Are reasons for objections during a courtroom procedure codified, or are they just by convention? I imagine these are taught in litigation courses in law school (IAONAL) but where is it authoritatively written that this is binding on all parties?
Perhaps it relates to this, which I undrstand is codified?
The question is, how long and detailed is this codification?
Australian lawyer here. US and other law no doubt varies.
Here, there is no codified list of objections or rules about precisely what words must be used.
You are simply saying, in shorthand that your opponent and the judge understands, why that particular question or answer doesn’t comply with the law of evidence.
That law is partly codified in Australia but case law also plays an important part.
One thing we don’t do is call out “Objection!”
Quite long and quite detailed:
Evidence is definitely taught as its own subject, and the basis for a lot of objections comes directly from that material. There are also objections that are more fully fleshed in rules of procedure for civil or criminal cases. There are rules for those (Federal Rules of Civil Procedure | Federal Rules of Civil Procedure | US Law | LII / Legal Information Institute and Federal Rules of Criminal Procedure | Federal Rules of Criminal Procedure | US Law | LII / Legal Information Institute for federal law).
You can take several courses in the details of these procedures. All of evidence, basic civil and basic criminal procedure are required courses.
By the time you’re practicing, you do have a formal grounding in at least the general idea of what the things are you can object to. But in practice these things are completely different beasts, of course, and there’s a whole different shorthand and set of terminology for how they work in a courtroom. The things that come out of an actual practicing criminal lawyer will only sometimes sound like anything you heard in law school.
Certainly not all objections concern evidence - tho many do.
Yeah - that is such a silly trope in legal dramas, where the lawyer does not express the basis for their objection.
Standard response to most objections, “I’ll take that under advisement.”
What do you do instead?
IANAL
AIUI you cannot appeal a question that was not objected to during trial (in the US). I guess the appeals court feels if you didn’t bother to object in the original trial you have no basis to complain about it later (an appeals court is not there to re-try the case but to say an error was made in the original case). This would suggest it is best to object rather to not object. I am sure an attorney could annoy a judge by objecting to every thing they can and that would not help their case.
This perhaps was most famously done in the case of Batson v. Kentucky (1986). As the podcast More Perfect tells it, during Batson’s trial the prosecutor used their peremptory challenges to remove all African-Americans from the jury. Batson told his defense attorney to object. The laywer said you cannot “object” to peremptory challenges. Batson said to “object anyway” and, as a result, the case made it to the Supreme Court and lead to what are now called “Batson challenges” (which, unfortunately, may have made things worse).
That’s a good summation for the American legal system, too.
Really? We do that in the U.S. If it’s an obvious objection, you may not even need to say anything else.
Usually, though, you invoke it by staring “objection” and then providing a reason (I.e. “objection, leading*” or “objection, hearsay”)
*On direct examination (asking your own witness questions) you aren’t allowed to ask a question that suggests the answer, such as “isn’t it true you went to the bank yesterday?” That’s called a leading question. These are permitted only on cross-examination.
For real? That confuses me.
“I’ll take that under advisement” in courtrooms I appear in is judge-speak for “I’m going to research this issue (or ask a colleague) before I make a decision.” It’s commonly made at the end of an evidentiary hearing, where the judge issues a written ruling a few days or weeks later.
But if we’re in a testimonial hearing, and a lawyer objects to a question, we can’t proceed until we get the judge’s ruling- either the objection is sustained, and the question is improper, or the objection is overruled, and the witness must answer.
This is another good point. Objections must be made to “preserve the record” for later appeal (unless the errors complained of are considered ‘fundamental’).
And, yes, the appeals court takes the position that you have no basis to raise most issues unless you first objected at trial.
Why?
For judicial economy, it makes sense that we first try and fix legal mistakes when they happen instead of always requiring the time and expense of appeal. In theory, if you are going to win an appeal, you should be able to convince a trial court judge based on the same legal argument.
Additionally, if you could wait to raise issues in an appeal, you might be inclined to “try your luck” at trial with the knowledge that you had a do-over anyway. The justice system is backlogged enough, and they don’t want people to use this type of strategy.
Sorry. And my area is administrative law, so I’m extremely ignorant about courtroom dynamics. And my hearings are non adversarial.
Often an attorney will raise an objection, wishing to preserve it for potential appeal. In my area, when an attorney is arguing hearing procedure, they generally have a shit case. 99.99% of my cases turned on the facts. Most objections I hear are theatrics for their clients.
I shoulda stayed silent, given my limited expertise.
I disagree. There are different types of courts and a myriad of procedures. Thanks for your insight.
“My Lord, I don’t like to interrupt my friend in his cross-examination, but I need to raise my concern with his question…”
At least, that’s how senior counsel did it in a trial where I was junioring.
Stand up to indicate it’s your turn to speak, then state your objection in a sentence or two.
“Your Honour, I object to my learned friend leading on this point.”
Yeah, in an American court, you’d both be laughed at.
(We’re that uncouth)
…
In fairness to the United States, many judges takes a dim view of “speaking objections”, which is an objection that might give the witness (perhaps your witness) clues on what to say.
Many judges only want to hear the legal basis for the objection. You say “objection” to stop tbe answering of the question; the judge pauses, hears your legal reason (hearsay, irrelevant, asked and answered, outside the scope of direct examination, leading, compound question, lack of foundation, facts not in evidence, calls for speculation…), and then rules.
Nothing more.
Many things are not reversal error, even if they are error. The “art rather than science” of being a trial lawyer is figuring out when not to object to a question that might be technically improper. Leading questions, for example. It’s easy to get a judge to tell your opponent to rephrase the question," when they’re leading a friendly witness. However, it can often be much less impactful on the jury to hear the testimony that way. So, you have to read the room and figure out if you’re better off objecting, or better off letting it drone on. Law students are taught to object like Palov’s dog, and some lawyers never get past that.
In other situations, I jury might (rightfully) think you’re hiding something from them if you object a lot. We like to appear to be hiding nothing, and to be happy to let the jury hear whatever our opponent wants to tell them. Sometimes, letting things play out without objections opens the door for our side to do something that would otherwise be blocked.
If we have to object over something important, it’s nice to phase it in a way that doesn’t look like your keeping something from the jury, but helping the judge. “Objection, your honor, this line of questioning violates your pretrial order.”
As others have pointed out, the Rules of Evidence cover most (but not all) objections you’d hear at trial. They are authoritative, and binding on all parties.
I was surprised to hear from some of my older colleagues that the Rules are relatively new. The Fe975. Only 12 years before I started practicing. Yet, I had the perception they were centuries old. Before the Rules were enacted, lawyers had to rely on case law and statutes to make their objections.
Erle Stanley Gardner was a top lawyer before he started writing. His Perry Mason books were meticulous in recording proper courtroom procedure. (Other than his habit of getting surprise confessions during discovery hearings.) He made every other legal mystery in the era seem like dimwitted slapstick comedy. When Mason called for an objection, you could be sure he would state the reason, and the reason would almost always be one of the ones you mentioned. (There may have been a third as well. It’s been 60 years.)
When I served on a jury, the DA did say “objection” a few time. In some cases, he didn’t even give a reason because the reason was obvious.
Most memorable was when they blatantly asked a witness if she framed the defendant. This was not brought up except in the defenses opening statement.
DA just said “objection”.
Another time he objected to a defense question’s wording. They rephrased the question, getting another objection. Finally they gave a question that raised no objection.
The movies would have me believe that leading questions are allowed only with a hostile witness.
Leading questions are only allowed with one of your own witnesses if they’ve been declared a hostile witness, but always allowed in cross of the opposing party’s witness (at least them’s the rules I’m familiar with).
My understanding is that’s because you can essentially cross-examine a hostile witness.
The basic rule is one meant to ensure fairness and truthful testimony. You can’t ask leading questions of your own witnesses, because then you (the lawyer) could get them to tell the story exactly how you want it told.
You can ask leading questions in cross-examination (and some suggest you should only ask leading questions.
You can also “hostile” a witness you have called. If they are avoiding answering your non-leading questions, you get the court to declare them to be hostile and then the “no leading questions” rule doesn’t apply.