An Exhaustive Review of Potential Objections
The following are an exhaustive list of most, if not all, potential objections that can be raised in response to the introduction or exclusion of evidence or improper cross examination.
| Objection | Reasoning |
| Ambiguous, confusing, misleading, vague or unintelligible. | The question is not clear and precise enough for the witness to properly answer. |
| Arguing the law | Counsel is instructing the jury on the law. |
| Argumentative | The question makes an argument rather than asking a question. |
| Asked and answered | When the attorney continues to ask the same question, and they have already received an answer. |
| Asks the jury to prejudge the evidence | The jury cannot promise to vote a certain way, even if certain facts are proved. |
| Assumes facts not in evidence | The question assumes something as true for which no evidence has been shown. |
| Badgering | Counsel is antagonizing the witness to provoke a response. |
| Best evidence rule | Holds the original source of evidence is required, if available. |
| Calls for a conclusion | The question asks for an opinion rather than facts. |
| Calls for speculation | The question asks the witness to guess the answer rather than to rely on known facts. |
| Compound question | Multiple questions asked together |
| Counsel is testifying | This objection is sometimes used when counsel is “leading” or “argumentative” or “assumes facts not in evidence.” |
| Foundation | The question relates to matters of which the witnesses’ personal knowledge has not been established. |
| Hearsay | An out of court statement used to prove the fact that the statement is being offered for. |
| Incompetent | The witness is not qualified to answer the question |
| Inflammatory | The question is intended to cause prejudice. |
| Irrelevant or Immaterial | The question is not about the issue in trial. |
| Leading question | The question suggests the answer to the witness. |
| Misstates Evidence / Misquotes witness / Improper characterization | |
| Narrative | The question asks the witness to tell a story rather than state specific facts or the answer being given is a story rather than a specific fact. |
| Privilege | The witness may be protected by privilege. |
| Doctrine of Optional Completeness | OC has offered only part of a document or writing |
| More Prejudicial than probative | The evidence’s probative value is far outweighed by the danger of unfair prejudice, confusion or the issues, or misleading the jury. |
| Non-responsive | The witness’s response constitutes an answer to a question other than the one that was asked, or no answer at all. |
| Nothing pending | The witness continues to speak on matters relevant to the question. |
HOW TO ADMIT EVIDENCE
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JURY SELECTION STAGE OBJECTIONS
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WITNESS OBJECTIONS
Most of these objections or objectable matters are cured with a Motion to Strike and a Jury Instruction to disregard the statement. |
EVIDENCE OBJECTIONS
|
A party should object every time inadmissible evidence is offered.
Ways to Accidentally Waive Appeal – If you fail to preserve appeal you will not be able to appeal the failure to grant your request from the court. Here are a few things to be cautious of in order to preserve appeal. a. Failure to continually object or give a running objection – each instance of a failure on the courts part to include or exclude evidence is its own separate appealable issue. In order to preserve appeal, you must object to each instance, or lodge a running objection. b. Failure to specify the grounds for the object – A challenge on appeal must comport with the objection made at trial. If the trial objection is general, rather than specific, error is not preserved as to a specific claim raised on appeal. c. Failure to obtain a ruling on the objection – Often times a judge may not give a formal response to an objection but may give a speaking response that avoids the answer, such as “move along” or “rephrase your question”. However, if the judge does not specifically stated that they are sustaining or overruling the objection, and you do not pursue a ruling, the objection is deemed waived. d. Failing to submit a jury instruction – Texas Code of Criminal Procedure Article 36.14 requires that a proposed jury instruction be submitted in writing or dictated into the record to preserve a challenge on appeal that the instruction was not included in the court’s charge. Likewise, in the civil context, Texas Rule of Civil Procedure 278 imposes the same requirement. e. Failing to request an extra preemptory challenge – Specifically, in order to preserve error for review, a lawyer must show that: (1) he or she asserted a clear and specific challenge for cause; (2) he or she used a peremptory challenge on the complained-of venire member; (3) his or her peremptory challenges were exhausted; (4) his or her request for additional strikes was denied; and (5) an objectionable juror sat on the jury. f. Failing to make an offer of proof – In order to preserve a claim on appeal that evidence was improperly excluded, you must make an offer of proof of what the evidence or testimony would have been.15 This is because the appellate court cannot review whether the evidence should not have been excluded if it does not know what, specifically, it was. |
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