Federal Evidence Rules Primer
The Federal Rules of Evidence (FRE) lay down the evidentiary standard for all cases taken to court in the United States. They apply to federal laws and proceedings, even if the case involves state statutes. The FRE is centralized under rule 1101, which provides both their scope and purpose.
The rules apply to all U.S. district courts, U.S. bankruptcy courts, U.S. administrative agencies, and to the U.S. Court of Appeals. They do not cover courts not in the U.S. , such as districts in Puerto Rico, Guam, and the U.S. Virgin Islands, nor do they apply to U.S. tax courts, military courts/courts-martial, executive courts, or tribal courts.
The point of the FRE is to ensure that evidence used in U.S. courts is not unduly prejudicial to either side, and that what is used in the courtroom is valid in the eyes of the law. As such, FRE rules have to be followed from opening statements to closing arguments.
Common Objections and Why They Matter
Just as there are a number of different grounds for dismissal of claims in motions practice, there are a number of different objections that can be made during trial. Most of these will be made based on the Federal Rules of Evidence, so it’s helpful to be familiar with them. In fact, there are only about 20 common objections, depending on how you count them, all governed under the FRE. The first and most common objection is hearsay (FRE 802), which has a few limited exceptions (FRE801). The general rule is that you cannot use a statement made outside of the proceedings to prove the truth of the matter in question. However, there are a couple exceptions that are worth knowing; if the statement was made by a party against itself, it can be called an admission by a party opponent (FRE 803(a)(1)), as long as it’s being used against that party. There’s also an exception for a party’s own statement against itself (FRE 801(d)(2)(A)), an opposing party’s statement made in an official capacity (FRE 801(d)(2)(C)), or a statement made by an agent or employee of a party (801 (d)(2)(D)). The FRE are applied liberally under some standards, so there’s a chance that hearsay will come up on the other side of the bench as well. Other common objections asked in trial are leading the witness (FRE 611(c)), no personal knowledge (FRE 602) hearsay (FRE 802), to compound (FRE 403), and argumentative (FRE 402). These objections can be made at any point in trial, and can be helped by finding out some information about the examiner before going into trial. For example, if the examiner speaks quickly/jumps to different topics or uses offered materials, asks lengthy questions that could be leading and compound, or has his hand on the attorney’s shoulder, etc., those actions can be objectionable. Of course, there are other reasons to object, many of which might be more subtle. Judges might dismiss some of the questions that are being asked or stop the question and testimony before continuing. That’s to be expected; every judge has his or her own style, and they won’t always agree on objections. Still, the specific grounds for the objections listed above are commonly enough grounds for a court to sustain the objection.
List of Common Evidence Objections
Hearsay
Hearsay is an out-of-court statement by another person that is offered to prove the truth of the matter asserted in the statement.: "The dog bit me," admitted through a witness who heard a 3rd party say it. Does not apply to a statement offered to prove its falsity like "My uncle tried to kill me." Also does not include a prior statement by a witness who testifies at the trial.
Relevance
This is testimony or evidence that has no bearing on the case.
Speculation
Witnesses cannot testify to what they think may have happened or what they think the defendant is thinking.
Opinion
Yes/No questions, assuming facts not in evidence, assuming facts are true about the law.
Improper Opinion
When a non-expert witness gives testimony on matters that only experts can testify to, it is improper opinion testimony.
Legal Conclusions
Witnesses should not be allowed to give their legal conclusions. "That’s a felony." That is a legal conclusion.
Lack Personal Knowledge
A witness must have personal knowledge of the issues they’re testifying to.
Vague and Ambiguous
A question that has so many different definitions and could confuse the witness is vague and ambiguous. These types of questions should be objected to.
Leading Question
Looks like you were drinking beer before you got in the car, right? Leading questions, the answer is already given within the question.
Calls for Narration
A question that calls for the witness to tell a story instead of answering the question is narration. The witness may just keep going after the lawyer stops at "yes" or "no."
Unduly Suggestive
You’re being unduly suggestive even though we haven’t established the witness doesn’t know what they’re talking about, yet.
Compound Question
Are you trying to ask two questions in one? Or three?
Improper Character Evidence
Witnesses are not allowed to give opinion on someone’s character when the character is not in dispute.
Conclusionary Questions
What kind of question is "was the light red"? Yes, and no. It’s a conclusion. "Is this the same as the other light?" Answer is still yes or no.
Calls for Narration
Like the above, calls for narration, unless "A, B, and C, actually were true." And "is he a human being?" That is going to be a narration because it is a pretext for narration.
Argumentative Questions
Argumentative questions are argumentative even if the answer was not argumentative.
Expert Witness
All of these witnesses should be properly qualified by the court for the jury to see them as an expert.
Successful Objecting Methods
Essential Federal Rules of Evidence Objections Cheat Sheet
Timing
A party can object to the admission of evidence at any point in the proceeding so long as the basis for its objection is reasonably apparent. For example, if a party did not know until the witness testified that the witness was actually drawing a connection between two documents that a foundational predicate was lacking, it could object to the introduction of that evidence as lacking the proper foundational predicate when the party learned that information. All that said, there are strategic reasons for our practice to object in some instances and not in others. The most important consideration is trial strategy. First, there are some instances where you would want to avoid interrupting the trial with an objection. This is especially true when the witness is nervous or testifying in an unhelpful manner. It’s arguably to your advantage to let the witness continue testifying based on the idea that it will become obvious to the jury that he or she is unhelpful. Secondly, there are sometimes reasons why you would want to allow certain kinds of evidence or testimony into the record, even though perhaps it was inadmissible. You may want to let some of the evidence in and risk it being cured by an instruction or by a subsequent statement by a different witness. Practically speaking, this is often the case for prior inconsistent statement attack evidence. A witness that is not necessarily great for your side may make a statement that you are able to use against them, but you can’t get into. So, for that scenario, it might be in your best interest to avoid interrupting the witness and raising an objection. Rather, you would want to wait until the witness has finished, and then during your re-direct, get at the fact that the witness’ statement from a few moments ago was inconsistent with a statement made previously. In that situation, you may not win on the objection per se, but you can still get the consistency evidence in by eliminating the prior inconsistent evidence. As we saw in a recent trial, sometimes the jury is actually appreciative that the trial is not stopped with an objection.
Articulation
In terms of specifically making the objection, you’d want your objection to be short and to the point. You want to avoid making do on a speaking objection. Even if you think that the speaking objection is apparently obvious, you really don’t want to be left at the end of the case and then have opposing counsel argue that it was entirely unclear what the objection was about and therefore the objection shouldn’t matter. In short, you’d want to be certain in your mind what you’re objection is about before the objection is made. Cases are somewhat split on whether an objection must be made in a specific way and a specific time. According to the Fifth Circuit, there is a sufficient objection under Rule 103(a)(1) when the court is able to understand what the objection is about. The Sixth Circuit is a little stricter. According to that court, an objection is sufficient only if the person "states the specific grounds upon which objection and exclusion of evidence is desired." The Mehann v. Galley Order of the Eastern District of Kentucky is also in line with the Sixth Circuit’s opinion, as according to that requirement, the objection must state both the legal rule being violated, and the nature of the objection. On the other hand, the Third Circuit does not require that a party identify the legal rule being violated.
Objecting to Questions
The method of objecting to hearsay is to object to the question being posed to the witness. So, when you object, you would want to simply state the word "objection" followed by "hearsay."
Objections – An Example
Imagine this practical scenario, which could play out in any courtroom across the United States:
Defense attorney: "Now that you’ve broken up with the defendant, do you intend to marry again?"
Attorney for the party that has called this witness (let’s call her Rachael, for argument’s sake): "Object! Calls for a legal conclusion."
Trial judge, after hearing argument: "Sustained. Next question."
Attorney for the party that has called this witness: "I have nothing further . "
Now the judge gives the jury the instruction not to "consider anything in the trial that the judge kept from them by ruling it was not evidence." The judge does not provide a running list of what things it correctly excluded. It is not their job to remember what the judge excluded. And they won’t. Then the judge instructs the jury to ignore all of Rachael’s testimony – if they heard it.
The moral of the story is that it is important to object.
Quick Tips
These quick reference tips for you to use at a trial or in an evidentiary hearing. If you are questioning or cross-examining a witness and you think that he or she is going to say something that is going to be objectionable, you really need to do 2 things: These quick reference tips won’t give you information on the theory behind the rule, its limitations, or its history. But it doesn’t matter to you as long as you know that the Rule exists and you have heard it before. The approach works.
Additional Reference Material for Lawyers
Evidentiary objections can be a nuanced issue, and there are much more complex rules of evidence than those presented in this cheat sheet. For those who want to deepen their knowledge of evidence and its application at trial, there are numerous sources available:
Legal Texts
Your state Bar association may offer a guide to evidentiary issues, so check with them.
State-Federal Judicial Education Center . "Federal Rules of Evidence (2007-2011)." Standardized Forms, Federal Judicial Center, 2011: 1-187.
Pope, Jennifer McClearen. Lawyers’ Desk Book of Evidence. Dallas, TX: Michie Press and the State Bar of Texas (1993).
Trial Evidence: The Objection Book. Dallas, TX: West Group and the State Bar of Texas, 1992.
Websites
Evidence course materials and objects from the National Institute of Trial Advocates can be found at www.nita.org.