadmissible hearsay (hearsay is defined in Section

4 9 below) but are proper basis for opinion testimony because they

5 are reasonably relevant to a doctor’s diagnosis. A judge could, in her

6 discretion, allow the expert witness to describe what the relatives

7 told her and explain how that information supports her opinion.

8 Although those statements would not be admissible to prove the

9 statements are true, they can be used to explain how the

10 statements support the doctor’s opinion.

12 Form of Objection: “Objection, your honor. There is a lack of

13 foundation for this opinion testimony,” or, “Objection, your honor.

14 Improper opinion.”

16 8. Character Evidence

17 “Character evidence” is evidence of a person’s personal traits or

18 personality tendencies (e.g., honest, violent, greedy, dependable, etc.).

19 As a general rule, character evidence is inadmissible when offered to

20 prove that a person acted in accordance with his or her character

21 trait(s) on a specific occasion. The Simplified Rules of Evidence

22 recognize three exceptions to this rule:

23 1. Defendant’s own character

24 The defense may offer evidence of the defendant’s own

25 character (in the form of opinion or evidence of reputation) to

26 prove that the defendant acted in accordance with his or her

27 character on a specific occasion (where the defendant’s

28 character is inconsistent with the acts of which he or she is

29 accused). The prosecution can rebut the evidence (See Usage

30 Comments below).

31 2. Victim’s character

32 The defense may offer evidence of the victim’s character (in

33 the form of opinion, evidence of reputation, or specific

34 instances of conduct) to prove the victim acted in accordance

35 with his or her own character on a specific occasion (where

36 the victim’s character would tend to prove the innocence of

37 the defendant). The prosecution can rebut the evidence (See

38 Usage Comments below).

39 3. Witness’s character

40 Evidence of a witness’s character for dishonesty (in the form

41 of opinion, evidence of reputation, or specific instances of

42 conduct) is admissible to attack the witness’s credibility. If a

43 witness’s character for honesty has been attacked by the

44 admission of bad character evidence, then the opposing party

45 may rebut by presenting good character evidence (in the form

46 of opinion, evidence of reputation, or specific instances of

47 conduct) of the witness’s truthfulness.

49 Admission of Prior Acts for Limited Non-Character Evidence

50 Purposes

1 Habit or Custom to Prove Specific Behavior

2 Evidence of the habit or routine practice of a person or an

3 organization is admissible to prove conduct on a specific

4 occasion in conformity with the habit or routine practice.

5 Habit or custom evidence is not character evidence.

7 Prior Act to Prove Motive, Intent, Knowledge, Identity, or

8 Absence of Mistake

9 Nothing in this section prohibits the admission of evidence

10 that the defendant committed a crime, civil wrong, or other

11 act when relevant to prove some fact (such as motive, intent,

12 knowledge, identity, or absence of mistake or accident) other

13 than his or her disposition to commit such an act.

15 Usage Comments — If any prosecution witness testifies to the

16 defendant or victim’s character, the defense may object. But the

17 prosecution may then request to make an offer of proof, or an

18 explanation to the judge, that the prosecution (a) anticipates the

19 defense will introduce evidence of defendant’s or victim’s character,

20 and (b) Mock Trial rules do not allow for rebuttal witnesses or recalling

21 witnesses. If the judge allows, the prosecution may present evidence

22 in the form of opinion, evidence of reputation, or specific instances of

23 conduct to rebut the defense’s anticipated use of character evidence.

24 If this evidence does not come in during the defense, the defense

25 attorney can move to strike the previous character evidence.

27 Examples:

29 Admissible character evidence

30 1. The defendant is charged with embezzlement (a theft

31 offense). The defendant’s pastor testifies that the defendant

32 attends church every week and has a reputation in the

33 community as an honest and trustworthy person. This would

34 be admissible character evidence.

36 Inadmissible character evidence

37 2. The defendant is charged with assault. The prosecutor calls

38 the owner of the defendant’s apartment to testify in the

39 prosecution’s case-in-chief. She testifies that the defendant

40 often paid his rent late and was very unreliable. This would

41 likely not be admissible character evidence for two reasons:

42 (1) This character evidence violates the general rule that

43 character evidence is inadmissible (and it does not qualify

44 under one of the three recognized exceptions above), and (2)

45 the character train of “reliability” is not relevant to an assault

46 charge (by contrast, propensity for violence or non-violence

47 would be relevant character traits in an assault case).

49 Form of Objection: “Objection, your honor. Inadmissible character

50 evidence,” or, “Objection, your honor. The question calls for

51 inadmissible character evidence.”

1 9. Hearsay

2 Hearsay evidence is evidence of a statement that was made other

3 than by a witness while testifying at trial and that is offered to prove

4 the truth of the matter stated. Hearsay is considered untrustworthy

5 because the declarant (aka the speaker) of the out-of-court statement

6 did not make the statement under oath and is not present in court to

7 be cross-examined. Because these statements are unreliable, they

8 ordinarily are not admissible.

10 Usage Comments — Testimony not offered to prove the truth of the

11 matter stated is, by definition, not hearsay. For example, testimony to

12 show that a statement was said and heard, or to show that a

13 declarant could speak a certain language, or to show the subsequent

14 actions of a listener, is admissible.

16 Examples:

17 1. Joe is being tried for murdering Henry. The witness testifies, “Ellen

18 told me that Joe killed Henry.” If offered to prove that Joe killed

19 Henry, this statement is hearsay and would likely not be admitted

20 over an objection.

21 2. A witness testifies, “I went looking for Eric because Sally told me

22 that Eric did not come home last night.” Sally’s comment is an out-

23 of-court statement. However, the statement could be admissible if

24 it is not offered for the truth of its contents (that Eric did not come

25 home), but instead is offered to show why the witness went

26 looking for Eric.

28 Form of Objection: “Objection, your honor. Counsel’s question calls

29 for hearsay.” Or “Objection, your honor. This testimony is hearsay. I

30 move that it be stricken from the record.”

32 Hearsay Exceptions

33 Out of practical necessity, the law recognizes certain types of hearsay

34 that may be admissible. Exceptions have been allowed for out-of-

35 court statements made under circumstances that promote greater

36 reliability, provided that a proper foundation has been laid for the

37 statements. The Simplified Rules of Evidence recognize only the

38 following exceptions to the hearsay rule:

39 a. Declaration against interest: a statement which, when made,

40 was contrary to the declarant’s own economic interest, or

41 subjected the declarant to the risk of civil or criminal liability,

42 or created a risk of making the declarant an object of hatred,

43 ridicule, or social disgrace in the community. A reasonable

44 person in the declarant’s position would not have made the

45 statement unless the person believed it to be true.

46 b. Excited Utterance: a statement that describes or explains an

47 event perceived by the declarant, made during or shortly after

48 a startling event, while the declarant is still under the stress of

49 excitement caused by the event.

1 c. State of mind: a statement that shows the declarant’s then-

2 existing state of mind, emotion, or physical condition

3 (including a statement of intent, plan, motive, mental state,

4 pain, or bodily health).

5 d. Records made in the regular course of business (including

6 medical records): writings made as a record of an act or

7 event by a business or governmental agency (Mock Trial does

8 not require the custodian of the records to testify). To qualify

9 as a business record, the following conditions must be

10 established: (1) The writing was made in the regular course of

11 business; (2) The writing was made at or near the time of the

12 act or event; and (3) The sources of information and method

13 of preparation are trustworthy.

14 e. Official records by public employees: writing made by a

15 public employee as a record of an act or event. The writing

16 must be made within the scope of duty of a public employee.

17 f. Prior inconsistent statement: a prior statement made by the

18 witness that is inconsistent with the witness’s trial testimony.

19 g. Prior consistent statement: a prior statement made by a

20 witness that is consistent with the witness’s trial testimony.

21 Evidence of a prior consistent statement can only be offered

22 after evidence of a prior inconsistent statement has been

23 admitted for the purpose of attacking the witness’s credibility.

24 To be admissible, the consistent statement must have been

25 made before the alleged inconsistent statement.

26 h. Statements for the purpose of medical diagnosis or

27 treatment: statements made for purposes of medical

28 diagnosis or treatment, describing medical history, past or

29 present symptoms, pain, or sensations.

30 i. Reputation of a person’s character in the community:

31 evidence of a person’s general reputation with reference to his

32 or her character or a trait of his or her character at a relevant

33 time in the community in which the person then resided or in a

34 group with which the person habitually associated.

35 j. Dying Declaration: a statement made by a dying person

36 about the cause and circumstances of his or her death, if the

37 statement was made on that person’s personal knowledge

38 and under a sense of immediately impending death.

39 k. Co-Conspirator’s statements: statements made by the

40 declarant while participating in a conspiracy to commit a

41 crime or civil wrong. To be admissible, the following must be

42 established: (a) The statement was made in furtherance of the

43 objective of that conspiracy; (b) The statement was made

44 prior to or during the time that the declarant was participating

45 in that conspiracy; and (c) The evidence is offered either after

46 admission of evidence sufficient to sustain a finding of the

47 facts specified in (1) or (2) or, in the court’s discretion as to the

48 order of proof, subject to the admission of this evidence.

1 l. Adoptive admission: a statement offered against a party,

2 that the party, with knowledge of the content of that

3 statement, has by words or other conduct adopted as true.

4 m. Admission by a party opponent: any statement by a party in

5 an action when it is offered against that party by an opposing

6 party. The statement does not have to be against the

7 declarant’s interest at the time the statement was made.

9 Objections for inappropriately phrased

10 questions

12 10. Leading Questions

13 Attorneys may not ask witnesses leading questions during direct

14 examination or re-direct examination. A leading question is one that

15 suggests the answer desired. Leading questions are permitted on

16 cross- examination.

18 Usage Comments — Example: during direct examination, the

19 prosecutor asks the witness, “During the conversation on March 8,

20 didn’t the defendant make a threatening gesture?” Counsel could

21 rephrase the question, “What, if anything, did the defendant do during

22 your conversation on March 8?”

24 Form of Objection: “Objection, your honor. Counsel is leading the

25 witness.”

27 11. Compound Question

28 A compound question joins two alternatives with “and” or “or,”

29 preventing the interrogation of a witness from being as rapid, distinct,

30 or effective for finding the truth as is reasonably possible.

31 Example: “Did you determine the point of impact from conversations

32 with witnesses and from physical remarks, such as debris in the road?” If

33 an objection to the compound question is sustained, the attorney may

34 state “Your honor, I will rephrase the question,” and then break down the

35 question into two separate questions:

36 Q1: “Did you determine the point of impact from conversations with

37 witnesses?”

38 Q2: “Did you also determine the point of impact from physical marks in

39 the road?”

40 Remember that there may be another way to make your point.

41 Form of Objection: “Objection, your honor, on the ground that this is

42 a compound question.”

1 12. Narrative

2 A narrative question is too general and calls for the witness in essence

3 to “tell a story” or give a broad and unspecific response. The objection

4 is based on the belief that the question seriously inhibits the

5 successful operation of a trial and the ultimate search for the truth.

7 Usage Comments — Example: The attorney asks A, “Please describe

8 all the conversations you had with X before X started the job.” This

9 question calls for the witness to give a long narrative answer. It is,

10 therefore, objectionable.

12 Form of Objection: “Objection, your honor. Counsel’s question calls

13 for a narrative.” Or “Objection, your honor. The witness is providing

14 a narrative answer.”

16 13. Argumentative Question

17 An argumentative question challenges the witness about an inference

18 from the facts in the case. The cross-examiner may not harass a

19 witness, become accusatory toward a witness, unnecessarily interrupt

20 the witness’s answer, or make unnecessary comments on the

21 witness’s responses. These behaviors are also known as “badgering

22 the witness.” (If a witness is non-responsive to a question, see the

23 non-responsive objection, #16 below).

25 Usage Comments — Example: Questions such as “How can you

26 expect the judge to believe that?” are argumentative and

27 objectionable. The attorney may argue the inferences during

28 summation or closing argument, but the attorney must ordinarily

29 restrict his or her questions to those calculated to elicit relevant facts.

31 Form of Objection: “Objection, your honor. Counsel is being

32 argumentative.” Or “Objection, your honor. Counsel is badgering the

33 witness.”

35 14. Asked and Answered

36 Witnesses should not be asked a question that has previously been

37 asked and answered. This can seriously inhibit the effectiveness of a

38 trial.

40 Usage Comments — Examples: On direct examination, the

41 prosecution attorney asks, “Did the defendant stop at the stop sign?”

42 The witness answers, “No, he did not.” Then, because it is a helpful

43 fact, the direct examining attorney asks again, “So the defendant

44 didn’t stop at the stop sign?” Defense counsel could object on asked-

45 and-answered grounds.

47 On cross-examination, the defense attorney asks, “Didn’t you tell a police

48 officer after the accident that you weren’t sure whether X failed to stop for

49 the stop sign?” The witness answers, “I don’t remember.” Defense attorney

50 then asks, “Do you deny telling the officer that?” If the prosecution attorney

51 makes an asked-and-answered objection, it should be overruled. Why? In

1 this example, defense counsel rephrased the question based upon the

2 witness’s answer.

4 Form of Objection: “Objection, your honor. This question has been

5 asked and answered.”

7 15. Vague and Ambiguous Questions

8 Questions should be clear, understandable, and concise as possible.

9 The objection is based on the notion that witnesses cannot answer

10 questions properly if they do not understand the questions.

12 Usage Comments — Example: “Does it happen at once?”

14 Form of Objection: “Objection, your honor. This question is vague

15 and ambiguous as to...” 16

17 16. Non-responsive Witness

18 A witness has a responsibility to answer the attorney’s questions.

19 Sometimes a witness’s reply is vague, or the witness purposely does

20 not answer the attorney’s question. Counsel may object to the

21 witness’s non-responsive answer. 22

23 Usage Comments — Example: The attorney asks, “Did you see the

24 defendant’s car in the driveway last night?” The witness answers,

25 “Well, when I got home from work, I hurried inside to make dinner.

26 Then I decided to watch TV, and then I went to bed.” This answer is

27 non-responsive, as the question is specifically asking if the witness

28 saw the defendant’s car on the night in question. 29

30 Form of Objection: “Objection, your honor. The witness is being non-

31 responsive.”

33 17. Outside the Scope of Cross-Examination

34 Redirect examination is limited to issues raised by the opposing

35 attorney on cross-examination. If an attorney asks questions beyond

36 the issues raised on cross-examination, opposing counsel may object

37 to them.

39 Form of Objection: “Objection, your honor. Counsel is asking the

40 witness about matters beyond the scope of cross-examination.”