Trial Continues
During the trial, lawyers may object or otherwise seek rulings from the judge. Evidentiary objections serve several purposes.
Evidentiary objections seek to keep legally irrelevent
information from the jury. For example, in our discussion on contracts,
we pointed out that often the meaning of a contract must be determined
entirely from a document. A lawyer might object, then, to proposed testimony
that the parties meant 13 when they used the word dozen, because the lawyer
believes that such evidence is legally irrelevent. Objection irrelevent.
- Evidentiary objections seek to keep the trial
from being unduly prolonged. A lawyer may object to evidence because she
believes her adversary is taking way too much time to prove a simple fact.
Objection cumulative, or repetitive, or asked and answered....
- Evidentiary objections seek to protect legal
privileges recognized by the law. The privilege may belong to the witness
or to the party. Objection attorney-client privilege, doctor-patient
privilege, privilege against self-incrimination.
Notice that an evidentiary objection may seek to keep damaging information from the jury. But other times the information may not be damaging. It may just be a waste of time.
Lodging an Objection. A lawyer lodges an objection
by stating "Objection---" and then stating some short description of the
nature of the objection. Judges will rule on most objections without taking
argument. "Over-ruled", means that the judge disagrees with the objection,
and will allow the witness to answer (or the exhibit to be received). "Sustained",
means that the judge agrees with the objection, and the witness may not
answer. Judges will allow argument on major evidentiary objections of importance.
In a jury trial, the dissatisfied lawyer will ask to approach the bench
out of the hearing of the jury. In response to this argument, the judge
may at times reverse himself. If the judge refuses to receive evidence,
a lawyer may make an offer of proof. An offer of proof is designed
to preserve a record of what a witness would have testified, so that an
appellate court may later consider whether the omitted evidence materially
affected the outcome of the case. A lawyer may deliver an offer of proof
himself, or at times may actually have the witness testify (out of the
presence of the jury).
Judge and jury trials. Evidentiary objections work
differently in judge and jury trials. Judges believe that juries have difficulty
disregarding improperly received evidence. Consequently, judges exercise
considerable caution in obeying the rules of evidence in jury trials. In
a judge trial (trial to the court), the judge is the finder of fact. That
means that the finder of fact is also hearing arguments about inadmissible
evidence and receiving offers of proof. Judges typically relax the rules
of evidence considerably in court trials, because it speeds the trial and
because judges believe that they have the willpower to disregard legally
irrelevent evidence. When an evidentiary ruling presents a close case,
the judge may avoid the possibility of appellate reversal by receiving
the evidence.
Limiting Instructions. Sometimes evidence may be
relevant for some reasons but irrelevent for other reasons. For example,
suppose the defendant is being charged with taking money illegally (conversion).
Suppose the defendant has a prior conviction for theft. The rules of evidence
prohibit the use of the prior conviction as proof tending to establish
the conversion. But evidentiary rules do allow the prior conviction to
be used as evidence that the defendant is not worthy of belief. When the
prior conviction is offered into evidence, on request of the defendant's
attorney, the jury will issue a cautionary instruction to the jury, telling
jurors that they may not consider the conviction for a prior theft as tending
to prove the theft at issue in this trial. Do you think that cautionary
instruction works?
Sequestering Witnesses. Judges will often order
witnesses who have not testified yet to be kept out of the courtroom until
after their testimony has concluded. This may prevent a witness from tailoring
his testimony to evidence presented by other witnesses.
Foundation. A document will not be received unless
first proved authentic. This is an example of the need for foundation.
A lawyer "lays foundation" to establish his right to offer other evidence.
The foundation for a picture, for example, involves showing that the picture
accurately represents the condition of the subject photographed at a time
relevant to the case. If a lawyer contends that offered evidence cannot
be received without further foundation, he will state: "Objection-foundation."
Hearsay. We're going to prove it was raining Saturday.
We know it was raining, because our client heard the weatherman say it
was raining that very night on television. Can our client testify to that
fact at trial? Hearsay is a statement made outside the courtroom, offered
to prove the truth of the statement. When the witness is asked whether
he heard someone make a statement, a light-bulb goes off: . But before
we can determine whether the testimony will be hearsay, we have to determine
whether the statement is being offered to prove the truth of the statement.
If it is offered for some other permissible purpose, then the hearsay objection
does not apply. In the example, My client claims to know that it was raining
on Saturday in St. Cloud. But this testimony constitutes hearsay. My client
does not have first-hand knowledge that it was raining. His claim rests
upon the statement of another person, and his testimony is being offered
to prove the truth of the weatherman's out of court statement: that it
was raining on Saturday.
The hearsay rules are quite complicated. For example,
if the weatherman is the defendant, then the plaintiff may offer the testimony,
because it is an "admission of a party opponent." I can offer the
statement also to prove that there was a weather report on Saturday, without
running afoul of the hearsay objection, because I am not trying to prove
the truth of the report. My client has actual first-hand knowledge that
there was a weather report, because he heard it himself. But he cannot
use the statement to prove what the weather actually was. Moreover, if
I want to prove that the television station reported that it was raining,
assuming that this fact is important, I can have my witness so testify,
without violating the hearsay rule, again because I am not trying to prove
it is raining. Sometimes lawyers allow opposing witnesses to offer hearsay,
because even though inadmissible, the fact is not really in dispute.
Here's another example of an exception to the Hearsay Rule. I go to the National Weather Service and get a certified copy of a document stating that it rained in St. Cloud on Saturday. Now I offer it in evidence. This is hearsay, of course. Someone outside the courtroom wrote a statement that it was raining, and I'm offering it in court to prove that fact. But the rules of evidence allow me to use that official statement, as an exception to the general rule. And there are many more to keep lawyers on their toes.
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