In a court trial, questions will be asked of a witness during direct examination and cross-examination for the purpose of getting to the truth. The questions may sound innocuous enough to the layman, but inevitably, an attorney will eventually get to their feet and say, “Objection, your Honor!”
In order to represent their clients’ best interests, every prosecutor and defender must develop a working knowledge of the applicable rules of evidence, practice and court procedure; and before the judge can apply a rule of evidence, an attorney must ask the judge to do so. When the attorney recognizes that a specific rule has been broken by the opposition, it is their duty to challenge them by raising an objection.
However, an attorney cannot just object to a question without stating a valid basis for the challenge. The trial judge will either:
- agree with the objection and instruct the witness not to answer the question; or
- disagree with the objection and instruct the witness to answer.
It is possible for cases to be overturned on appeal, because attorneys have failed to object to information being admitted into evidence via improper questions. These are five of the most common reasons for an attorney to cry foul:
The attorney will object if the opponent’s question leads to hearsay, rather than something that the witness saw or heard themselves. For example, if a witness alleges that they know that Mr. Green was assaulted by Mr. Brown, because a friend told them about the assault, this would be hearsay. The friend would have to give evidence of the incident that they witnessed.
There are some circumstances under which a judge will allow hearsay evidence to be heard. For example: the witness is unavailable because they are dying or dead, the witness is not competent, or the witness cannot be located despite all reasonable efforts.
An objection may be raised due to the relevancy of the particular question. In order to be relevant, there must be some logical connection between the evidence given and the fact that it is offered to prove or disprove. A question is irrelevant if it invites or causes the witness to give evidence that is not related to the facts of the case at hand.
Many of the questions challenged for being irrelevant are those designed by the opposing attorney to bias the judge or jury in some way. For example, if it is alleged that a car was stolen by the 50-year-old defendant, it is likely that the defense attorney would object if their client is asked about a bicycle that they stole at the age of 20.
If the questioner cannot give a reason why the question (or the witness’s answer) was valid, the judge may sustain the objection. If the witness has already answered the question, it will be deemed as inadmissible evidence.
A leading question will usually be challenged by the opposing attorney for violating the rules of evidence. A leading question is objectionable because it suggests to the witness an answer that the examining party desires. The main complaint is that it gives an unfair advantage to the party that is presenting their case, as the witness is merely echoing what their attorney says.
It is at the judge’s discretion whether to allow a leading question. A judge may allow a leading question where there is no risk of injury to the objecting party and for reasons of expediency. However, leading questions are allowed in the cross-examination of a witness, or where a witness is not cooperating and has been deemed hostile.
If an attorney says, “Your Honor, the question calls for speculation,” it means that the question invites or causes the witness to speculate or answer on the basis of conjecture, as opposed to real knowledge. Judges and juries must draw their own conclusions from the evidence presented at a trial, and witnesses are not normally allowed to give their opinions on the stand.
For example, if a witness testifies that the defendant was driving at 100 miles an hour, the defense counsel will object, and the judge will ask the basis for this opinion. If the witness was not in the car with the defendant and there is no real basis, the judge will strike the testimony from the record. A witness can, however, give estimations based on personal knowledge. For example, a witness who test drives sports cars for a living may have their 100-miles-an-hour estimate accepted by a judge.
Another popular reason for an attorney to object to an opponent’s behavior is when the attorney is being hostile or uncivil toward the witness. It is more popularly described as badgering the witness, and the questions being asked of the witness are likely to harass or provoke an outburst. For example, the prosecutor may ask, “With all the evidence against you, how can you have the nerve to deny that you were there?” or “With your terrible record, why should a jury believe you?”
Improper questions such as these will not always give rise to an objection by the defense attorney, particularly where the defense has its own solid evidence to disprove the opponent’s case. The judge, however, may well castigate the hostile attorney in order to maintain decorum in the courtroom.