Procedural and Substantive Objections

Procedural and Evidentiary Objections

Santa Barbara County Courthouse, Spanish Colonial Revival Style, 1929

Overview

The rules vary slightly with each competition, jurisdiction, and case.
Teams are not precluded from raising additional objections so long as they are based on Mock Trial rules of evidence or other Mock Trial rules
Objections not related to the Mock Trial rules are not allowed
Objections generally fall into three categories
- Objections unique to Mock Trial
- Procedural objections based on the rules of civil procedure
- Substantive evidentiary objections

Common Objections unique to Mock Trial

Witnesses are bound by their statements
Unfair extrapolation
- If a witness is asked information not contained in the witness’ statement, the answer must be consistent with the statement and may not materially affect the witness’s testimony or any substantive issue of the case
Witnesses are not permitted to use notes while testifying during the trial
Only two questions are allowed on re-cross examination
Only two questions are allowed on re-direct
Prosecution/Plaintiff did not reserve in advance time for their rebuttal
- On closing arguments the prosecution/plaintiff must ask the court before start that they want to reserve any unused time for rebuttal
- Rules and the judges may vary on how the failure to do so is treated
No objections are allowed during opening statement and closing argument
Any other deviation from the Mock Trial rules can also be objected to

Common Procedural Objections

Argumentative Questions
- An attorney shall not ask argumentative questions
- Example: during cross-examination of an expert witness the attorney asks, “You aren’t as smart as you think you are, are you?”
Lack of Proper Foundation
- Attorneys shall lay a proper foundation prior to moving the admission of evidence
- For the purposes of Mock Trial this is treated as procedural because:
  - Mock Trial objections based on the lack of foundation can usually be corrected by asking the witness further questions
  - Mock Trial stipulations often take care of foundation issues and can be referred to if the objection is made
Assumes Facts not in Evidence
- Attorneys may not ask a question that assumes unproven facts
- However, an expert witness may be asked a question based upon stated assumptions, the truth of which is reasonably supported by the evidence (sometimes called a “hypothetical question”)
Question calls for a Narrative (or too general an answer)
- Questions must be stated so as to call for specific answer
- Example: “Tell us what you know about the case.”
Non-responsive answer
- A witness’s answer is objectionable if it fails to respond to the question asked
- This objection also applies to the witness who talks on and on unnecessarily in an apparent ploy to run out the clock at the expense of the other team
Repetition (asked and answered)
- Questions designed to elicit the same testimony or evidence previously presented
- Improper if merely offered as a repetition of the same testimony or evidence from the same or similar source
Leading Question on direct examination
Outside the scope of cross examination
- Cross examination is not limited to the scope of the direct examination
- Re-direct examination is however, limited to the scope of the direct examination.
- If a question is asked on re-cross it is limited to what was asked on the re-direct

Common Substantive Objections

Most Mock Trail Competitions use the Federal Rules of Evidence, or some variation thereof

Relevance FRE 401, 402
Relevancy: Prejudicial Effect exceeds Probative Value, Confusion, Waste of Time FRE 403
Character Evidence Not Admitted to Prove Conduct, Exceptions FRE 404, 607, 608
Methods of Proving Character FRE 405, 608
Lack of Personal Knowledge FRE 602
Improper Lay Opinion FRE 701
Who may Impeach FRE 607
Improper Expert Opinion Rules FRE 702, 703 and 704
Expert cannot give an opinion on Ultimate Issue (guilt or innocence of the accused) FRE 704
Hearsay FRE 801, 802
- Prior Statement by Witness not Hearsay under certain circumstances FRE 801(d)(1)
- Admission by Party Opponent not Hearsay FRE 801(d)
- Hearsay within Hearsay FRE 805
- Hearsay Exceptions (examples)
  - Present Sense Impressions
  - Excited Utterance
  - Then existing emotional or mental state
  - Statements for the purpose of medical diagnosis or treatment, reputation as to character) FRE 803

Notes
- The competition may not use all of these rules – it depends on the case
- The notes of the advisory committee on the rules (see link below) can be helpful to understanding the rule itself

Federal Rules of Evidence

Strategic Considerations

Just because an objection is possible does not mean one wants to make it
For example, consider the objection of relevancy
- If made, the other team (or you if it was made against you) should argue your case to the judge (which the jury will hear) and explain why the evidence is relevant
- This explanation can actually hurt in the long run, unless the explanation is weak and there is a good basis for keeping the evidence out
If the other team is really good, making objections as to evidence, should you lose, makes them look better
- Example: Objecting to hearsay when it is a statement by the party opponent
With a weaker opposing attorney or team, one can be more liberal with objections if you do not think they will be able to respond well
Have your evidentiary objections against the testimony of your opponents witnesses and exhibits planned out in advance
Have your responses to the evidentiary objections you anticipate against your witnesses and exhibits planned out in advance
You cannot plan out objections based on the Mock Trial rules or procedural objections so listen carefully to the questions being asked
Do not object simply because the testimony is going bad against your side
- Relevancy is often a common objection made by inexperienced attorneys when the evidence is not coming as they hoped and they panic a bit
- Ironically, the fact that the evidence hurts one’s case is often a sign that it is relevant
Even if evidence is objectionable and could be kept out, there may be strategic reasons you want it in
- It helps your case factually
- It helps your theory of the case
- It plays well to one of your themes
- It makes the other side look like they are grasping for straws
- You would rather argue against it in closing argument