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The Three Most Common Objections Made During Trial Testimony

What They Mean To You, Your Case, and What May Happen

Perhaps everyone who has watched a courtroom drama or live court TV has heard objections during the testimony of a witness. At Ciyou & Dixon, P.C., we believe understanding common objections made during trials (or depositions) will make you a more informed legal consumer and maximize the quality of your trial testimony.

A good place to begin understanding evidence is with drawing a mental distinction between trial testimony and documentary evidence. Testimony is spoken words. For example, an attorney may ask, “Ma’am, please state your name” or “Is your name Sally Smith”. These types of questions elicit testimonial evidence from a witness.

Typically, in connection with trial testimony of a witness, documentary evidence may be identified, a foundation laid, and a document (sought to be) admitted. Collectively, all evidence a trial court receives to decide a case is in the form of testimony or documents. The testimony, again spoken words, may be of two (2) types: lay or expert testimony.

Expert testimony is given in court by a person knowledge outside the ordinary person and related to a recognized profession. Many times, expert testimony will be provided by an individual hired for this purpose and who has no other connection with the case whatsoever. It is typically allowed if it is helpful to the fact-finder (the judge or the jury).

Lay testimony is the most common type of evidence. The most common example is the testimony provided by a party to the lawsuit. In a divorce case, this would be the husband or wife. In a contract dispute between two (2) parties, like a foreclosure, this may be a mortgage lender or homeowner.

With documentary and testimonial evidence being differentiated, and lay from expert testimony, the blog focuses on what is by far the three (3) most common trial objections made in response to lay testimony: Hearsay, Leading and Relevancy.

Hearsay.

A common, if not the most common trial objection to a trial testimony objection is hearsay. By definition, hearsay is an out of court statement made in court by someone other than a party to prove the truth of matter. For example, the attorney asks a witness to an accident in a personal injury case, “What did the paramedic say when he saw the injury?”

This is hearsay. The attorney for the opposing party would object on the basis the testimony elicited is hearsay. The trial court would likely “sustain” (stop the testimony) the objection. This does not mean that the paramedic’s statement, if critical to the case, does not come in. Instead, it means the paramedic must be compelled to come to court and testify about what he or she said at the time.

The way such a third person is brought into court is by a trial subpoena. A subpoena compels his or her attendance to court, assuming it is valid and is accompanied by witness fees. A witness may challenge the subpoena and coming to court by filing a motion to quash it. Without this being successful, failure to follow the subpoena may delay the trial or cause a bench warrant to issue to compel the witness to be brought to the trial.

There are a number of fairly complex exceptions to the hearsay prohibition. The most common is common sense. A party may testify about what another party to the litigation said. The reason, this party is in court and able to testify about the matter. This evidentiary bar to hearsay prevents testimony from being distorted by what occurs from a statement being passed from person to person; a party-opponent is in court to correct it so it is allowed.

Does this make sense? If not, think about why a trial court would not want such out-of-court statements made to be relied upon. As a child game aptly makes the point: we probably all played the same game. Get several people in line and whisper a secret in the ear of the first person in the line and try to accurately pass it down the line from person to person.

A simple statement like, “I saw stars when I stepped off the sidewalk and lost my balance” may become, “I saw stars on the sidewalk.” If this sentence is made in the context of discussing a vacation in Hollywood, California, it may mean this witness tripped and fell in Hollywood or saw a movie star while walking along. These have vastly different meanings.

Trials are not the place for this. Specifically, in a lawsuit, where loss of money or freedom is at hand, very few trials use hearsay statements being relied upon by the fact-finder. Critical details must be accurately and fully relayed. If not, the distortion may, like the “whisper” game noted may result in a key fact being mistaken and a miscarriage of justice.

As a learning point, the fact-finder may be a judge or jury. Most of the time, it will be a judge. With felonies, there is a right to a jury trial. In most other cases, civil in particular, there may be no right to a jury trial, or only such a right, if it is timely requested. Finally, some out of court hearsay statements may be admissible for purposes other than to prove the truth of the matter therein.

Judges, as fact-finders, are viewed to do a much better job sorting out hearsay if it is allowed in and not relying on it.

Leading.

A close second objection is to leading questions. Leading questions are generally impermissible to be asked of a favorable witness or a party by his or her attorney. A leading versus non-leading question is set forth in the beginning of this blog by the question about the name of the witness: “Ma’am, please state your name” or “Is your name Sally Smith”.

The reason leading questions are objectionable is because they contain some or all of the answers a lawyer seeks of a witness. In the last formulation of the question, it is obvious the attorney wants the witness to be “Sally Smith”. However, if this is a key fact, namely the identity of the witness, the opposing counsel would object to the question as leading.

If there is no reasonable belief in the identity of the person, or with any other type of evidence a leading question is structured to obtain, leading questions, even if technically impermissible, are rarely objectionable in practice. The reason for this is because of expediency. There is a finite amount of time for judges, and litigants are often paying their lawyers for trials. A series of leading questions may, over the course of a trial, save a significant amount of time.

The most common exception to this rule is with litigants who do not understand the process, are frightened or are non-native speakers. They are allowed for hostile witnesses. Leading questions, if the court allows it, may be used to aid litigants to develop the testimony and get in before the trial court if it is done for the proper reasons, namely get the evidence before the court, not add evidence by “coaching” the witness to make up for shortfalls.

Relevancy.

The last of the three (3) of the most common objections is relevancy. Relevancy means at a basic level facts that make an issue of the case more or less probable. For instance, a question about the size of one car versus another car involved in an accident causing injury is probably relevant. Statistics rate safety and injury facts about cars based on classes (basically the gross vehicle weight).

On the other hand, the question about the color of the car in the same type of case is probably irrelevant. However, not all irrelevant information is objected to because if so, trials would become objection-laden. If there is a chance such a fact could confuse the legal issue or dispositive fact, this is where it is likely to draw an objection by trial counsel.

For this reason and it may be apparent, all relevant evidence is admissible, unless accepted by other evidentiary objections, statutes, and the like. Irrelevant evidence is inadmissible if it is objected to and the court so rules. There are a number of exceptions to this evidentiary rule.

For instance, consider the same accident noted above, the size is relevant to the legal matter and hand, and if an attorney attempts to introduce accident scene photos of the respective vehicles, it is relevant and should come into the evidence and not be objectionable. Change the facts slightly.

This photo also shows the dismembered and disfigured and deceased occupant of the smaller vehicle at the accident scene (police crime scene photos do exactly that). If the proponent of the exhibit is trying to vilify the small car’s manufacture so the jury gives a verdict (and a large one) by this exhibit, it is likely to be objectionable. This is because its value is substantially outweighed by the danger of unfair prejudice to the jury process. Therefore, the trial court may in its discretion exclude the exhibit.

When any of these three or any other objection is made at trial, the witness is supposed to wait for the trial court’s ruling. Sometimes the court will just rule, but other times it will give the opposing party a chance to provide a response. Ultimately, if the objection is sustained, the witness cannot answer. If the objection of an attorney is overruled, the witness can answer.

In a small percentage of cases, a witness will answer before the judge can rule. If it is sustained, then the objecting party may request it be stricken from the evidence. That is the after-the-fact-remedial measure. In jury trials, criminal trials in particular, the jury may be instructed not to regard what it heard and nor rely on it. If the statement is egregious enough, it may cause a mis-trial and a new trial has to be conducted.

At Ciyou & Dixon, P.C., we hope these common trial objections are useful to your understanding a little about the trial court process, namely what common trial objections mean, why and what may occur with the objection. To the extent the courtroom process does not seem alien or arbitrary, it helps us all to understand the American trial court system, which may have a case decided by a judge or a jury, is the model for and envy of the rest of the world.

This blog post was written by Bryan L. Ciyou, Ciyou & Dixon, P.C. Our attorneys practice throughout the State.


  1. 1. Ind. Rule Evidence § 702.
  2. 2. Ind. Rule Evidence § 801.
  3. 3. Ind. Trial Rule 45.
  4. 4. Ind. Trial Rule 38.
  5. 5. The Pelican, Inc. v. Downey, 567 N.E.2d 847 (Ind.Ct.App.1991).
  6. 6. Ind. Rule Evidence § 402.
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Ciyou & Dixon, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Ciyou & Dixon, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Ciyou & Dixon will guide you every step of the way. The family law attorneys at Ciyou & Dixon, P.C. will help you precisely identify your objectives and the means to reach your desired result. In addition, this practice focus is augmented by the firm's other three core areas, namely appellate advocacy, civil practice, and firearms law. Life is uncertain. Be certain of your counselSM.

Indianapolis Divorce Attorneys, Ciyou & Dixon, P.C. of Indianapolis, Indiana, offers legal services for Indianapolis, Zionsville, Noblesville, Carmel, Avon, Anderson, Danville, Greenwood, Brownsburg, Geist, Fortville, McCordsville, Muncie, Greenfield, Westfield, Fort Wayne, Fishers, Bloomington, Lafayette, Marion County, Hamilton County, Hendricks County, Allen County, Delaware County, Morgan County, Hendricks County, Boone County, Vigo County, Johnson County, Hancock County, and Tippecanoe County, Indiana.