Frank Mascagni 2014-01-16 06:54:11
Litigation Tips Frank Mascagni, III has been practicing criminal law for over 36 years. He is recognized by Best Lawyers in America® , as a Kentucky Superlawyer, as a Top Lawyer by Louisville Magazine and as a AV Rated Lawyer by Martindale-Hubbell. His address 701 West Jefferson Street, Louisville, Kentucky 40202-2742 and he can be reached at 502-583-2831. Unfortunately, the number of criminal jury trials in the state of Kentucky has been on the decline for the last nine years. Reproduced is a table which I received from the Kentucky Supreme Court at a recent presentation by Chief Justice Minton. Nevertheless, as litigators, we all should prepare each case as though it was going to be resolved by a jury. Reproduced below is an excellent list of objections I received during a presentation after Kentucky adopted the Kentucky Rules of Evidence on July 1, 1992. Each litigator should copy this “cheat sheet” and bring it to court so that it is available during your litigation (should you want to lodge an objection with a basis other than “ouch” or “that hurts”). Good luck! Kentucky Evidentiary Objections Your objection to evidence must be timely and specific. If not, your objection may be waived (Rule 103). Make your objection succinctly and in a clear, firm voice. EXAMPLES: “Objection, Your Honor, the question calls for hearsay.” “Objection, leading.” While you generally voice your objection in front of the jury, do not argue your objection in front of the jury. If argument is required, request permission to approach the bench, then present your argument. Use the Kentucky Rules of Evidence to bolster your argument. Below is a list of most of the common objections, a brief explanation, and authority for the objection based on the Kentucky Rules of Evidence. 1. Ambiguous – Confusing question that is capable of being understood in more than one sense. Rule 611(a). 2. Argumentative – (1) Counsel’s question is really argument to the jury in guise of a question (Example: Counsel summarizes facts, states conclusion, and demands witness agree with conclusion); or (2) excessive quibbling with witness. Rule 611(a). 3. Asked and Answered – Unfair to allow counsel to emphasize evidence through repetition. Greater leeway on cross-examination, however. Rule 611(a). 4. Assumes a Fact Not in Evidence – Fact not testified to contained in the question. Rule 611(a). 5. Authentication Lacking – Proof must be offered that the exhibit is in fact what it is claimed to be. Rule 901(a). 6. Best Evidence Rule – If rule applies, original document must be offered or its absence accounted for. If contents of document are to be proved, rule usually applies. Rule 1002. 7. Beyond Scope of Direct – Rules of Evidence allow cross-exam on any relevant matter, including credibility, however, judge has discretion to limit such questions. An objection may prompt judge to exercise this discretion. Rule 611(b). 8. Compound – More than one question contained in the question by counsel. Rule 611(a). 9. Conclusion – Except for expert, witness must testify to facts within personal knowledge; conclusions are for the jury – and counsel during closing argument. Rule 602; 701. 10. Confusing and Unintelligible – Unfamiliar words, disjointed phrases, or confusing evidence. Rule 611(a). 11. Counsel Testifying – Counsel is making a statement instead of asking a question. Rule 603. 12. Cumulative – Judge has discretion to control repetitive evidence. Repeated presentation of the same evidence by exhibits or by more witnesses is unfair and wastes time. Rule 611(a). 13. Foundation Lacking – No proper foundation for testimony or exhibit. (Example: Offer of “recorded recollection” without showing failure of memory; similar to objection for lack of authentication or personal knowledge.) Rule 602; 901(a). 14. Hearsay (question) – The answer would elicit hearsay, and no exception has been shown. Rule 802. Hearsay (answer) – Question did not call for hearsay, but witness gave it anyway. Consider making a motion to strike and asking judge to instruct jury to disregard the response. Rule 802. 15. Impeachment by Improper Means – Methods of impeachment are limited and specific. Rules 608-610. 16. “Improper” – When you are sure the question is improper, but cannot think of the correct basis for an objection, try “Objection, Your Honor, improper question.” Judge may know the proper basis and sustain your objection, and if the judge asks for your specific basis, you have gained time to think about it. To be used very infrequently. Rule 103( c); 611. 17. Improper Characterization – The question or response has characterized a person or conduct with unwarranted suggestive, argumentative, or impertinent language. (Example: “He looked like a crook.”) Rules 404-405. 18. Incompetent Witness – Lack of qualification such as oath or mental capacity. Also applies if judge or juror is called as a witness. Rule 601-606. 19. Irrelevant – Would not tend to make any fact that is of consequence more probable or less probable. Motion to strike may be appropriate. Rule 402. 20. Leading – Form of question tends to suggest answer. (Permitted, of course, on cross-examination). Rule 611 (c ). 21. Misquoting Witness (or Misstating Evidence) – Counsel’s question misstates prior testimony of witness. Similar to objection based on assuming fact not in evidence. Rule 103 (c ); 611(a). 22. Narrative – Question is so broad or covers such a large time period it would allow witness to ramble and possibly present hearsay, irrelevant or incompetent evidence. Judge has broad discretion in this matter, however. Rule 611(a). 23. Opinion – Lay opinion or inference which is beyond the scope permitted by Rule 701; personal knowledge lacking; or expert witness has not been qualified as such. Rule 701; 702. 24. Prejudice Outweighs Probative Value – At the bench, out of the jury’s hearing, argue that “the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” May apply to exhibits as well as testimony. (Don’t let the jury hear you say that the evidence is prejudicial–they may be impressed.) Rule 403. 25. Privileged – Answer would violate valid privilege (lawyer-client, husband-wife, clergyman, etc.) Rule 501-508. 26. Speculation and Conjecture – Question requires witness who lacks personal knowledge to guess. Rule 602. 27. Unresponsive – Answer includes testimony not called for by the question. Especially applicable to voluntary response by hostile witness. Note: An objection based solely on this ground is generally deemed appropriate only if made by the examining attorney; therefore, opposing counsel should state some additional basis for the objection. Rule 103 (c ); 611(a).
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