Trials are dynamic and the trial strategy changes as the case unfolds. As it relates to the specifics of trial objections, most litigants have watched court television or cable (or live streamed) programs where the attorneys are constantly making fiery objections during trial. This rarely occurs in actual courts. In some cases, there is no choice but to object to protect the record (what is being typed and/or recorded by the court reporter) for appeal. However, most seasoned family law judges want to dispense with legal posturing and hear the case; they have heard enough domestic cases to judge credibility. Thus, there may be few objections. This blog addresses what a litigant being asked questions should do when an objection is lodged, and the most common objections made in family law cases.
As a procedural matter, when an objection is made in open court by your counsel (or opposing counsel), the witness should not answer until the trial court rules on the objection.1 The court will either overrule the objection or sustain the objection based on the Indiana Rules of Evidence. If the objection is overruled, the litigant can answer the question. However, it is key to ask the question to be re-asked if you do not remember the exact question. If the objection is sustained, the witness does not answer the question. Under the rather unnerving environment of a trial, this distinction may be hard to remember. Think of the “s” in the word sustained like the “s” in a stop sign. Stop and do not answer. This noted, there are four (4) common objections made in most all domestic cases.
The first—and by far most common—objection is “hearsay”.2 Hearsay is an out of court statement you heard that did not come from a party. You cannot testify about what someone else said except another party in the courtroom. You can certainly testify about what your soon-to-be ex said as long as you can reasonably orient it to time and place. What is tricky is you cannot testify about what the other party said that someone else told them. This too is hearsay. Sometimes this “hearsay” testimony may be necessary to your case. In that circumstance, the person making the statement must be subpoenaed to court to testify. In some cases, you can testify about what you believed the situation was based on the facts and circumstances surrounding the hearsay statement.
The close second objection is “speculation”. You can only testify to facts that you have personal knowledge about and based on your perception.3 Generally, this means something you observed, felt, smelled, heard (but not hearsay statements). A good example for a custody case is you saw your child crying. That is not hearsay. You have personal knowledge of what you observed and can explain the context in which you made your observation. That said, you cannot testify your child told you he or she was crying because X occurred. It is very important to grasp this distinction because this may well get the evidence into the case that you need relative to your legal objectives. Speculation is guessing. As another example, you cannot say you say your child, we will call him “Johnny”, made when you talked with him. What you can say is after Johnny came out of the locker room for the team his dad was coaching, he repeatedly punched the wall.
The third evidentiary objection often lodged during a domestic trial is “relevancy”. Relevancy, as defined by the Indiana Rules of Evidence is set forth, as follows: “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Again, these abstract rules are difficult to understand without an example. A question that would be irrelevant to ask in a divorce case is what the party (mother or father) had for lunch yesterday. There is no foreseeable way this has any connection to physical custody or parenting time issues before the court. If the question were asked about our hypothetical “Johnny”, the question could be relevant if there are issues in the case are that he eats poorly at one parent’s house, is nutritionally deficient, and this is impacting his growth and psychological health. Most evidence presented during a divorce case is relevant, but asking tenuous questions is a sure-fire way to alienate the judge. Unless it is an extreme circumstance, the judge could care less what Johnny had for lunch yesterday, the day before, or what he will have for lunch today.
The fourth common objection in domestic cases, again with hearsay and speculation being by far the most common trial objections, is the question is “leading”. A leading question is one that has the answer to the question partially or fully contained in the question. “Is your name Jane Doe?” is a leading question. The question “What is your name?” is not a leading question. For routine identification questions, such as name, where do you live, work and the like leading questions, while technically leading and impermissible are rarely objected to because it has no bearing on the issues before the court. Such an objection, again, would be a sure-fire way to alienate the judge. He or she wants to hear the evidence relevant to the issues before the court. Leading questions may be asked of adverse witnesses.
Ciyou & Associates, P.C. associates have handled hundreds of lengthy trials and are experienced in reading judges to know when to object and when to let an objection go. We hope you find this blog useful in educating you about common evidentiary objections lodged in domestic (and paternity) final hearings or trials. This blog is not to be relied upon in any given case or legal issue. Additionally, the blog is not legal advice. It is an advertisement.