COMMON OBJECTIONS

Ambiguous Question
RULE: derived indirectly from 611(a)
WHAT: Ambiguous if it may be interpreted in different ways, is vague or so unclear that it is likely to confuse the jury
or the witness
RESPONSE: rephrase
Argumentative Question
RULE: derived indirectly from 611(a)
WHAT: opposing counsel is attempting to make a jury argument, or to summarize, to draw inferences from, or to
comment on the evidence, or is asking the witness to testify to his own credibility.
EXAMPLE: Dr., youre a hatchet man down here for the DAs office, arent you?
RESPONSE: rephrase
Asked and Answered
RULE: derived indirectly from 611(a)
WHAT: question has already been asked and answered and is not likely to elicit additional evidence of probative value.
RESPONSE:
1. witness has not yet answered this question
2. opposing counsel asked this question, I have not
Assumes Facts not in Evidence
RULE: derived indirectly from 611(a)
WHAT: questions assuming facts not in evidence are impermissible. Counsel cannot testify by assuming other facts.
Evidence admissible through witnesses and real evidence only.
EXAMPLE: where was X sitting in the car? Objectionable if no evidence that X was sitting in the car.
RESPONSE:
1. although the particular fact has not be directly proved, its existence may reasonably be inferred from _______,
which has been proved.
2. The fact will be proved during the testimony of _______.
Authentication: (p 61 in outline)
o RULE: 901
o OJBECTION: This evidence has not been authenticated as required for the foundation of admitting evidence under FRE
901(a).
o RULING: To admit this into evidence, it must be authenticated by proving evidence sufficient to support a
finding that the matter in question is what you claim it to be. (SEE 901(b) for illustrations of what is
acceptable.)
Show it is unique/has distinctive characteristics 901(b)(4)
Establish chain of custody
Best Evidence (p 72 outline)
RULE: 1001-1008
WHAT: you want the best evidence from the other side.
Best Evidence Rule only applies when the content of a document is central to the resolution of a case.
o 1001: Definitions
o 1002: Requirement of Original: you need the original of a writing, recording, or photograph
RESPONSE:
This isnt central to the case
It falls within an exception of another rule.
o 1003: Admissibility of Duplicates: unless a genuine question is raise as to the
authenticity of the original or it would be unfair to admit the duplicate, a duplicate is
admissible.
o 1004: Admissibility of other evidence of contents:
Originals lost or destroyed

o
o
o
o
o

Original not obtainable

Original in possession of opponent
The writing, recording, or photo isnt closely related to a controlling issue.

1005: Public Records

[continued on next page!]
1006: Summaries
1007: Testimony or Written Admission of Party
1008: Functions of Court and Jury
WHAT: When Judge decides and when Jury decides questions of evidence.
Trier of Fact (Jury in most cases):
o Whether the fact ever existed
o Whether another writing, recording, or photograph produced at the trial
is the original
o whether other evidence of contents correctly reflects the contents,
the issue is for the trier of fact to determine as in the case of other
issues of fact.
RESPONSE: It doesnt fall within one of these 3 trier of fact exceptions, therefore, the judge should
decide.

Character (p 15 outline)
WHAT: character not at issue here, or questions calls for inadmissible character evidence
GENERAL OBJECTION: Witness lacks personal knowledge about the character, reputation, or doesnt have knowledge
to form an opinion of the accused, victim or witness. (602 and 405)
o WHAT: Need adequate basis and experience for personal knowledge.
o RESPONSE: Go back and lay the foundation for the witnesss personal knowledge.
General Objection: Specific instances of persons conduct is not an essential element of the charge or defense. Rule
405(b)
GENERAL Objection: You cant introduce Prior Bad Acts
o You can per Prior Bad Acts: Rule 404(b)
You can introduce prior bad acts, crimes, or wrongs for other purposes besides to prove the character
of a person BUT you can to show proof of motive, opportunity, intent, preparation, plan knowledge,
identity, or absence of mistake or accident
Provided that.
o Upon request by the accused
o The prosecution in a criminal case shall provide reasonable notice in advance of
trial, or during the trial if the court excuses pretrial notice on a good cause shown,
o Of the general nature of any such evidence it intends to introduce at trial.
OBJECTIONS:
o Character of Accused:
Not a pertinent character trait. RULE 404(a)(1)
RESPONSE: Just say how it is relevant
o Building a foundation for something else.
WHAT: The evidence in general needs to be pertinent to the trial or crime in some fashion.
Prosecution offering evidence of defendant's pertinent character trait before defendant offered evidence
of such character trait; therefore, the evidence is not in rebuttal. Rule 404 (a)(1) (Prosecution offering
character evidence before defendant does)
RESPONSE:
WHAT: 404(a)(1): If defendant introduces evidence of his own GOOD character, the
Prosecution can intro evidence of Ds BAD character.
o OR if evidence of a specific trait of character of the victim is offered by the
defendant, the prosecution then may intro evidence of that same trait of character
of the accused.
REMEMBER that with 405
o On direct, can only testify about reputation or opinion
o On cross, can only be about specific instances.
The method of introducing evidence is incorrect. The defense is trying to show specific instances!

RESPONSE: This is not a specific instance, this is reputation or opinion. (Rule 405(a)).
RESPONSE: This is cross and specific instances of conduct is allowed on cross! (Rule
405(a))
RESPONSE: This is allowed because this is a case in which the character or trait of character
is an essential element of a charge! (Rule 405(b)).
[continued on next page!]

OBJECTION: This isnt habit or routine practice evidencethis is evidence of a specific trait or
character! (Rule 406)
WHAT: Habit is generally admissible to prove conduct on a particular occasion was in
conformity with habit or routine practice.
o Character: generalized description of ones disposition in respect to a general (moral)
trait such as honesty, temperance, or carefulness.
o Habit: ones regular response to a repeated, particular situation. Specific and no
moral implication at all.
RESPONSE: Show that it is habit number of times, etc.
o OBJECTION: You cant bring in character evidence of the victim!
RESPONSE: You can under FRE 404(a)(2) if you are the Defendant to show innocence in a criminal
case.
RESPONSE: You can if you are the prosecution if you are rebutting victim character evidence offered
by the accused in a criminal case. FRE 404(a)(2).
RESPONSE: As a prosecution, you can show peacefulness of the victim if the defense alleges that the
victim was the first aggressor in a homicide case in criminal case.
REMEMBER that with 405
On direct, can only testify about reputation or opinion
On cross, can only be about specific instances.
o OBJECTION: The prosecution cant bring in character evidence of the victim!!
RESPONSE: You can if you are the prosecution and if the defense brought the character of the victim
up first! FRE 404(a)(2).
RESPONSE: As a prosecution, you can show peacefulness of the victim only if the defense alleges that
the victim was the first aggressor in a homicide case in criminal case.
Sexual offenses: Rules 412-415 (p 21 outline)
o Rule 412: Victims past sexual behavior or alleged sexual predisposition (generally inadmissible, w/ exceptions)
o Rule 413: Evidence of Ds similar crimes in sexual assault cases (admissible)
o Rule 414: Evidence of Ds similar crimes in child molestation cases
o Rule 415: Evidence of Ds similar acts in civil cases concerning sexual assault or child molestation

Competency: (p 10 outline)
o FRE 601 assumes everyone is competent to testify, unless it can be shown . . . [see objections below] (Lightly)
o General OBJECTIONS:
o This witness does not have capacity for accurate testimony
Capacity to recall (US v. Lightly)
o This witness has not demonstrated a disposition for truthfulness
Child witness may or may not be competent here (Ricketts v. Delaware, which Bowman strongly
disagreed with)
o This witness refused to testify under oath, which is required by FRE 603.
o This witness does not have personal knowledge of the matter as required by FRE 602.
Compound Question
RULE: derived indirectly from 611(a)
WHAT: combines two or more distinct inquiries, likely to be confusing to the witness and misleading to the jury.
RESPONSE: rephrase
Evidence leads to Confusion of the Issues
OBJECTION: FRE 403 permits the judge to exclude relevant evidence if its probative value is substantially outweighed
by its tendency to confuse the issues or mislead the jury.

Confusing Question
RULE: derived indirectly from 611(a)
WHAT: under rule, court is directed to exercise reasonable control over the mode of interrogating the witness as to
(1) make the interrogation effective for the ascertainment of truth.
RESPONSE: rephrase

Cumulative Evidence
OBJECTION: This evidence, although relevant, should be excluded per FRE 403, because it is a needless presentation
of cumulative evidence, and it is a waste of time.
EXPERT TESTIMONY (p 58 outline)
OBJECTION: This person has not demonstrated that he is qualified to testify as an expert per FRE 702.
o RESPONSE: Per 702, an expert does not have to have any specific degree or detailed list of credentials. He
must only have acquired scientific, technical, or other specialized knowledge through skill, experience,
training or education, and I have laid the proper foundation to demonstrate that this witness is qualified per this
standard.
OBJECTION again: But the expertise must relate to the matter at issue, or the witness is not an
expert for the matter at hand.
RULING: look at what the witness is claiming to be an expert in and see if he qualifies:
No certain degree or credentials required
Need proper foundation
Must relate to the matter at issue
Property and business owners ordinarily are sufficiently qualified to be experts on the value of
their own property or business
OBJECTION: expert is attempting to testify on what the controlling law is.
o RESPONSE: He is simply applying the principles and methods in his expertise to the facts of this case and
giving his expert opinion.
o RULING: Expert may not testify as to what the law is. Per FRE 703, the expert witness may only testify in a
manner to help the jury understand the evidence or determine the facts in this matter. He may not tell them
what to conclude under the law.
OBJECTION: This expert testimony is based on inadmissible evidence.
o RESPONSE: Per 703, the facts that the expert reasonably relies upon in forming his opinions need not be
admissible if they are of a type upon which experts in the field reasonably rely on in forming opinions.
OBJECTION: That may be, but 703 also indicates that you may not disclose those facts to the jury
unless the court determines that their probative value outweighs their prejudicial effect.
RULING: Expert can testify based upon the inadmissible facts, but I (will/will not) allow the facts
themselves to be presented to the jury (due to 403 analysis).
OBJECTION: This experts opinion as to what his colleagues opinion on the matter is based on hearsay.
o RESPONSE: My expert is testifying as to his knowledge of the standard of care in his field of expertise, which
is permitted and necessarily based somewhat on hearsay from other experts in this area.
o RULING: Even though it seems unsatisfactory because counsel cannot cross-examine the other so-called
experts who this expert bases his opinion on, it is the general rule to allow this sort of opinion testimony.
OBJECTION: Per 704, an expert witness may NOT give his opinion as to whether the criminal defendant did or did not
have the required mental state for the crime charged (or the defense asserted).
OBJECTION: I have not seen this alleged study or data that he expert claims to be basing his opinion on.
o RESPONSE: Per FRE 705, the expert is not required to testify as the underlying facts or data, unless the court
orders otherwise. The court has not required that disclosure in this case.
o RULING: Counsel may ask the expert to testify to or disclose the underlying facts or data on cross-exam, and I
will order the expert to comply with that request.
OBJECTION: This type of study that the expert relies upon is not generally accepted in this field, and is therefore not
reliable under the Frye test.
o RESPONSE: Daubert superseded Frye, and the court now looks at the Frye test as merely one factor in
determining reliability. And FRE 702 now closely matches this approach. Per the expanded Daubert test, this
technique is reliability. (SEE p. 60 of outline for entire test and APPLY IT.)

OBJECTION: Daubert was applying to scientific testimony, and this expert is only an expert in his
technical field.
o RULING: Depends on the facts. See the Daubert test. [IF this is STATE LAW, 22 states still use the Frye test
instead of Daubert!] Per Kumho Tire, the Daubert standard extends to ALL expert testimony, not just
scientific testimony.
OBJECTION: The courts reliability determination is not even based solely on Daubert analysis.
o RESPONSE/RULING: Per Kumho Tire, the court has discretion to deviate somewhat from the Daubert
analysis and may apply its own discretion as well.

Lack of Foundation
Habit and Routine (p 18 outline)
o See Character evidence section
o FRE 406 evidence of habit or routine IS admissible
Harassing the Witness
RULE: 611(a)
WHAT: rule directs court to exercise reasonable control over the mode of interrogating the witness so as to (3) protect
witness from harassment or undue embarrassment
EXAMPLE: delving into personal life, when not relevant or unnecessary. Badgering, demeaning the witness
RESPONSE: rephrase
HEARSAY (p 25-47 outline)
RULES: FRE 801-804; lots of case law. See notes!
OBJECTION: This is hearsay!
o RESPONSES asserting that the statement is NOT hearsay:
This is NOT hearsay, because is not a statement. It is neither an oral or written assertion, nor nonverbal
conduct that is intentionally asserting something.
This is NOT hearsay, because it is not used for the purpose of proving the matter it asserts
NONhearsay purposes: (p 26 outline)
o Impeachment
OBJECTION: cannot be used as substantive evid!
o Verbal acts
o Effect on listener or reader
o Verbal objects
o Circumstantial evidence of state of mind
o Circ evidence of memory or belief
This is NOT hearsay because it is defined as nonhearsay in FRE 801 (p 28 outline)
Can come in as substantive evidence
OBJECTION: Declarant must testify and be available for cross-examination
Prior inconsistent statements (by witness) FRE 801(d)(1)(A)
o OBJECTION: must have been made under oath
o MO rules identical: p. 29 of outline.
Prior consistent statements (by witness) FRE 801(d)(1)(B)
o Not required to have been made under oath
o OBJECTION: Can only be used to rebut charge of recent fabrication or improper influence
or motive
o OBJECTION: But statements made after alleged fabrication/improper motive are NOT
admissible. (Tome v. US). Improper motive must arise after the original statement but before
current testimony.
Identification FRE 801(d)(1)(C)
o Prior statements of identification.
o Would include admissibility of a police sketch. (State v. Motta)
Admissions by party-opponent FRE 801(d)(2) (p 30 supp)
o Individual admissions 801(d)(2)(A)
OBJECTION: These statements were made during a criminal plea colloquy!

 RULING: They can come in as evidence in a civil suit.

Adoptive Admissions 801(d)(2)(B)
OBJECTION: Client didnt say anything, so he didnt admit anything.
RULING: Tacit admission gets in (US v. Hoosier) IF:
o Party heard the statement, and
o Matter was w/in his knowledge, and
o He would likely have replied if he did not mean to accept what was
said.
o **not post-Miranda warning! (Doyle v. Ohio)
o Authorized admissions (by speaking agents) 801(d)(2)(C)
OBJECTIONS:
Person was not an agent or servant of my client
[continued on next page]
The subject matter of the statement was not w/in the scope of the declarants
employment
The statement was made before/after (not during) the agency or masterservant relationship
o Admissions by employees and agents 801(d)(2)(D)
Different from 801(d)(2)(C), b/c agent is given authority to act (usually an
employee), but not to speak
RULING: Admissible against principal or employer as long as the statements are
within the scope of their authority or duties.
o Coconspirator statements 801(d)(2)(E)
OBJECTIONS:
Nobody was charged with conspiracy in this matter!
o RULING: not necessary in order to apply this rule. Doesnt even
have to be a criminal case.
Conspiracy never existed, or if it did, this witness was not a co-venturer in
the conspiracy. I dont even know this guy!
o RESPONSE: This foundation only requires proof by a
preponderance standard. And you dont have to know the guy for
him to be a member of the conspiracy.
o RULING:
Conduct a James Hearing (p 34 outline)
Must have more evidence than merely the contents of the
hearsay statement alone to establish this foundation. FRE
801(d)(2)(E); (Bourjail v. US)
Can use this exception even if the parties dont know each
other.
o General OBJECTIONS for admissions:
The contents of the statement shall be considered but are not alone sufficient to
establish the declarants authority for In (c),(d), and (e)!
Declarant is not a party-opponent of the proponent.
Declarant does not have personal knowledge
RULING: doesnt need to! Admissible. (Mahlandt v. Wild Canid Center)
Cant admit one defendants admissive statement against his co-defendant as an
admission in a criminal case, b/c that violates Confrontation Clause. (Bruton v. US)
Possible RESPONSES/RULINGS:
o Cautionary jury instruction NOT good enough
o Only let co-defendant witness testify as to his own admission;
leave rest to jury. (J. Whites dissent in Bruton)
o Dont use the statement at all.
Admission in response to FRCP 36 request is not admissible.
RESPONSE/RULING: True, but other pleadings generally are.
RESPONSES conceding that the statement IS hearsay, but that there is an exception.
o This IS hearsay, but it is allowed per an exception under FRE 803 (p 34 outline)
o

Apply regardless of declarants availability!

Present sense impressions 803(1)
Does NOT require on part of declarant:
o Excitement
o Participation in the event
o Corroboration
OBJECTIONS:
o admissibility is limited to description or explanation of the event
RULING: Correct, according to plain meaning of the rule.
o the statement was not made contemporaneously with the declarants observation of
the event
RULING:
This is the Immediacy requirement (Nuttall v. Reading Co.)
Rule says made while the Declarant was perceiving the event or
condition, or immediately thereafter
[continued on next page]
Excited utterances 803(2)
Does NOT require participation on part of Declarant:
OBJECTIONS:
o The witness is doing more than just describing or explaining the event
RULING: Per the plain meaning of the rule, any statement that relates to
the event described can be admitted.
o The witness is relying only on the statements themselves to prove the startling event,
which must be proven before admitting the statements! (Circularity problem)
RULING: Although courts are split on this, U.S. v. Arnold rule is that the
party does not have to introduce independent evidence of the underlying
event.
o Several minutes passed between the event and the statement. He couldnt possibly
have still been excited. (immediacy requirement)
RULING: Depends on facts and whether I believe Declarant was still under
the stress of the event. Even lapses of time of a few hours can be okay.
(U.S. v. Arnold)
State of mind 803(3) (p 35 outline)
Then-existing physical condition
o Does not have to be made to a doctor.
o No immediacy requirement
Then-existing mental or emotional condition
o OBJECTION: This statement asserts a fact remembered. (ex: D is mad at me.)
o OBJECTION: This is an assertion of belief that someone else (my client) will do
something. That is not admissible.
RESPONSE: But if the statement was hes going to kill me, and
defendant claims he accidentally killed her, this can come in under state of
mind to show fear.
RULING: Probably dont admit. If admitted, do so with limiting
instruction that says jury cant consider as evidence of truth of statement.
(Declarants) Subsequent conduct (Hillmon Doctrine)
o OBJECTION: This is a fact remembered rather than a forward-looking statement.
RULING: If true, not admissible.
o OBJECTION: This is the declarants statement of a 3rd partys future conduct, and
the court shouldnt allow it because the House Committee on Judiciary doesnt!
RULING: This is not a settled issue. Hillmon would allow it, but courts
are split. The Advisory committee to FRE recommended adoption of the
Hillmon doctrine, and US v. Pheaster concluded that this was Congress
intent in passing FRE 803(3). Ill allow it.
Facts about declarants will

Allows in anything relating to execution or revocation of the will, behavior by family

members, mental state of decedent
Statements for Purposes of Medical Diagnosis or Treatment 803(4)
Not limited to statements to physicians! Extends to health care workers, good Samaritans and
family members
OBJECTION: This is a statement about fault.
o RULING: If so, maybe not admissible. But even if it does implicate fault, if it was
reasonably relied on by a physician in treatment or diagnosis and the declarants
motive in making the statement was consistent with that purpose, it IS admissible.
(Blake v. State). This exception allows in statements made for the purpose of
obtaining treatment and diagnosis, including statements about symptoms and the
cause or external source of the condition complained of.
Past recollection recorded FRE 803(5) [DOCUMENTS]
OBJECTION: the witness has not said that he has completely forgotten the contents of the
document.
o RULING: The rule applies to more than those things completely forgotten. It
includes things that the witness has insufficient recollection of.
OBJECTION: opposing counsel did not establish that the writing accurately reflects
knowledge or opinion the witness in fact held at the time the writing was made.
o [continued on next page]
o RESPONSE: Ask the witness to testify that he made or adopted the statement
while the matter was fresh in [his] memory.
OBJECTION: Preposterous! The document relied upon cannot be received as an exhibit!
o RULING: Correct. Can be admitted (read) into evidence but cannot be received as
an exhibit unless offered by the adverse party.
Business Records Exception FRE 803(6) (p 38 outline)
OBJECTIONS:
o This witness is not a records custodian or otherwise qualified to lay the foundation.
o This record was not regularly kept in the course of a regularly conducted business
activity.
o The person who made the record (witness) has no personal knowledge.
RESPONSE/RULING:
Person making the record need not himself be the one with
personal knowledge, as long as he received the information from
someone else who had the knowledge information transmitted
by such a person
But must know the source of the information in order ot know if
there was in fact personal knowledge (Petrocelli v. Gallison)
o Record was not made simultaneously with the events it concerns
RULING: does not have to be made simultaneously, only at or near the
time of the event
o This is not a business within the meaning of this rule.
RULING: Yes, it probably is. Doesnt require profit. See rule.
Absence of Entry in Business Records: FRE 803(7)
o

P 39 of outline.

Public Records & Reports: FRE 803(8)

Record/report must set forth:
o (A)Activities of the office/agency, OR
o (B) Matters observed and recorded pursuant to its legal duty, OR
OBJECTION: This is a criminal case, so matters observed by police
officers and other law enforcement personnel are excluded. (correct)
OBJECTION: This lab reported was prepared by an expert who is a fulltime gov. employee, and it was made for the purpose of getting a criminal
conviction, so it is inadmissible as hearsay against me now.

RULING: Correct per U.S. v. Oates, so gov. will have to get the
expert who prepared the report into court.
o (C) Factual findings resulting from an investigation made pursuant to its authority,
unless there is an indicated lack of trustworthiness
OBJECTION: this is a criminal action against a private party (not the gov),
so this prong doesnt apply to the defendant. (correct)
OBJECTION: this report contains evaluations and conclusions based upon
disputed evid, which is not a type of factual finding
RULING: Some courts disagree, and conclude that evaluations
and conclusions made by police officers are factual findings.
(Baker v. Elcona Homes; car accident, not criminal trial)
Other 803 exceptions

803(9): vital statistics (birth & death)

803(14): records of documents affecting interest and property

Ancient documents 803(16)

Market reports & commercial lists 803(17)
Learned Treatises: FRE 803(18) (p 40 outline)
o

Must be a live expert on the stand! Not just a book.

real property 803(14), (15), (20)

reputation evidence 803(19) & (21)
803(22): evidence of judgments of felony conviction

803(23): judgments on matters of personal, family, general history

[continued on next page!]

o
o

This is hearsay, but it is allowed per the Past recollection remembered exception (common law) (restricted by
FRE 612)

OBJECTION: That thing itself cant be admitted into evid!

RESPONSE: I dont need to admit it into evid, but it can be used to refresh the witnesss
memory.

RULING: Virtually anything can be used to refresh the witnesss memory. After inspection,
the adverse party can introduce any related portions into evidence.

OBJECTION: I havent seen this document .

RULING: FRE 612 requires adverse party to be able to inspect the writing and crossexamine the witness about it if it is in the interests of justice.

This is hearsay, but the Declarant is unavailable as a witness under FRE 804(a), so the hearsay statement is
admissible per FRE 804(b) (p 40 outline)

Former testimony 804(b)(1)

Must have been given as a witness at some hearing

OBJECTION: I did not have an opportunity and similar motive for prior cross-examination.
o

Dying declarations 804(b)(2)

Can only be used in a civil action or in a criminal prosecution for homicide

P. 42 of outline

Remember, Declarant must be unavailable!

FRE 804(b)(3): Statements against interest

No reasonable person in the declarants position would have made the statement unless he
believed it to be true.
OBJECTION: This statement may appear contrary to my clients interests now, but it was
NOT contrary to his interests at the time the statement was made. (if true, correct)
OBJECTION: There is no corroboration to indicate trustworthiness.
o RULING: This is only required when used against criminal defendants.
OBJECTION: Parts of that statement actually advantage or exculpate my client.
804(b)(4)statement of personal or family history

804(b)(6): statements admissible b/c of forfeiture by misconduct

When party intentionally made the Declarant unavailable, that unavailable declarants prior
statements come in. Judge decides this by preponderance standard.

OBJECTION: The court has not yet determined that this witness is even unavailable.
o

RULING: Must determine unavailability before deciding if party caused the

unavailability.

OBJECTION: My client may have caused the unavailability, but he certainly did not do so
intentionally.
o

RULING: Design or intent to procure unavailability is required, not merely

causation. (People v. Moreno). Unless the Defendant killed the witness; that is
enough evidence to support an inference of intent to silence the victim.

General OBJECTION: Declarant is not unavailable

RESPONSE: If a civil case: But your predecessor in interest had that opportunity.
(Lloyd v. Am. Export)

RULING: Judge determination per 104(a). See p. 40-41 of outline.

This is hearsay, and it is not admissible under 803 or 804, but it should be admissible under the FRE 807
Catchall exception. (p 43 outline) The statement is relevant, because it is offered as evidence of a material
fact. It is necessary, because it is more probative than any other evidence which I can procure through
reasonable efforts. Its admission will serve the general purposes of the Federal Rules of Evidence as well as
the interests of justice, but if it is not admitted it will be unfair to my client. Furthermore, it is reliable and
trustworthy according to its application to the Weaver factors of trustworthiness. [but must have given adversary
NOTICE]

10

OBJECTION: I was not given notice of this, or the notice did not include particulars, like the name
and address of the Declarant.

OBJECTION: This is not necessary, because other evidence can be used for this. It doesnt even
prove a material fact. Judges should only use this exception in extraordinary circumstances.

OBJECTION: This is not trustworthy.

RESPONSE: exhibits same factors as State v. Weaver (p. 44 outline)

This is hearsay, but it should be admitted because the Declarant is a child abuse victim. (p 45 outline)

RESPONSE: Only this statement would be adequate for these purposes, because it is more
probative than any evidence I can get through other reasonable means. It does tend to prove a
relevant, material fact, and if it was excluded, it would undermine the fairness of this trial.

Most commonly utilized child abuse exceptions:

Catchall exception FRE 807

rifle shot child victim exception
803(2) excited utterance
Medical statements 803(4)
Forfeiture provision 804(b)(6)
Allowing child witness to testify by depo or video (not in ct)
o OBJECTION: Admitting this hearsay is a violation of my criminal defendant clients Sixth Amendment right
to confront the witness against him, because the Declarant is not here to testify and be cross-examined.
RESPONSE: It is still admissible and does not violate the Confrontation Clause of the 6 th Am, because
it is not a testimonial statement. (Crawford)
RESPONSE: It is still admissible and does not violate the Confrontation Clause of the 6 th Am.,
because opposing counsel had an opportunity to meaningfully cross-exam the Declarant at an earlier
date. (Crawford)
RESPONSE: The statement is not testimonial, and is therefore admissible under Crawford, because it
was made for purpose of dealing with an ongoing emergency. It is the description of a present fact,
and I am not introducing it for the primary purpose of establishing or proving past events. (Davis)
o MISSOURI hearsay law (p 44-45 outline)
MOVE to STRIKE from the record if you objected!

IMPEACHMENT OF WITNESS (p 50 outline)

Bias Impeachment (p 51 outline)
o OBJECTION: Counsel is attempting to show that my witness is biased based merely on group membership.
RULING: No federal rule directly on point. However, if it is relevant, it is permitted per US v. Abel.
If it does tend to show bias, it is always relevant. (US v. Manske)
o OBJECTION: Counsel is badgering my expert witness in his attempt to show bias!
RESPONSE: I am not badgering him. I am asking him questions relevant for showing his bias.
RULING: Counsel cannot use cross-exam to badger or demean a witness (FRE 611(a)), but that is not
what is going on here. Counsel is allowed to ask questions relevant to uncovering the experts possible
bias. This includes questions about his income from testifying in this case, for the party in general, and
for similar parties. It also includes question about whether he experts to testify for this party again.
Impeachment by evidence of character for truthfulness (p 51 outline)
o OBJECTION: Refers to some trait of witness other than character for truthfulness. Rule 608(a)(1)
WHAT: Evidence can only refer to character for truthfulness or untruthfulness
RESPONSE: I will show you how it refers to truthfulness or untruthfulness.
o OBJECTION: Refers to witness' character for truthfulness before witness' character for truthfulness has been
attacked by reputation, opinion, or otherwise. Rule 608(a)(2)

11

WHAT: Evidence of truthful character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence or otherwise.
RESPONSE: Try to show that the other side has attacked the witnesss character in some manner.
o OBJECTION: Specific instances of witness' credibility or lack of it not admissible on cross or by extrinsic
evidence.
RESPONSE:
Specific instances of the conduct of the witness is allowed on cross in the discretion of the
court, if probative of truthfulness or untruthfulness: FRE 608(b)
o Concerning the witness character for truthfulness or untruthfulness,
o Concerning the character for truthfulness or untruthfulness of another witness as to
which character the witness being cross-examined has testified.
RULING: Counsel is correct that the court has discretion to permit inquiry into specific instances in
this circumstance. However, if the court allows this, you must accept the witnesss answers, as counsel
is NOT permitted to prove the specific instances of conduct by extrinsic evidence. FRE 608(b)
o OBJECTION: You are using hearsay to attack the credibility of this witness.
RESPONSE: Per 806, once a hearsay statement is admitted into evidence, other hearsay statements
are admissible to attack the credibility of the Declarant as if he were here.
Impeachment with prior convictions (p 52 outline)
o OBJECTION: The evidence of the prior crime is too prejudicial (Rule 403).
[continued on next page!]
RESPONSE: Do the balancing test and show that the probative value would outweigh the prejudicial
effect. See FRE 609(a): If it is the defendant who is the witness being impeached, the standard is
higher admit ONLY IF the prejudice from the conviction is outweighed by the probative value. If
it is a non-defendant as witness, admit it UNLESS prejudice from conviction substantially outweighs
probative value of conviction.
RULING: Most courts hold that 403 does not prevent impeachment by convictions involving
dishonesty or false statements.
o OBJECTION: This crime introduced for the purpose of attacking the character for truthfulness of a witness
wasnt punishable by death or imprisonment in excess of one year under the law which the witness was
convicted (609(a)(1))
RESPONSE: The witness was convicted in a jurisdiction where this is punishable by death or
imprisonment for more than a year.
RESPONSE: The crime can be admitted if one of its elements is dishonesty or false statement,
regardless of the punishment. 609(a)(2).
o OBJECTION: A period of more than ten years has elapsed since the date of the conviction or the release of the
witness from the confinement imposed for that conviction.
RESPONSE: The court may determine that, in the interests of justice, the probative value of the
conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
And you have to have given notice for this! (609(b))
[note: Time on probation or parole does NOT count as confinement, US v. Daniel]
o OBJECTION: This prior conviction was pardoned, annulled, involved a certificate of rehabilitation, or other
equivalent procedure based on a finding of the rehabilitation of the person convicted, or found innocent in
pardoned, so you cant use it.
RESPONSE: No, it wasnt!
RESPONSE: Yeah, but that same person has been convicted of a subsequent crime that was punishable
by death or imprisonment in excess of one year!
o OBJECTION: This is a juvenile conviction! It is unnecessary for a fair determination of guilt.
WHAT: Rule 609(d): The court can allow, in a criminal case, evidence of a juvenile adjudication of a
witness other than the accused
if the conviction of the offense would be admissible to attack the credibility of an adult
and the court is satisfied that admission in evidence is necessary for a fair determination of the
issue of guilt or innocence.
o OBJECTION: this conviction is on appeal
RESPONSE: Rule 609(e): If a conviction is on appeal, it may still be used for impeachment purposes.
It is admissible despite pendancy of an appeal.
o OBJECTION: This prior conviction was for misdemeanor theft. That is not a crime of dishonesty!
RESPONSE: It is a crime of dishonesty!

12

RULING: Courts discretion whether theft is a crime of dishonesty for 609(a)(2) purposes. Probably
not, but courts go either way on this.
o OBJECTION: Counsel cant use extrinsic evidence for this impeachment!
RULING: Yes he can. Extrinsic evidence can be used to prove prior conviction.
Specific impeachment: other atty questioning our witness, trying to prove our witness lied about a particular fact by
introducing a prior inconsistent statement (p 54 outline)
o OBJECTION: Witness cannot be impeached on collateral matters, and this is a collateral matter.
Response: Prior inconsistent statements are in general a valid method of impeaching witness. Im
using this prior statement not as substantive evid, but only to show that the witness is lying about this
particular fact.
RULING: If it truly does not relate to a substantive point Judge should bar this prior statement,
because it does not relate to a substantive point in the case.
o OBJECTION: I dont know about the contents of this prior statement/writing. I was not given this information
earlier.
Response: per FRE 613(a), I was not required to show you the writing/disclose the contents of the
statement unless you requested it.
RULING: If counsel is requesting this information right now, then you must either show counsel the
written statement or recite the oral statement before you may continue.
o OBJECTION: Atty is setting this up so that he can get otherwise inadmissible evidence in front of the jury.
Cant use FRE 607 in bad faith (US v. Webster).
Response: Webster says that I can say this as a prior inconsistent statement if it is in good faith, and
this is a good faith effort to impeach this witness.
[continued on next page]
RULING: If in good faith, I will let this in with a caution to the jury to not consider the prior
statement as substantive evid. (If there is bad faith, doesnt get in. Strike it.)
o OBJECTION: Now the other atty is attempting to introduce extrinsic evidence (anything other than witness
testimony right now) to prove to a prior inconsistent statement. FRE 613(b) says this is not admissible unless
my witness is able to explain or deny this evid. My witness has already testified and was not asked about this,
so there was no opportunity to explain it.
Response: But the rule does not require a specific order of witness opportunity and my introduction of
extrinsic evid.
RULING: In order to be fair and avoid possible sandbagging, Im going to let counsel recall his
witness to ensure an opportunity to explain or deny this.
Attempting to use criminal defendants silence as impeachment (p 55 outline)
o OBJECTION: Cannot impeach with silence after Miranda warnings.

Response: You can use such silence to impeach IF defendant testifies at trial that he told the police
something when he was questioned, which is happening here. Then prosecution can prove that he was
in fact silent.

RULING: Prosecution is right. If defendant testified to this, then prosecution can use this to
prove his inconsistency.
Other possible responses/rulings: Permissible uses of silence: (but still admitted only if they seem
probative)
1. Just asking the question may not be reversible error. Greer v. Miller (1987).
a. Isnt it true that when you were interrogated by the police, you remained silent?

2.

Pre-arrest (& pre-Miranda warnings) silence is admissible. Jenkins v. Anderson (1980).

3.

Post-arrest, pre-warnings silence is admissible. Fletcher v. Weir (1982).

Impeachment through contradiction: using extrinsic (another witness, videotape, etc.) substantive evidence to
contradict particular facts of the witness testimony (p 55 outline)
a.

OBJECTION: This is too collateral.

13

 Response: if the contradicting testimony is of even arguable centrality to the thrust of the witness
testimony, it should be admissible.
RULING: No FRE on point, but this is still limited by FRE 403 (prejudice) and 611(procedural junk).
Otherwise, this is my discretion. [depends on facts]
b.

OBJECTION: This is illegally obtained evid. (SEE OUTLINE)

Judicial Notice (p 47 outline)

OBJECTION: Despite counsels assertion to the contrary, this fact is disputable, and/or is not generally known or readily
verifiable by unimpeachable sources.
o RULING: If counsel has requested judicial notice and supplied the court with necessary information (factbased decision), then I must take judicial notice of this fact per FRE 201(d).
OBJECTION: I was not notified of counsels intent to request judicial notice of this fact.
o RULING: Per FRE 201(e), you can make a request to be heard on this matter right now.
OBJECTION: This is not a generally known fact. It is just based on the judges personal knowledge.
o RULING: If it is at least generally known by informed people in the jurisdiction, even though some people in
the jurisdiction might not know the fact, the court can take judicial notice of this fact per FRE 201(b)(1). [If it
really is just based on the judges personal knowledge, that is NOT good enough to get judicial notice.]
OBJECTION: The evidence presented by opposing counsel is inadmissible, so the court cannot based its grant of
judicial notice on it.
o RULING: Wrong. Per FRE 104(a), a judge may consider inadmissible evidence when ruling on admissibility.
***FRE 201 only governs adjudicative facts. There are no federal rules for judicial notice of basic facts, legislative
facts, or judicial notice of Law.
Leading Question (on direct)
RULE: 611(c)
WHAT: rule says leading shouldnt be allowed on direct. BUT ARE PERMISSIBLE if necessary to develop witness
testimony
RESPONSE:
1. question isnt leading. Calling for a yes or no answer doesnt make it an impermissibly leading question
2. leading questions permissible concerning preliminary or other undisputed matters (US v. Indorato)
3. permitted when witness, because of age, infirmity, language barrier, or memory loss, is unable to convey
information meaningfully in response to non-leading questions (US v. Butler, 8th Cir.)
a. [continued on next page]
b. IF THIS ARGUMENT FAILS BECAUSE OF MEMORY LOSS, try refreshing the memory, then past
recollection recorded.
4. witness is an adverse party- rule 611(c). Can proceed like cross.
a. EXAMPLE: employee of corporate defendant; relative of defendant
5. witness is identified as an adverse party
6. witness is hostile- courts will allow questioning to proceed as if on cross
7. rephrase
Leading Question (on cross)
RULE: 611(c)
WHAT: under rule, ordinarily allowed on cross, but courts can limit the use of such questions when the cross-examiner
is interrogating a friendly witness. This would be a witness called by the other party as an adverse witness
RESPONSE:
1. this is cross. Leading questions are generally allowed on cross and denial of right to cross is a
constitutional violation
a. IF YOUR OBJECTION IS OVERRULED UNDER THIS ARGUMENT, renew the objection
every dang time!! Preserve for appeal.
2. the question isnt leading. Calling for a yes or no doesnt make it an impermissibly leading question
3. the witness is not friendly
4. rephrase [continued on next page!]
NOTE: if the objection is sustained and you cant effectively cross, say it is a constitutional violation and move for the
entire testimony, including direct, to be stricken from the record.

14

Evidence Misleads the Jury

OBJECTION: This evidence, although relevant, should be excluded per FRE 403, because its probative value is
substantially outweighed by its tendency to mislead the jury.
Misleading the witness, Misstating the evidence
WHAT: if evidence that a witness took an hour to drive someplace, it is MISLEADING to ask, what took you an hour?
Calls for Narrative Testimony
RULE: 611(a)
WHAT: rule directs court to exercise reasonable control over the mode of interrogating witnesses so as to (1) make the
interrogation effective for the ascertainment of truth. Although not objectionable per se, court should require counsel to
employee more pointed questions when a narrative question is likely to provoke a response containing hearsay or other
inadmissible evidence (US v. Pless)
RESPONSE: rephrase
RULING: permissible on direct. Court likely to allow only if the witness appears to be able to testify without putting
before the jury material that is clearly inadmissible or seriously prejudicial.
OBJECT AGAIN: renew objection and move to strike any admissible statements made. Also ask for limiting instruction
to jurors (youll probably loose, but you need to preserve)
Non-responsive
The witness is non-responsive (to your questioning)
Objection to Question by the Judge
RULE: 614(c)
WHAT: judge permitted interrogate witnesses under FRE 614(b). But you can object to avoid prejudice to the parties.
Make objection at next opportunity when the jury is not present.
WHY to object: overly intrusive, deprives attorneys of control over the trial, gives jurors impression that judge is biased
or favors one sides case, reveals information not yet in evidence- judges barred from testifying by FRE 605 if they are
presiding.
Offers to Compromise (p 20 outline)
o FRE 408
o What kind of evidence is inadmissible:
(1) A promise or offer or acceptance of compromise
[continued on next page]
(2) Conduct or statements made in compromise negotiations regarding the claim, except when in
criminal case and negotiations related to claim by a public office or agency in the exercise of its
regulatory, investigative, or enforcement authority.
o OBJECTION: this is a prohibited use of this evidence under 408, b/c it is offered to prove liability for, invalidity of, or
amount of a disputed claim, or to impeach through prior inconsistent statement or contradiction
o RESPONSE: It is permissible to use this evidence to prove a witnesss bias or prejudice, negate a contention of
undue delay (probably criminal speedy trial issues), and to prove an effort to obstruct a criminal investigation or
prosecution.
o RESPONSE: This statement was NOT an offer to settle, so 408 doesnt prohibit its admission.
o RESPONSE: There was no claim! There must actually be a claim before Rule 408 excludes this evid.
Counter-response: There does NOT have to be a claim in the form of a pending lawsuit for this to
apply. There must only be an actual dispute that had matured to a fairly significant point.
o RESPONSE: This was not a negotiation between private parties to settle a private dispute. Statements to
government officials in civil or regulatory disputes are admissible in criminal cases.
Counter-response: Statements or conduct of the defendant during the negotiations may be admissible,
but any offers to compromise are still inadmissible per 408(a)(1).
o RULING: (1) look at what the attys purpose is for introducing the evidence and decide if it is permissible, (2)
determine whether atty is attempting to admit evidence of a compromise offer/acceptance or conduct/statements made
during the negations, and (3) determine if the negotiations involved a public office or agency.
Calls for Opinion

15

WHAT: calls for inadmissible opinion

MOVE TO STRIKE
OBJECTION: Witness is not an expert, but he is telling the jury what he thinks or believes is true. (p 57 outline)
o RESPONSE. Witness does not claim to be an expert, and his opinion is not based on specialized knowledge, so
FRE 702 doesnt apply here. He is a lay witness. Per FRE 701, a lay witness can testify to his opinion when it
is rationally based on his own perception, and it is helpful to give the jury a clear understanding.
Counter-Response: But he isnt even certain that what hes saying is correct!
o RULING: If witness is not testifying based on scientific, technical, or other specialized knowledge, then his
testimony is admissible as long as it is based on personal perception and helpful to the trier of fact. He does not
have to be certain, so he can testify as to what he thinks to be true whether it is or not. However, it will not be
allowed if it is overly speculative or unduly intrudes on the jurys duty to interpret the behavior of the party.

Outside Scope of Direct

MAJORITY RULE: cross examiner not allowed to explore new issues not raised in direct testimony.
o WHAT: each side is able to control its presentation and make its case without interruption or diversion by the
opponent into different issues.
o NOTE: raising an issue solely for purposes of impeachment, doesnt violate rule
MINORITY RULE: cross is wide open (only 1/5 of states)
o MINORITY RESPONSE: I want to avoid calling the witness back to stand for second time to ask these
questions
o MINORITY RULING: rule is hard to administer and can lead to quibbling objections
FRE: 611(b)- generally adopts majority view limiting to scope of direct. BUT, allows judge to permit inquiry into
additional matters.
o RESPONSE if overruled: direct counsel to question as if on direct examination with non-leading questions
Lack of Personal Knoweldge
RULE:
WHAT: witness lacks personal knowledge necessary to testify to the matter
MOVE TO STRIKE for lack of demonstration of personal knowledge
Criminal Pleas (p 21 outline)
FRE 410
OBJECTION: this statement is NOT admissible in any civil or criminal proceedings, because it is:
o Guilty plea later withdraw
o Plea of nolo contendere
o Statement made in course of any Rule 11 proceedings (Fed. R. Crim. Pro.)
o Any plea discussion w/ a prosecuting atty that did not result in a guilty plea, or did result in a guilty plea which
was later withdrawn [response on next page!]
RESPONSE: This statement IS admissible, because:
o Another statement which was made in the course of the SAME plea discussion has been introduced here by
counsel, and this statement should in fairness be considered contemporaneously with it, OR
o This is a criminal perjury or false statement proceeding, and the statement was made by defendant under oath,
on the record, and in presence of counsel
Prejudicial (p 13 outline)
OBJECTION: FRE 403: Judge may keep out relevant evidence if its prejudicial effect substantially outweighs its
probative value. This is too prejudicial!
o RESPONSE: 403 is only meant to prevent unfair prejudice, and this is not unfair.
Domestic violence example: Not unfair to admit evidence of history of abuse.
o RESPONSE: This evidence has significant probative value. Even though it also has a prejudicial effect, the
prejudice is not enough to significantly outweigh its probative value.
Probability Evidence: (p 15 outline)
o This is merely probability evidence as is not relevant, because it offers no proof that this particular party did anything.
o RULING: See relevance. Rejected in People v. Collins. Even if clearly relevant (as in exploding tire example), still not
clear that it should be admitted.

16

Privilege:
o RULE: no federal rule, except governed by FRE 501
o OBJECTION: (very general, see outline for more specific) The information sought from this witness is protected under
_______ privilege.
o RESPONSE: (depends on which privilege is asserted)
Attorney-Client privilege: not privileged because: (p 63 outline)
Not a communication
o If physical evidence itself, must be turned over and CAN be admitted (People v.
Meredith)
And if atty or investigator moved the evidence, that person can be
compelled to testify to its original location or condition!
not based on a communication by the client or incidental to it
o Counter-RESPONSE: if it is communication b/w an intermediary of the atty and
client, it is protected (US v. Kovel).
not legal advice or a service related to providing legal advice
even though they were joint clients, they are now adversaries, so no longer privileged
corporate A-C: fails the Upjohn test (p 67 outline)
not atty work-product or mental impressions of atty
exceptions to privilege: see p 68 of outline
Marital Privilege: (p 70 outline)
If spousal testimony:
o In most states and in fed ct (Trammel), the testifying spouse can choose to testify
against the other spouse (but may not be compelled to)
o Priv exists only during the marriage
o Does NOT apply when:
Sham marriage or only common law marriage
Domestic violence exception
Where spouses are joint participants in this crime
If marital communications:
o [RULE: applies to civil and criminal cases, and either spouse may assert it]
o Communications not covered:
Noncommunicative behavior
Appearance/physical condition
Some other facts learned during the marriage
Anything not kept confidential b/w marriage (US v. Montgomery)
Same limitations as spousal testimony
There is NO parent-child communication priv.
There IS a federal psychotherapist-patient privilege, and it extends to social workers (Jaffee v.
Redmond), but possible response is that its unclear that this priv extends to social workers performing
functions other than those of psychiatric counseling.
For MISSOURI priv: (p 71 of outline)
Redirect Limited to Scope of Cross
WHAT: redirect is rebut cross, you cannot introduce new evidence or cover new issues.
RESPONSE: request to re-open direct examination
REHABILITATION (after impeachment of witness): explaining why he said something contradictory earlier, such as was
under duress (p 56 outline)
RULE: Proof of good character for truth & veracity is admissible if calling party directly assaults character, whether by:
Cross-exam on prior acts under FRE 608(b)
Prior convictions under FRE 609
Negative reputation or opinion testimony under 608(a)
OBJECTION: Counsel is bolstering his witness, because he is attempting to rehabilitate but there has not been an attack
on the witnesss credibility.
o Response: I anticipate impeachment on direct examination, which is what Im doing. Im simply laying out
impeaching facts to avoid the appearance that my witness is hiding them.

17

OR this response: The attack on the witnesss credibility is assumed when the thrust of the impeachment
questions raise questions about the witnesss veracity, so judge can allow other side to repair witness credibility
(US v. Medical Therapy Services).

Possible RULINGS:

Calling party may not offer proof of good character for truth and veracity until the other side has
attacked the witness in ways that suggest bad character and untruthfulness. (FRE 608(a)(2)) [fact
dependent again]. A previous attack on the witness has/has not occurred here.

OBJECTION: I did not attack the witnesss character for truthfulness, so 608(a) does not allow opposing counsel to now
introduce evidence to show that his witness has a good character for truthfulness.
o RESPONSE: You attacked my witnesss credibility through prior inconsistent statements, contradiction
evidence, and a showing of bias!
o RULING: None of these forms of impeachment cited in the response will usually pave the way for proof of
good character for truth.
OBJECTION: This is not responding to the attack that actually made. He is using unrelated evidence.
o Response: This is relevant.
OBJECTION: Supporting witness is not allowed to testify that the principal witnesss testimony was untruthful!
o RESPONSE: He is allowed to testify in the form of reputation or opinion in order to respond to your attack on
my witnesss character.
o RULING: Per 608(a), the supporting witness may testifying in the form of reputation or opinion, but he may
only speak to the fact that the principal witness has a truthful disposition. He cannot testify that the testimony
the principal witness gave in this case is itself truthful or correct. (cant say I believe what he said.)
OBJECTION: This is character evidence, which requires a proper foundation which counsel has not demonstrated in
this case.
o RULE:
If opinion testimony is offered: witness is acquainted w/ the principal witness
If reputation testimony is offered: witness knows the prevailing community sentiment about the
principal witness
OBJECTION: This is hearsay.
o RESPONSE: Per FRE 801(d)(1)(B), this statement is NOT hearsay, because the Declarant is testifying, and the
statement is consistent with declarants testimony, and it is offered to rebut a charge against the Declarant of
recent fabrication or improper influence or motive.
OBJECTION: This is hearsay and the Declarant is not testifying as a witness, so not allowed.
o RESPONSE: Per FRE 806, this hearsay is allowed even though the Declarant is not here to testify, because
A hearsay statement by that Declarant has been admitted into evidence, and
the credibility of the Declarant was attacked, so
we are therefore allowed to support the credibility of the Declarant by any evidence which would be
admissible to do so if Declarant were here testifying as a witness.
OBJECTION: Counsel has presented evidence of a statement or conduct by the Declarant that is inconsistent with the
declarants hearsay statement, so the Declarant should be given an opportunity to deny or explain.
o RULING: Per FRE 806, such evidence is not subject to the requirement that the Declarant be afforded an
opportunity to deny or explain. Adverse party can call the Declarant as a witness and may examine the
Declarant as if he were under cross-examination.

Relevance (p 12 outline)
RULE: 401, 402, 403
WHAT: question calls for irrelevant testimony OR answer is irrelevant to facts of case
OBJECTION: This is not relevant. Move to strike.
o RESPONSES:
It is relevant, because it has a tendency to make a material fact more or less probable. Any tendency is
enough to make it relevant.
Completeness: Opposing counsel is creating a distorted impression by introducing only part of a
document/transaction, so per 106 the other part should in fairness be considered now as well, even if
not otherwise relevant.

18

If probability evidence: While there is not universal agreement (rejected in People v. Collins), some
courts do allow mathematical probability to be relevant evidence.
OBJECTION: This is not relevant, because it does not prove a material fact.
o RESPONSE: Each piece of evidence does not have to prove a material fact by itself. When viewed in
combination with other evid, this piece of evidence makes a material fact more or less likely, and therefore
relevant.
o RULING:
It is or is not relevant, depending on what it is.
Conditional relevance is an option: Per 104(b), evidence can be admitted subject to later proof of this
precondition [relevancy].
OBJECTION: This evidence may be relevant, but it is nevertheless not admissible as expressed in Rule ________. (p 14
outline) (conflicting rules!)
o Possible RULINGS:
FRE 403 unfair prejudice may lead to exclusion of the entire thing anyway.
IF this evidence is important, will let it in with a cautionary instruction to jury per FRE 105, which
will instruct the jury to only consider the evidence within its proper scope.

Repetitious Question (call it unduly repetitious)

RULE: derived indirectly from 611(a)
WHAT: not likely to elicit additional evidence of probative value, a waste of time
RESPONSE:
1. witness has not yet answered
2. opposing counsel asked this question, I have not.
Calls for Speculation
WHAT: improper to ask a witness about something that he has no way of knowing and about which he can only
conjecture
EXAMPLE: what would she have done? What was she thinking when she did that?
Subsequent Remedial Measures (p 19 outline)
o FRE 407
o OBJECTION: evidence NOT admissible to prove negligence, culpable conduct, product defect, design defect, or need
for a warning or instruction
o RESPONSE: evidence IS admissible to prove another purpose, such as providing ownership, control, or
feasibility of precautionary measures, if controverted, or impeachment.
[see Tuer v. McDonald for meaning of feasibility and whether it is controverted]
o RESPONSE: redesign of the product precedes the injury, so it is admissible.
Unintelligible Question
RULE: 611(a)
WHAT: rule directs court to exercise reasonable control over the mode of interrogating witnesses so as to (1) make the
interrogation effective for the ascertainment of truth.
RESPONSE: rephrase
IF YOU DIDNT OBJECT SOON ENOUGHmotion to strike

19