contains an opinion which he/she is not qualified to make. Whenever you desire to make an objection, you should be prepared to give the court valid reasons for your objection; otherwise, you are merely invit Whether or not you desire to object will depend upon all of the attending circumstances in the case, your trial strategy and the dangers you perceive from the evidence presented. Accordingly, there cannot be any ironclad rules advising you when to object. However, if the evidence hurts, you should object if you believe there is a reasonable chance the court will sustain it. IV. USING THE RULES OF EVIDENCE IN OBJECTIONS As you prepare for trial, it is important that you familiarize yourself with the rules of evidence in order that you may properly object to inadmissible evidence. The following case study will perhaps be helpful in organizing your evidence and objections for trial. CASE STUDY by Honorable Sam C. Pointer U.S. District Court, N.D. Alabama General Situation Civil action against automobile manufacturer, D, brought by pedestrian, P. P claims the accident was caused by defects in brakes of car being driven by White. P calls as a witness White, who (as P had anticipated) gives testimony damaging to P. P then calls Jones as a witness. (Whether Jones is to be considered a lay witness or an expert will depend upon the context of the question or the objection.) A. Pasks Jones, "Did the brakes work properly?" 1. D objects without specifying any grounds. [103] 2. D objects that question invades province of jury on ultimate issue. [704, 403] 3. D objects that question seeks an opinion from a lay witness. [701, 602] 4. D objects that the expert testimony of Jones is unauthorized since subject matter is within the understanding of ordinary laymen. [702, 403] 5. D objects that the expert opinion should be elicited by a hypothetical question. [702, 403] 6. D objects that there has been no showing of facts relied upon. [602; 705, 701] 7. D objects that opinion is based on hears say and inadmissible matters. [703] 8. D requests voir dire to learn if Jones, prior to testifying has 10. D requests voir dire to learn if P discussed White's testimony APPLICABLE NOTES A-1 (1) (1) General objection not ground for reversal unless specific ground apparent from context or otherwise plain erorr. 103. Sustaining A-2 A-3 on grounds not assigned? (2) "Harmless error" rule preserved. (3) 103. Anxious attorneys may attempt to "argue" grounds, rather than state them. Desirable to have procedure for handling matters outside hearing of jury but without having to excuse jury. (1) Opinions, whether from expert or layman, not objectionable on ground they embrace ultimate issue. 704. (2) But cf. questions using legal terms (e.g., was he "negligent"; did he have capacity to make a will). AC suggests exclusion under 403 as waste of time. Quaere: "who was at fault?" (1) Lay opinion must be (a) based on witness' firsthand knowledge and (b) helpful either in understanding witness' testimony or in determining a fact in issue, 701; 602. A-4 A-5 A-6 (2) Quaere: Opinion of owner as to value. AC 702 implies that lay owner might be treated as expert or skilled for such puposes. (3) Possible modification of standard form jury instructions re (1) (2) limiting opinions to experts. Change to instruction re first Not necessary that subject matter of expert opinion be beyond Have additional discretion under 403 to exclude wasteful testimony. A-7 (1) A-8 (3) Assumption is that expert's opinion, reasons, etc. will have been only fact of reliance (not substance) be allowed on direct? (1) Adverse party entitled to production where used while testifying . or (if judge finds "necessary in interest of justice") where used before testifying. 612. Adverse party can then cross-examine thereon and even introduce in evidence. (2) What is a "writing"? Cf. Photographs, recordings, etc. Cf. "Writing or recorded statement" in 106 and definition in 1001(1). (3) Rule is not limited to documents prepared or adopted by the witness. What about witness who has reviewed an entire file of documents before testifying? (4) When does a witness "use" a writing to refresh memory? What if lawyer "goes over" a witness' statement with him prior to trial, without reading it to him? Should the witness' answer be accepted at face value? (5) Rule is limited to production in favor of "adverse party." Does this mean the party who didn't call the witness? Does this limit the rule to situation of an adverse party himself testifying (Cf. 611)? What if one party calls the other party as a witness? Note that rule limited to cross-examination. Solution: as in leading questions? (6) Presumable privileges, such as attorney-client privilege, could be asserted against disclosure. HC 612, but what about "work (7) On request, in camera inspection by judge to delete unrelated (8) Rule does not say when a witness may be permitted while testify ing to look at documents. Also see 803 (5) (past recollection recorded.) |