Using and Objecting to Evidence

HIP-POCKET LIST OF +70 BASIC GENERIC OBJECTIONS

(Best for Use in Jurisdictions Using the Federal Rules of Evidence as a Model)

Note: There are many more potential objections than the ones listed below, e.g., during jury voir dire,  you might object to opponent impermissibly attempting to commit or pledge a prospective juror to a particular result, in opening statement, you might object to counsel arguing the case, indirect or cross-examination, you might object to the opponent making disparaging sidebar remarks, not addressed to the court, while you are questioning a witness, in jury argument you might object to the opponent arguing facts that are not supported by evidence, expressing her personal opinion, etc. That said, here's a list of some basic objections that recur in criminal trials across the country:

AMBIGUOUS (SEE VAGUE)

ANSWER NON-RESPONSIVE

ANSWER EXCEEDS (GOES BEYOND) SCOPE OF QUESTION AND CONSTITUTES A VOLUNTEERED STATEMENT BY THE WITNESS

ARGUMENT IMPROPER (E.G., REFERS TO FACTS NOT IN EVIDENCE, MISSTATES EVIDENCE, MISQUOTES WITNESS, VOUCHES FOR WITNESS, INDICATES PERSONAL BELIEF OR OPINION OF COUNSEL, UNFAIRLY PREJUDICIAL, COMMENT ON DEFENDANT'S FAILURE TO TESTIFY, INDIRECT ATTACK ON ACCUSED BY ATTACKING INTEGRITY OF DEFENSE COUNSEL; [For specific objections to  JURY ARGUMENT ]  

ARGUMENTATIVE IN CONTENT AND TONE WITHOUT ASKING FOR NEW INFORMATION; USING HIS/HER QUESTION TO ARGUE THE CASE

ASKING ONE WITNESS TO COMMENT ON THE VERACITY OF ANOTHER WITNESS' TESTIMONY IMPROPERLY INVADES THE PROVINCE OF THE JURY TO DETERMINE WITNESS CREDIBILITY AND IS IMPROPER CHARACTER EVIDENCE. (EXAMPLE: WHERE ONE WITNESS IS ASKED WHETHER ANOTHER WITNESS LIED OR TOLD THE TRUTH) [Note: There are lots of cases on this, but prosecutors seem to have a proclivity for such "war the officer lying" questions on cross of the defendant, e.g., United States v. Geston, 299 F.3d 1130 (9th Cir. 2002);United States v. Sullivan, 85 F.3d 743 (1st Cir. 1996); United States v. Boyd, 54 F.3d 868 (D.C. Cir. 1995); United States v. Richter, 826 F.2d 206 (2nd Cir. 1987), and for "was the other officer telling the truth" questions on direct of officers, e.g., United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998).]

ASKING A LAY WITNESS TO PROVIDE A PERSONAL EVALUATION OF EVIDENCE ADDUCED BY ANOTHER  WITNESS, ABOUT WHICH EVIDENCE THE WITNESS HAS NO PERSONAL OR EXPERT KNOWLEDGE

ASSUMING FACTS NOT IN EVIDENCE (LOADED QUESTION THAT PREVENTS THE WITNESS FROM HAVING THE OPPORTUNITY TO DENY THE EXISTENCE OF THE ASSUMED FACT)

ASKED AND ANSWERED (SEE REPETITIOUS)

AUTHENTICATION LACKING OR IMPROPER (FAILURE TO IDENTIFY ITEM OF EVIDENCE, E.G., WRITING,  AND SHOW ITS LOGICAL RELEVANCE)  (SEE FAILURE TO LAY PROPER FOUNDATION) 

BADGERING THE WITNESS (ALSO, QUARRELING WITH , ARGUING WITH, SHOUTING AT, BULLYING, LOOMING OVER, AND THREATENING) 

BEST EVIDENCE RULE VIOLATED (SEE ALSO, "ORIGINAL WRITING" RULE)

BEYOND SCOPE OF DIRECT (IN JURISDICTIONS THAT LIMIT THE SCOPE OF CROSS TO THE SUBJECT  MATTER OF THE DIRECT AND MATTERS AFFECTING CREDIBILITY OF THE WITNESS)

BILL OF RIGHTS VIOLATED AND EXCLUSIONARY RULE  APPLICABLE [SUGGESTION: PRINT THE BILL OF RIGHTS FROM THE CCJA PAGE AND PUT IT IN YOUR TRIAL NOTEBOOK SO THAT YOU MAY CITE THE COURT THE LANGUAGE OF A PARTICULAR RIGHT THAT HAS BEEN VIOLATED BY THE GOVERNMENT IN OBTAINING EVIDENCE.] (SEE ILLEGAL SEARCH AND SEIZURE, ILLEGAL IDENTIFICATION, CONFESSION INVOLUNTARY AND WITHOUT PROPER WARNINGS)

CHAIN OF CUSTODY NOT PROPERLY ESTABLISHED (PARTICULARLY WHEN ITEM IS FUNGIBLE AND THUS EASILY ALTERABLE AND NO SINGLE WITNESS CAN IDENTIFY THE ITEM WITH PERSONAL KNOWLEDGE)  

CHARACTER EVIDENCE IMPROPER (E.G., TO ESTABLISH PROPENSITY)

COMPOUND QUESTION THAT CONTAINS TWO OR MORE QUESTIONS WITHIN A SINGLE QUESTION

COMMENT ON EVIDENCE BY JUDGE

COMMENT ON DEFENDANT'S POST-ARREST SILENCE FOR IMPEACHMENT PURPOSES WHEN DEFENDANT REMAINS SILENT AFTER BEING GIVEN MIRANDA WARNINGS VIOLATES DUE PROCESS [Doyle v. Ohio, 426 U.S. 610 (1976);but see  Jenkins v. Anderson, 447 U.S. 231 (1980) okay to impeach accused with with prior prearrest silence, e.g., delay in reporting offense; Anderson v. Charles, 447 U.S. 404 (1980) okay to impeach accused with prior inconsistent statement after Miranda warning. See Impeachment]

CONFESSION OBTAINED WITHOUT REQUIRED WARNING AND VOLUNTARY WAIVER OF RIGHTS UNDER FIFTH AND SIXTH AMENDMENTS

CONFESSION INVOLUNTARY (SEE INVOLUNTARY CONFESSION)

CONFESSION OF CO-DEFENDANT INADMISSIBLE [See Bruton v. United States, 391 U.S. 123 (1968); Gray v. Maryland, 523 U.S. 185 (1998); Motions]

CONFRONTATION CLAUSE OF SIXTH AMENDMENT VIOLATED  BY PROSECUTOR'S OFFER OF OUT-OF-COURT STATEMENT FOR A HEARSAY PURPOSE, I.E., FOR THE TRUTH OF THE MATTER ASSERTED IN THE STATEMENT, NOTWITHSTANDING THAT THE OUT-OF-COURT STATEMENT MAY APPEAR TO FIT WITHIN AN EXCEPTION OR EXEMPTION TO THE HEARSAY RULE  [See Crawford v. Washington, 541 U.S. 36 (2004); See also the discussion at Motions] 

• UNDER THE Crawford Rule YOU ARE LOOKING FOR 4 CONDITIONS: 1. THE OUT-OF-COURT STATEMENT OF A WITNESS IS BEING OFFERED BY THE PROSECUTION AGAINST THE ACCUSED IN A CRIMINAL CASE  FOR THE TRUTH OF THE MATTER ASSERTED IN THE OUT-OF-COURT STATEMENT; 2. THERE WAS NO OPPORTUNITY FOR THE DEFENSE TO CROSS-EXAMINE THE WITNESS AT THE TIME OF THE STATEMENT; 3.AT THE TIME OF THE TRIAL WHEN THE OUT-OF-COURT-STATEMENT IS OFFERED, THE DECLARANT, I.E., THE PERSON WHO MADE THE OUT-OF-COURT STATEMENT, IS UNAVAILABLE AS A WITNESS; AND 4. THE OUT-OF-COURT STATEMENT OF THE UNAVAILABLE DECLARANT IS CLASSIFIED AS "TESTIMONIAL" BY THE USSC. 

• WHAT IS A "TESTIMONAL" OUT-OF-COURT STATEMENT? Crawford, A MURDER PROSECUTION, DIDN'T TELL US MUCH, OTHER THAN THE FACT THAT MRS. CRAWFORD'S STATEMENTS TO POLICE THAT WERE CONTRADICTORY TO HER DEFENDANT HUSBAND'S STORY WERE "TESTIMONIAL"; BECAUSE SHE ASSERTED HER MARITAL PRIVILEGE AND DID NOT TESTIFY AT TRIAL, IT WAS CONSTITUTIONAL ERROR FOR THE COURT TO RECEIVE HER OUT-OF -COURT STATMENT OVER THE DEFENSE CONFRONTATION CLAUSE OBJECTION. THE COURT SUGGESTED THAT AFFIDAVITS, DEPOSITIONS, PRIOR TESTIMONY THAT THE DEFENDANT WAS UNABLE TO CROSS-EXAMINE, AND "STATEMENTS THAT WERE MADE UNDER CIRCUMSTANCES WHICH  WOULD LEAD AN OBJECIVE WITNESS REASONABLY TO BELIEVE THAT THE STATEMENTS WOULD BE AVAILABLE FOR USE IN A LATER TRIAL" WOULD BE CLASSIFIED AS "TESTIMONIAL" OUT-OF -COURT STATEMENTS.

• LITTLE BY LITTLE, WE ARE FINDING OUT WHAT IS AND ISN'T TESTIMONIAL. WE CAN SURMISE FROM Crawford THAT DYING DECLARATIONS AND STATEMENTS OF CO-CONSPIRATORS WILL NOT BE VIEWED BY THE USSC AS TESTIMONIAL. SINCECrawford, THE USSC HAS ENLIGHTENED US WITH THESE CASES: Davis v. Washington,547 U.S. 813 (2006) HOLDING THAT AN OUT-OF-COURT STATEMENT MADE FOR THE PRIMARY PURPOSE OF SECURING HELP IN AN ONGOING EMERGENCY, E.G., A 911 CALL REPORTING AN ONGOING ASSAULT, WAS NOT TESTIMONIAL; Hammon v. Indiana, DECIDED AS A COMPANION CASE TO Davis INVOLVED A STATEMENT BY A DOMESTIC ASSAULT VICTIM UNDER CIRCUMSTANCES VERY SIMILAR TO Crawford; THE STATEMENT OF MS. HAMMON WAS HELD TO MEET ALL OF THE Crawford REQUIREMENTS AS WAS THEREFORE INADMISSIBLE.  SEE ALSO Hammon v. Indiana, 829 N.E.2D 444 (IND 2005); Michigan v. Bryant, __ U.S. __, 131 S.CT. 1143 (2011), ANOTHER ONGOING EMERGENCY CASE WITH A NONTESTIMONIAL OUT-OF-COURT STATEMENT, THIS ONE WHERE A MORTALLY WOUNDED VICTIM MADE THE STATEMENT TO A COP DESCRIBING THE SHOOTER, ID'ING THE SHOOTER, AND THE LOCATION OF THE SHOOTING; Wharton v. Bockting, 549 U.S. 406 (2007) HOLDING THAT CRAWFORD WAS NOT RETROACTIVE; Giles v. California, 554 U.S. 353 (2008) WHICH SEEKS TO CLARIFY THE FORFEITURE RULE, WHEREBY A DEFENDANT FORFEITS HIS SIXTH AMENDMENT RIGHT TO CONFRONT A WITNESS AGAINST HIM WHEN A JUDGE DETERMINES THAT A WRONGFUL ACT BY THE DEFENDANT MADE THE WITNESS UNAVAILABLE TO TESTIFY AT TRIAL; Melendez-Diaz v. Massachusetts, 557 U.S. 1256 (2009) (KENNEDY, ROBERTS, BREYER AND ALITO DISSENTING)  WHICH HELD THAT A FORENSIC LABORATORY REPORT IN THE FORM OF AN AFFIDAVIT STATING THAT A SUSPECT SUBSTANCE WAS COCAINE RANKED AS TESTIMONIAL; THE PROSECUTION REPORT HAD BEEN CREATED SPECIFICALLY TO SERVE AS EVIDENCE IN A CRIMINAL PROCEEDING AND ABSENT STIPULATION, THE PROSECUTION COULD NOT INTRODUCE SUCH A REPORT WITHOUT OFFERING A LIVE WITNESS COMPETENT TO TESTIFY TO THE TRUTH OF THE STATEMENTS MADE IN THE REPORT; THE COURT SAID "DOCUMENTS KEPT IN THE REGULAR COURSE OF BUSINESS MAY ORDINARILY BE ADMITTED AT TRIAL DESPITE THEIR HEARSAY STATUS. BUT THAT IS NOT THE CASE IF THE REGULARLY CONDUCTED BUSINESS ACTIVITY IS THE PRODUCTION OF EVIDENCE FOR USE AT TRIAL"; Bullcoming v. New Mexico, __ U.S. __, 131 S.CT. 2705 (2011) (KENNEDY, ROBERTS, BREYER, ALITO DISSENTING) WHERE THE QUESTION PRESENTED WAS WHETHER THE CONFRONTATION CLAUSE PERMITS THE PROSECUTION TO INTRODUCE A FORENSIC LABORATORY REPORT CONTAINING A TESTIMONIAL CERTIFICATION - MADE FOR THE PURPOSE OF PROVING A PARTICULAR FACT - THROUGH THE IN-COURT TESTIMONY OF A SCIENTIST WHO DID NOT SIGN THE CERTIFICATION OR PERFORM OR OBSERVE THE TEST REPORTED IN THE CERTIFICATION; THE USSC HELD THAT SURROGATE TESTIMONY OF THAT ORDER DOES NOT MEET THE CONFRONTATION REQUIREMENT, I.E., THE ACCUSED IS ENTITLED TO BE CONFRONTED WITH THE ANALYST WHO MADE THE CERTIFICATION, UNLESS THAT ANALYST IS UNAVAILABLE AT TRIAL AND THE ACCUSED HAD A PRETRIAL OPPORTUNITY TO CROSS-EXAMINE THAT PARTICULAR SCIENTIST. [Note: Keep an eye out for the decision in Williams v. Illinois, cert granted 131 S. Ct. 3090 (2011), (1) where a DNA expert who did not perform the DNA test testified at trial and relied upon the forensic opinion/results of the non-testifying analyst in arriving at an in-court opinion.]

• NOTE THAT UNDER Crawford EVEN THOUGH AN OUT-OF-COURT STATEMENT FITS INTO A RECOGNIZED HEARSAY EXCEPTION,  THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT BARS USE OF TESTIMONIAL OUT-OF-COURT STATEMENT BY AN UNAVAILABLE WITNESS WHOM THE  DEFENDANT HAS NOT HAD THE OPPORTUNITY TO CROSS-EXAMINE, IRRESPECTIVE OF WHETHER THE  STATEMENT IS DEEMED RELIABLE; THE STATEMENT IS INADMISSIBLE AS UNCROSSEXAMINED. SEE Crawford v. Washington, 541 U.S. 36 (2004) 

• NOTE: Here is a 164-page pdf compendium containing summaries of state and federal cases addressing the Confrontation Clause decided after Crawford v. Washington; these summaries include every Supreme Court case since Crawford and the state and federal cases granting relief on Confrontation Clause grounds through January 1, 2011.   

CONFRONTATION, FACE-TO-FACE DENIED WHEN WITNESS OR DEFENDANT IS BLOCKED OR SCREENED FROM LIVE CONFRONTATION [Coy v. Iowa, 487 U.S. 1012 (1988) holding that use of closed-circuit live TV to block the child witness' view of the defendant was a confrontatin clause violation; but see, Maryland v. Craig, 497 U.S. 836 (1990) which permitted use of blocking or screening the witness from seeing the defendant provided there is a particularized showing that such blockageis likely to avoid trauma to the witness.]

CONFUSION OF ISSUES

CONTINUING (RUNNING) OBJECTION

COUNSEL AT TRIAL, RIGHT TO PROCEED WITHOUT  [See Faretta v. California, 422 U.S. 806 (1975); McKaskle v. Wiggins, 465 U.S. 168 (1984) cannot refuse stand-by counsel; but seeMartinez v. Court of Appeal of California, 528 U.S. 152 (2000) no constitutional right to self-representation on appeal. ]

CROSS-EXAMINATION  TO SHOW BIAS IMPROPERLY DENIED [See Davis v. Alaska,  415 U.S. 308 (1974).]

CROSS-EXAMINATION DENIED BY TRIAL COURT LIMITING COUNSEL'S CONTACT WITH WITNESS [See Delaware v. Van Arsdall, 475 U.S. 673 (1986); Perry v. Leeke, 488 U.S. 272 (1989)]

CUMULATIVE EVIDENCE, NEEDLESSLY, IN THAT IT FAILS TO ADD TO THE PROBITY OF PREVIOUSLY ADMITTED EVIDENCE

DISCOVERY VIOLATION [Brady v. Maryland, 373 U.S. 83 (1963);United States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley, 473 U.S. 667 (1985); Kyles v. Whitley, 514 U.S. 419 (1995);Strickler v. Greene, 527 U.S. 263 (1999) materiality, i.e., reasonable probability of different result,  required; See Pretrial Practice]   

DISPLAYING EVIDENCE PRIOR TO ITS INTRODUCTION OR CONTINUING TO DISPLAY EVIDENCE AFTER IT HAS BEEN USED 

EXPERT TESTIMONY NOT ADMISSSIBLE (E.G., UNDERLYING FACTS OR DATA INSUFFICIENT; FIELD OF SCIENTIFIC, TECHNOLOGICAL OR OTHER SPECIALTY OF EXPERTISE NOT RELIABLE AND/OR RELEVANT BASED ON DAUBERT FACTORS SUCH AS: (1) WHETHER THE PRINCIPLE HAS BEEN TESTED, (2) THE RESULTS OF PUBLISHED PEER REVIEW, (3) ERROR RATES AND (4) GENERAL ACCEPTANCE; OLD FRYE - United States v. Frye, 293 F. 1013 (D.C. 1923) (1) RULE REQUIRES GENERAL ACCEPTANCE) [See Expert]   

EXPERT WITNESS NOT COMPETENT

FAILURE TO LAY PROPER FOUNDATION FOR ADMISSION OF TESTIMONY, EXHIBIT, OR DOCUMENT (PREDICATE)   (SEE LACK OF EVIDENTIARY PREDIATE)

FINAL ARGUMENT IMPROPER (SEE ARGUMENT IMPROPER; OBJECTIONS TO ARGUMENT)

GOADING THE DEFENSE INTO MOVING FOR A MISTRIAL, PROSECUTORIAL CONDUCT INTENDED TO AND IN FACT SUCCEEDING IN  [Note:  Oregon v. Kennedy, 456 U.S. 667 (1982) established that where the prosecutor's conduct is intended to "goad" the defense into moving for a mistrial, the defense may successfully claim that a retrial is barred by the Fifth Amendment protection against double jeopardy.  The idea behind this ground for objection is that prosecutors shouldn't be permitted by intentional misconduct to force a mistrial that will allow them to retry the accused when conditions are better, e.g., a missing witness may be found, a more conviction-oriented jury may be empanelled, etc. In my home state, Texas, the rule also applies by case law to "reckless" goading.]

HABIT NOT ESTABLISHED, IMPROPER HABIT EVIDENCE BECAUSE 

HEARSAY, QUESTION CALLS FOR OR ANSWER CONTAINS (1 - HISTORY OF THE RULE AGAINST HEARSAY -  TREASON TRIAL OF SIR WALTER RALEIGH), (2 - VARIOUS EXCEPTIONS TO RULE AGAINST HEARSAY DISCUSSED)

HEARSAY WITHIN HEARSAY

HEARSAY, EVIDENCE CONTAINS

HEARSAY, EVIDENCE IS THE RESULT OF AND IS BASED UPON

ILLEGAL SEARCH AND SEIZURE IN VIOLATION OF FOURTH AMENDMENT

ILLEGAL IDENTIFICATION

INVOLUNTARY CONFESSION IN VIOLATION OF DUE PROCESS OR LAW

IMMATERIAL IN THAT IT IS OF NO CONSEQUENCE TO ANY ISSUE IN THE CASE (COUPLE WITH IRRELEVANT)    

IMPEACHMENT IMPROPER ( IMPROPER OPINION OR REPUTATION CHARACTER EVIDENCE - RULE 404 FRE, IMPROPER PROOF OF PRIOR CONVICTION - RULE 609 FRE, IMPROPER FOUNDATION FOR PROOF OF WITNESS' PRIOR INCONSISTENT STATEMENT - RULE 613FRE,IMPROPER PROOF OF UNTRUTHFULNESS -RULE 608FRE, IMPEACHMENT WITH AN IRRELEVANT OR COLLATERAL MATTER - RULE 403 FRE)

INCOMPETENCY OF WITNESS (E.G., LACK OF PERCEPTION, LACK OF MEMORY, INABILITY TO UNDERSTAND NATURE AND OBLIGATION OF OATH - RULE 603 FRE, INABILITY TO NARRATE OR COMMUNICATE IN LANGUAGE OF COURT, LACK OF PERSONAL KNOWLEDGE - RULE 602 FRE, LACK OF EXPERTISE TO TESTIFY AS AN EXPERT - RULE 702 FRE ) [Note that thecompetency under RULE 601 FRE is that "every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision." So children, retarded persons, insane persons, etc., are not automatically  disqualified to testify in federal criminal cases.]

IRRELEVANT IN THE SENSE THAT IT DOES NOT MAKE A FACT OF CONSEQUENCE TO THE LAWSUIT ANYMORE OR LESS LIKELY - RULE 401 FRE 

JUDICIAL NOTICE IMPROPER - RULE 201 FRE 

JUDGE ASKING QUESTION THAT IMPROPERLY INFLUENCES THE JURY AND/OR INTERFERES WITH COUNSEL'S PRESENTATION OF CASE ( SEE COMMENT ON WEIGHT OF EVIDENCE - TOLERATED IN SOME JURISDICTIONS, E.G., FEDERAL COURT - SEE RULE 614 FRE)

LACK OF EVIDENTIARY PREDICATE (FOUNDATION) FOR ADMISSION OF TESTIMONY, EXHIBIT, OR DOCUMENT 

LACK OF PERSONAL KNOWLEDGE (WITNESS, OTHER THAN EXPERT, DOES NOT HAVE FIRST-HAND INFORMATION) - RULE 602 FRE

LAY WITNESS OPINION AND/OR INFERENCE IMPROPER; NOT HELPFUL TO CLEAR UNDERSTANDING OF WITNESS' TESTIMONY OR DETERMINATION OF FACT IN ISSUE, NOT RATIONALLY BASED ON PERCEPTION OF WITNESS (E.G., SEE RULE 701 FRE) 

LEADING QUESTION ON DIRECT EXAMINATION (QUESTION SUGGESTS OR COAXES DESIRED ANSWER) - RULE 611(C) FRE

LEGAL CONCLUSION (QUESTIONS CALLS FOR OR ANSWER CONTAINS) - RULE 

LIMITED PURPOSE OR PARTY, EVIDENCE ADMISSIBLE ONLY FOR A LIMITED PURPOSE OR LIMITED TO A PARTICULAR PARTY (AND OFFERED GENERALLY OR AGAINST ALL PARTIES) - RULE 105 FRE 

MISLEADING THE JURY

MISSTATEMENT (MISCHARACTERIZATION) OF EVIDENCE BY COUNSEL (OR WITNESS)

NON-RESPONSIVE ANSWER

OFFER TO PLEAD GUILTY OR NOLO CONTENDERE INADMISSIBLE (SEE RULE 410 FRE)

OPENING STATEMENT IMPROPER ( E.G., ARGUMENTATIVE, INVADES PROVINCE OF COURT BY PROVIDING INSTRUCTIONS ON LAW, STATES PERSONAL OPINION OR BELIEF OF COUNSEL, PROSECUTOR SPECULATING ABOUT DEFENSE EVIDENCE) [The CCJA OPENING STATEMENT page will provide a longer list of possible objections.] 

OPINION ON ULTIMATE ISSUE

PRIOR BAD ACTS, MISCONDUCT, WRONGS, OR OTHER CRIMES (UNCHARGED MISCONDUCT, EXTRANEOUS OFFENSES)  IMPROPER TO SHOW PROPENSITY/DISPOSITION (SEE RULE 404(B) FRE)

PRIOR CONVICTION INADMISSIBLE   

PRIOR SEXUAL BEHAVIOR IMPROPER

PERSONAL KNOWLEDGE OF LAY WITNESS LACKING (SEE LACK OF PERSONAL KNOWLDGE)

POST-ARREST SILENCE AGAINST THE DEFENDANT, USE OF DEFENDANT'S - [See above re Comment on Post-Arrest Silence; see also Doyle v. Ohio, 426 U.S. 610 (1976); Fletcher v. Weir, 455 U.S. 603 (1982)]

PRIVILEGED COMMUNICATION (E.G., ATTORNEY-CLIENT; DOCTOR-PATIENT (IF ANY); CLERGY; INFORMANT'S IDENTITY; SPOUSAL CAPACITY; SPOUSAL OR MARITAL  COMMUNICATION; SELF-INCRIMINATION)

QUESTION HAS BEEN ANSWERED BY WITNESS AND IS NOW GIVING AN ANSWER THT GOES BEYOND THE QUESTION POSED  (SEE WITNESS HAS ANSWERED)

QUESTION ON CROSS-EXAMINATION GOES BEYOND SCOPE OF DIRECT AND ISSUES OF WITNESS CREDIBILITY (APPLIES ONLY IN JURISDICTIONS, E.G., FEDERAL COURT, WHERE SCOPE OF CROSS IS LIMITED TO SUBJECT OF DIRECT AND ISSUES RELATED TO WITNESS CREDIBILITY)  

REMAINDER RULE, EVIDENCE OF WRITING OR RECORDED STATEMENT SHOULD NOT IN FAIRNESS BE CONSIDERED CONTEMPORANEOUSLY UNDER THE 

RELEVANCE LACKING (SEE IRRELEVANT) ( E.G., HAS NO TENDENCY TO MAKE EXISTENCE OF ANY FACT OF CONSEQUENCE TO THE CASE MORE OR LESS PROBABLE THAN IT WOULD BE WITHOUT THE EVIDENCE)

RELIGIOUS BELIEFS OR OPINIONS OF WITNESS INADMISSIBLE TO SHOW WITNESS' CREDIBILITY IMPAIRED OR ENHANCED (E.G., SEE RULE 610 FRE)

REPETITIOUS (SEE ASKED AND ANSWERED)

REQUIREMENT OF ORIGINAL VIOLATED ( SEE BEST EVIDENCE RULE, ORIGINAL DOCUMENT RULE)

SENTENCE INCREASE BY THE TRIAL JUDGE ABOVE STATUTORY MAXIMUM VIOLATES SIXTH AMENDMENT RIGHT TO TRIAL BY JURY [ See Blakely v. Washington, 542 U.S. 296 (2004)]

SEQUESTRATION OF WITNESSES ("THE RULE" OF WITNESSES) VIOLATION (AS WHEN EVIDENCE THAT ANOTHER WITNESS HAS MADE NOTATIONS UPON IS PRESENTED TO A TESTIFIYING WITNESS)

SHACKLING, BINDING , GAGGING, NOT APPROPRIATE UNDER CIRCUMSTANCES [See Illinois v. Allen, 397 U.S. 337 (1970)] 

SIDEBAR REMARK ( SIDEBAR REMARKS ARE STATEMENTS OF COUNSEL  FOR ONE PARTY NOT ADDRESSED TO THE COURT AND TYPICALLY MADE WHILE COUNSEL FOR ANOTHER PARTY IS EXAMINING A WITNESS, ARGUING A QUESTION TO THE COURT OR ADDRESSING THE JURY.)  

SPECULATION (CONJECTURE, GUESS)

SUPPRESSION HEARING TESTIMONY OF ACCUSED NOT ADMISSIBLE AT TRIAL        [Simmons v. United States, 390 U.S. 377 (1968), e.g., testimony given by defendant at suppression hearing to establish "standing" may not be used against her at trial on the issue of guilt; but see Harris v. New York, 401 U.S. 222 (1971) which allows the use of  statements obtained in violation of Miranda for impeachment purposes.] 

TRIAL IN ABSENTIA NOT PERMITTED WHERE DEFENDANT NOT PRESENT  AT BEGINNING OF TRIAL; ACCUSED HAS RIGHT TO BE PRESENT [See Crosby v. United States, 506 U.S. 255 (1993); United States v. Gagnon, 470 U.S. 522 (1985)]

UNDUE DELAY 

UNFAIRLY PREJUDICIAL (E.G. RULE 403 FRE - POTENTIAL DANGER OF "UNFAIR" PREJUDICE SUBSTANTIALLY OUTWEIGHS PROBATIVE VALUE - OBJECTING PARTY HAS BOP; OBJECT THAT THE OTHERWISE ARGUABLY RELEVANT EVIDENCE UNFAIRLY EXAGGERATES THE TRUTH AND TENDS TO IMPROPERLY STIR THE PASSIONS OR SYMPATHY OF THE JURORS) EVEN THOUGH ARGUABLY RELEVANT

VAGUE

WASTE OF TIME

WEARING PRISON GARB VIOLATES DUE PROCESS [See Estelle v. Williams, 425 U.S. 501 (1976)]

WITNESS HAS ANSWERED THE QUESTION AND IS NOW VOLUNTEERING  AN ANSWER TO A QUESTION THAT HASN'T BEEN ASKED 

PRACTICE TIPS FOR MAKING OBJECTIONS

+ TIP 1:  IF YOU ANTICIPATE THAT OBJECTIONABLE MATERIAL WILL BE OFFERED OR INTRODUCED BY THE OPPOSITION, CONSIDER USING A MOTION IN LIMINE TO BRING THIS TO THE ATTENTION OF THE COURT WELL BEFORE THE JURY EVER HEARS ANY REFERENCE TO THE OBJECTIONABLE  MATTER. YOUR  GOAL IS TO SHIELD THE JURY FROM EXPOSURE TO INADMISSIBLE EVIDENCE. (1 - PRESERVING ERROR IN FEDERAL COURT; 13 PAGES)

+ TIP 2: IF YOU MOVE TO EXCLUDE OR SUPPRESS EVIDENCE AND YOUR MOTION TO EXCLUDE OR SUPPRESS IS NOT GRANTED, BE SURE THAT YOU OBTAIN A SPECIFIC PRETRIAL RULING THAT THE TRIAL JUDGE STATES IS DEFINITIVE. OTHERWISE, TO PRESERVE ERROR, YOU WILL HAVE TO OBJECT TO THE ADMISSION OF THE EVIDENCE AGAIN AT THE TIME IT IS OFFERED AT TRIAL. SEE RULE 103 (a) FRE AND TRE. 

+ TIP 3: IF YOU HAVE TRIED UNSUCCESSFULLY TO KEEP THE GOVERNMENT FROM IMPEACHING THE DEFENDANT WITH A PRIOR CONVICTION PURSUANT TO THE INTERNAL BALANCING TEST OF RULE 609, YOU WILL NOT BE ALLOWED TO APPEAL THE COURT'S DECISION TO ALLOW THE IMPEACHMENT, UNLESS YOUR CLIENT TAKES THE STAND AND EXPOSES HIMSELF TO THE IMPEACHMENT. SEE LUCE V. UNITED STATES, 469 U.S. 38 (1984).

+ TIP 4: BE VERY CAREFUL WHEN YOU MAKE A SO-CALLED "RUNNING OBJECTION"; BE CERTAIN THAT YOUR ORIGINAL OBJECTION IS AS PERFECTLY FORMED AS POSSIBLE; DO NOT TREAT YOUR RUNNING OBJECTION AS CARRYING OVER TO ALL WITNESSES; WITH EACH NEW WITNESS WITH WHOM THE OBJECTIONABLE SUBJECT IS RAISED, EXPRESSLY STATE YOUR OBJECTION INTO THE RECORD AND ASK FOR A RUNNING OBJECTION TO ANY SUCH INQUIRIES OF THAT WITNESS.   TEXAS LAWYERS - SEE THIS 4 PAGE ARTICLE  

+ TIP 5: THE REMAINDER RULE AND THE RULE OF OPTIONAL COMPLETENESS DO NOT MAKE OTHERWISE INADMISSIBLE EVIDENCE ADMISSIBLE. REMEMBER THAT THE REMAINDER RULE OF RULE 106 TRE AND FRE ONLY APPLIES TO WRITINGS OR RECORDED STATEMENTS; IF YOU OFFER EVIDENCE OTHER THAN A WRITING OR RECORDED STATEMENT, THE OPPOSITION DOES NOT HAVE A RIGHT AT THE TIME OF THAT OFFER TO INTRODUCE ANOTHER PART OF THAT EVIDENCE, EVEN IF IT IS ADMISSIBLE. THE REMAINDER RULE DOES NOT APPLY UNLESS THE EVIDENCE YOU ARE OFFERING IS A WRITING OR RECORDED STATEMENT. [TEXAS LAWYERS: BE AWARE THAT RULE 107 TRE CREATES AN ADDITIONAL RULE OF EVIDENCE FOR TEXAS TRIALS - THE RULE OF OPTIONAL COMPLETENESS (ROC) NOT CONTAINED IN THE FRE. THE ROC IS BROADER THAN THE REMAINDER RULE OF RULE 106 FRE & TRE. THE ROC APPLIES TO ACTS, DECLARATIONS, AND CONVERSATIONS, AS WELL AS TO WRITINGS AND RECORDED STATEMENTS; HOWEVER, THE ROC DOES NOT ALLOW CONTEMPORANEOUS INTRODUCTION OF SUCH UNWRITTEN OR RECORDED ACTS, DECLARATIONS, AND CONVERSATIONS, ASSUMING THEY ARE OTHERWISE ADMISSIBLE.] 

+ TIP 6: IN LIEU OF ACTUAL EVIDENCE, OFFER TO STIPULATE TO OTHERWISE ADMISSIBLE PRIOR CONVICTIONS ALLEGED FOR ENHANCEMENT. ARGUE THAT THIS WILL PREVENT UNFAIR PREJUDICE, E.G., UNDER RULE 403 FRE & TRE; CITE THE USSC CASE OF OLD CHIEF V. UNITEDSTATES, 519 U.S. 172 (1997). IF THE COURT DENIES YOUR REQUEST FOR AN AGREED STIPLATION OF THE PRIORS, OBJECT THAT THE RULING IS UNFAIRLY PREJUDICIAL IN THAT THE DANGER OF UNFAIR PREJUDICE SUBSTANTIALLY OUTWEIGHS THE PROBATIVE VALUE OF ALLOWING INTRODUCTION OF REAL EVIDENCE OF THE PRIORS.   

+ TIP 7: IF YOUR OPPONENT TRIES TO INTRODUCE A SUMMARY WITHOUT MAKING ARRANGEMENTS FOR YOU TO SEE THE UNDERLYING MATERIALS AT A REASONABLE TIME AND PLACE OUT OF COURT, OBJECT TO THE SUMMARY UNDER RULE 1006 FRE & TRE.

+ TIP 8: OBJECT IF YOUR OPPONENT TRIES TO REQUIRE YOUR WITNESS TO CHARACTERIZE THE TESTIMONY OF ANOTHER WITNESS, E.G., AS WHERE A PROSECUTOR ASKS A DEFENDANT TESTIFYING IN HIS OWN BEHALF WHETHER A POLICE OFFICER WITNESS WAS LYING WHEN THE OFFICER SAID SOMETHING INCRIMINATING ABOUT THE DEFENDANT.  YOUR OBJECTION SHOULD BE THAT THE QUESTION CALLS FOR IMPROPER CHARACTER EVIDENCE.  YOU CAN ALSO ADD THAT THE QUESTION IS ARGUMENTATIVE. YOU CAN ALSO ARGUE THAT IT CALLS FOR IMPROPER OPINION EVIDENCE. THE REASON WHY SUCH A QUESTION CALLS FOR IMPROPER CHARACTER EVIDENCE IS THAT IT ASKS ONE WITNESS TO  COMMENT ON THE CREDIBILITY OF ANOTHER WITNESS IN AN IMPROPER FORM. THE RULES OF EVIDENCE, E.G., RULE 608 FRE & TRE,  MAY ALLOW ONE WITNESS TO VENTURE AN OPINION REGARDING THE TRUTH AND VERACITY OF ANOTHER WITNESS WHEN A SUFFICIENT SHOWING OF FAMILIARITY IS SHOWN; BUT THE RULES DO NOT ALLOW THE OPINION CHARACTER WITNESS TO VENTURE AN OPINION ON THE TRUTH OF THE TESTIMONY OF ANOTHER WITNESS. NEITHER LAY NOR EXPERT WITNESSES SHOULD BE ALLOWED TO TESTIFY THAT ANOTHER WITNESS IS LYING OR FAKING. THAT DETERMINATION IS FOR THE JURY.  IN SUPPORT OF THE OBJECTION, ALSO CITE THE RULE 403 FRE & TRE PROHIBITION AGAINST UNFAIR PREJUDICE AND ARGUE THAT THE PROBATIVE VALUE OF SUCH EVIDENCE IS SUBSTANTIALLY OUTWEIGHED BY THE FACT THAT SUCH A QUESTION UNFAIRLY PLACES THE WITNESS IN SUCH AN UNFLATTERING LIGHT AS TO POTENTIALLY UNDERMINE HIS ENTIRE TESTIMONY. ARGUE THAT OPPOSING COUNSEL SHOULD BE ARTICULATE ENOUGH TO SHOW THE JURY WHERE THE TESTIMONY OF WITNESSES DIFFER WITHOUT HAVING THE  WITNESS COMMENT ON THE CREDIBILITY OF ANOTHER WITNESS.    

+ TIP 9: EVIDENCE OF UNCHARGED CONDUCT ADMISSIBLE UNDER RULE 404(b) FRE & TRESTILL MAY BE EXCLUDED UNDER RULE 403 FRE & TRE IF ITS PROBATIVE VALUE IS SHOWN TO BE SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE; NOTE THAT THE BURDEN OF PROOF IS ON THE OPPONENT OF THE EVIDENCE, I.E., THE OBJECTING PARTY, NOT THE PARTY, PROPONENT, SEEKING TO INTRODUCE THE UNCHARGED CONDUCT EVIDENCE.

+ TIP 10: RULE 602 FRE & TRE REQUIRING PERSONAL KNOWLEDGE OF ALL FACT WITNESSES OTHER THAN EXPERTS APPLIES TO HEARSAY DCLARANTS AS WELL AS IN-COURT DECLARANTS. YOU MAY OBJECT TO LACK OF KNOWLEDGE ON THE PART OF THE HEARSAY DECLARANT.

+ TIP 11: BE WARY OF DYING DECLARATIONS BY THE PROSECUTION IN JURISDICTIONS WHERE LAW ENFORCEMENT OFFICERS HAVE BEEN TRAINED TO TELL VICTIMS OF HOMICIDAL VIOLENCE, "IT DOESN'T LOOK GOOD, BUDDY. I DON'T THINK YOU'RE GONNA MAKE IT. IS THERE ANYTHING YOU'D LIKE TO SAY ABOUT WHO HURT YOU OR WHY?" SEE THE EXPLANATION OF CRAWFORD ON THE MOTIONS PAGE. [NOTE: UNDER RULE 804(B)(2) FRE, DYING DECLARATIONS ARE ADMISSIBLE IN FEDERAL CRIMINAL CASES ONLY WHEN THE PROSECUTION IS FOR SOME FORM OF CRIMINAL HOMICIDE. ON THE OTHER HAND, TRE 804(B)(2) DOES NOT RESTRICT THE ADMISSIBILITY OF DYING DECLARATIONS TO CRIMINAL HOMICIDE CASES, BUT IT DOES REQUIRE THAT THE DECLARANT BE UNAVAILABLE. THERE IS NO CAUSE OF ACTION RESTRICTION AS TO THE ADMISSIBILITY OF DYING DECLARATIONS IN FEDERAL OR TEXAS CIVIL CASES.]

+ TIP 12: IF YOU WANT TO INTRODUCE EVIDENCE THAT MAY BE CONTROVERSIAL, ANTICIPATE THE EVIDENTIARY PROBLEMS IN ADVANCE AND CONSIDER ALERTING THE JUDGE THAT YOU WISH TO MAKE AN OFFER OF PROOF; YOU CAN FILE A MOTION TO ADMIT IN WHICH YOU EXPLAIN THAT YOU PLAN TO INTRODUCE CERTAIN EVIDENCE AND ANTICIPATE A POSSIBLE OBJECTION TO SUCH EVIDENCE; LET THE COURT KNOW THAT IF THE OPPOSITION'S OBJECTION IS SUSTAINED, YOU WISH TO MAKE AN OFFER OF PROOF OR PROFFER; BE READY TO MAKE  WITNESS OFFER OF PROOF, RATHER THAN A LAWYER OFFER, IF THE OTHER SIDE DEMANDS IT; BE CERTAIN TO GET A RULING ON YOUR OFFER OF PROOF (PROFFER); SOMETIMES JUDGES WILL CHANGE THEIR RULINGS AFTER HEARING THE OFFER OF PROOF AND KNOWING IT MAY NOW BE A GROUND FOR APPEAL. 

+ TIP 13: BE ZEALOUS IN REQUIRING THE COURT TO ENFORCE THE RULES OF THE GAME, BUT BE CONSISTENTLY CIVIL WITH THE COURT IN MAKING YOUR OBJECTIONS. DON'T BE A HYPERCRITICAL, CARPING CENSOR TOO READY TO RAISE OBJECTIONS TO TRIVIAL MATTERS. JUDGES USUALLY HAVE WIGGLE ROOM WITH REGARD TO EVIDENCE. YOUR OVERALL ATTITUDE IN MAKING AND RESPONDING TO OBJECTIONS CAN INFLUENCE THE TRIAL JUDGE TO WIGGLE TOWARD YOU OR AWAY FROM YOU. YOUR REPUTATION AS AN ADVOCATE  KNOWLEGEABLE OF THE RULES MAY PRECEDE YOU. RUMOR HAS IT THAT JUDGES GOSSIP ABOUT LAWYERS LIKE OLD MAIDS DO ABOUT ROUGH SEX.

+ TIP 14: OBJECT IF OPPOSING COUNSEL EXCUSES A SUBPOENAED WITNESS, BEFORE OR DURING TRIAL, WITHOUT THE COURT'S APPROVAL. ONLY THE COURT CAN EXCUSE A SUBPOENAED WITNESS.

+ TIP 15: IF YOU CALL AN ADVERSE PARTY OR A WITNESS ALIGNED OR IDENTIFIED WITH THE OPPOSITION, REMEMBER THAT YOU CAN OBJECT TO THE OPPOSITION LEADING THE ADVERSE WITNESS ON CROSS. (IN THIS SITUATION, YOU ALSO HAVE THE RIGHT TO LEAD THE ADVERSE WITNESS ON DIRECT.)   

+ TIP 16: OBJECT BEFORE THE DAMAGE IS DONE.

+ TIP 17: LEARN TO WEAVE THE PHILOSOPHICAL PURPOSE OF THE EVIDENTIARY RULES INTO THE SUBSTANCE OF YOUR OBJECTION.

+ TIP 18:  BE SURE TO CLARIFY THE IMPROPER NON-VERBAL GESTURES OF YOUR OPPONENT (OR THE JUDGE) FOR THE RECORD BY DICTATING A VERBAL DESCRIPTION OF WHAT HAPPENED. NEVER FORGET THAT AS FAR AS THE APPELLATE COURT IS CONCERNED IF IT ISN'TIN THE RECORD, IT DIDN'T HAPPEN!

+ TIP 19: AS A GENERAL RULE, DURING THE TRIAL, DON'T GO "OFF THE RECORD." THIS MEANS THAT YOU SHOULD NOT ACCEDE TO THE COURT'S REQUEST TO  DISCUSS THE CASE OFF THE RECORD. IF THE COURT INSISTS THAT ITS WORDS BE OFF THE RECORD AND ORDERS THE COURT REPORTER NOT TO TRANSCRIBE ITS COMMENTS, WAIT UNTIL THE COURT IS FINISHED. DO NOT INTERRUPT THE COURT,  AND DO NOT MAKE ANY OFF THE RECORD RESPONSE OR COMMENT. IF THE COURT'S OFF THE RECORD COMMENTS ARE OF SUFFICIENT CONTENT, WAIT UNTIL TESTIMONY RESUMES, AND STATE INTO THE RECORD WHAT THE COURT SAID IN ITS "OFF THE RECORD" COMMENTS TO YOU. [NOTE: THIS WILL NOT ENDEAR YOU TO THE COURT, BUT WILL PROTECT YOUR CLIENT AND SERVE AS NOTICE THAT YOU WON'T SUBMIT TO BULLYING TACTICS BY THE JUDGE.]  

+ TIP 20:  REMEMBER THAT YOU STILL HAVE A GOOD HEARSAY OBJECTION WHEN YOUR OPPONENT ASKS A WITNESS TO PARAPHRASE OR SUMMARIZE WHAT A DECLARANT SAID. THE CUNNING OPPONENT MAY TRY THIS PARLOR TRICK BY SAYING, "WITHOUT TELLING US EXACTLY WHAT WAS SAID, TELL US THE GIST OF WHAT YOUR INVESTIGATION REVEALED."

+ TIP 21: DON'T FORGET TO ASSERT YOUR RIGHT TO A LIMITING INSTRUCTION WHEN THE OPPOSITION'S EVIDENCE IS ADMISSIBLE ONLY FOR A LIMITED PURPOSE. BECAUSE THE LIMITING INSTRUCTION EMPHASIZES THE EVIDENCE IN QUESTION, YOUR DISCRETION MUST GOVERN WHETHER  IT IS IN YOUR BEST INTEREST TO RAISE THE ISSUE OF A LIMITING INSTRUCTION. IF YOU ARE ENTITLED TO A LIMITING INSTRUCTION ON A CRUCIAL ITEM OF EVIDENCE AND THE TRIAL JUDGE REFUSES TO GIVE IT, YOU MAY HAVE A GOOD POINT FOR APPEAL.

+ TIP 22: WHEN YOU ARE OBJECTING TO YOUR OPPONENT'S FAILURE TO ESTABLISH AN EVIDENTIARY FOUNDATION OR PREDICATE THROUGH A WITNESS' ANSWERS, REMEMBER THAT THE PROPONENT OF THE EVIDENCE MUST GENERALLY CONVINCE THE TRIAL JUDGE BY A PREPONDERANCE OF THE EVIDENCE THAT THE FOUNDATION FACTS ARE TRUE.

+ TIP 23: CERTAIN FRONT END PREFATORY WORDS, E.G., "SO," OR PHRASES, E.G., "WOULD YOU SAY," ARE GIVEAWAYS THAT A QUESTION WILL BE LEADING. QUESTIONS THAT  CONTAIN PHRASES LIKE "COULD YOU, " "WHAT IF," "DO YOU SUPPOSE," ETC., OFTEN PRESAGE A QUESTION THAT ASKS THE WITNESS TO SPECULATE.  

+ TIP 24: THE RULES OF EVIDENCE APPLY TO JURY ARGUMENT. THERE ARE A NUMBER OF SPECIFIC OBJECTIONS YOU CAN MAKE TO  THE OPPOSITION'S JURY ARGUMENT. OBJECT TO THE OPPOSITION'S ARGUMENT SPARINGLY, E.G., WHEN YOU ARE CERTAIN THAT YOU HAVE A GOOD SUBSTANTIVE OBJECTION FOR APPEAL. REMEMBER THAT THE PROSECUTION HAS NO APPEAL FROM AN IMPROPER DEFENSE JURY ARGUMENT, BUT "WHEN YOU STRAY, YOU MAY HAVE TO PAY" UNDER THE  "REPLY DOCTRINE," THE "INVITED ARGUMENT RULE," OR THE "OPENING THE DOOR" THEORY. THESE ARE THREE LABELS FOR THE RULE OF JURY ARGUMENT, RECOGNIZED IN SOME CASES, THAT ALLOWS ONE SIDE TO REPLY TO IMPROPER ARGUMENT  OF THE OTHER SIDE.

+ TIP 25: SHARPEN YOUR OBJECTING SKILLS BY PLAYING EVIDENCE/OBJECTION GAMES. HARVARD EVIDENCE PROFESSOR NESSON'S WEB SITE HAS A LONG LIST OF EVIDENCE PROBLEMS. HOW DO YOU GET IT IN, AND HOW DO YOU KEEP IT OUT? WHAT IS THE PROPER OBJECTION AND RESPONSE? NOTE THAT THE HARVARD PROFESSOR HAS A LINK TO THEFEDERAL RULES OF EVIDENCE AT THE BOTTOM OF THE PROBLEM PAGE. USE THE RULES AS A RESOURCE  IN TRYING TO SOLVE THE EVIDENCE PROBLEMS.

PRACTICE TIPS FOR MEETING AND DEFEATING OBJECTIONS

+ TIP 1: RULE 404(b) FRE & TRE UNCHARGED MISCONDUCT EVIDENCE CAN BE OFFERED FOR ANY PROPER PURPOSE OTHER THAN PROOF OF ACTION IN CONFORMITY THEREWITH (WE CALL THIS IMPROPER PURPOSE "PROPENSITY EVIDENCE."); NOTE THAT THE STATED EXAMPLES, I.E., MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN, KNOWLEDGE, IDENTITY, ABSENCE OF MISTAKE, OR ACCIDENT, ARE NOT EXCLUSIVE; RATHER, THEY ARE SIMPLY EXAMPLES OF PROPER PURPOSES FOR PROOF OF UNCHARGED MISCONDUCT.

+ TIP 2: WHEN INTRODUCING BUSINESS RECORDS, VET THEM IN ADVANCE TO BE CERTAIN THEY DON'T INCLUDE MATERIALS  RECEIVED FROM OUTSIDE SOURCES THAT DON'T COMPLY WITH THE PREDICATE REQUIREMENTS, E.G., NOT WITHIN THE KNOWLEDGE OF THE RECORD MAKER.

+ TIP 3: THE EXCEPTION ALLOWING HEARSAY STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT CAN BE A STATEMENT MADE TO THE "LITIGATION" DOCTOR AS WELL AS TO THE "TREATING" DOCTOR. SEE RULE 803(4) FRE & TRE.

+ TIP 4: AN ADOPTIVE ADMISSION (STATEMENT) UNDER RULE 801(d)(2)(B) FRE & RULE 801(e)(2)(B) TRE DOES NOT HAVE TO BE MADE IN THE PRESENCE OF THE DEFENDANT; ALL THAT IS NECESSARY IS PROOF THAT THE DEFENDANT HAS MANIFESTED AN ADOPTION OF BELIEF IN ITS TRUTH.

+ TIP 5: REMEMBER THAT RULE 806 FRE & TRE ALLOWS YOU TO IMPEACH THE CREDIBILITY FOR A NON-WITNESS CO-CONSPIRATOR DECLARANT, WHOSE STATEMENT IS OFFERED AGAINST YOUR CLIENT, BY ANY EVIDENCE THAT WOULD BE ADMISSIBLE FOR SUCH PURPOSE IF THE DECLARANT HAD ACTUALLY TESTIFIED AS A WITNESS. THIS INCLUDES YOUR RIGHT TO IMPEACH THE NON-TESTIFYING DECLARANT WITH PROOF OF: (1) ADMISSIBLE PRIOR CONVICTIONS UNDER RULE 609 FRE & TRE; (2) LACK OF PERCEPTION; (3) BIAS OR ANIMUS OR INTEREST; (4) PRIOR INCONSISTENT STATEMENT UNDER RULE 613 FRE & TRE WITHOUT THE NECESSITY OF AFFORDING THE DECLARANT AN OPPORTUNITY TO DENY OR EXPLAIN; (5) BAD CHARACTER EVIDENCE RE TRUTHFULNESS UNDER RULE 608 FRE & TRE, ETC. [NOTE: IT MAKES SENSE THAT THE RULES ALL0W YOU TO MAKE THIS ATTACK ON A NON-WITNESS. OTHERWISE, YOUR OPPONENT COULD WALL OFF IMPEACHING EVIDENCE SIMPLY BY INTRODUCING THE CO-CONSPIRATOR'S OUT-OF- COURT STATEMENTS AND KEEPING THE CO-CONSPIRATOR OFF THE STAND.]

+ TIP 6: IF YOU PLAN TO INTRODUCE A SUMMARY OF VOLUMINOUS WRITINGS, RECORDINGS, AND/OR PHOTOGRAPHS THAT CANNOT BE CONVENIENTLY EXAMINED IN COURT, BE SURE TO MAKE ARANGEMENTS FOR THE OPPOSITION TO VIEW THE DOCUMENTS UNDERLYING THE SUMMARY MATERIALS AT A REASONABLE TIME AND PLACE. BEND OVER BACKWARDS TO ACCOMMODATE THE OPPOSITION BECAUSE THE COURT HAS THE POWER TO ORDER THAT THE MATERIALS BE PRODUCED IN COURT. SEE RULE 1006 FRE & TRE. ALSO, IF YOUR SUMMARY INCLUDES BUSINESS RECORDS, SAVE YOURSELF THE TROUBLE OF HAVING TO CALL A LIVE AUTHENTICATING WITNESS BY USING A SELF-AUTHENTICATION CERTIFICATE TO ESTABLISH THE NECESSARY PREDICATE FOR THE EXCEPTION. SEE RULE 902 FRE & TRE, CONTAINING THE FORM FOR THE CERTIFICATE.

+ TIP 7: IF YOUR OBJECTION TO EVIDENCE IS SUSTAINED AND THE OPPOSING COUNSEL MAKES AN OFFER OF PROOF, REQUEST THAT THE OFFER OF PROOF BE IN WITNESS FORM, I.E., THAT THE OFFER OF PROOF BE IN Q & A OF THE WITNESS. YOU HAVE THIS RIGHT UNDER RULE 103(B) TRE. HOWEVER, FRE 103(C) VESTS THE TRIAL JUDGE WITH THE DECISION OF WHETHER THE OFFER OF PROOF IS TO BE IN Q & A FORM. DURING THE PROFFER (OFFER OF PROOF), WHEN THE OPPONENT IS FINISHED WITH HIS DIRECT QUESTIONS OF THE WITNESS YOU SHOULD BE ENTITLED TO CROSS-EXAMINE THE WITNESS DURING THE OFFER OF PROOF RE THE ADMISSIBILITY OF THE DISPUTED EVIDENCE. BLUNT THE FORCE OF THE OPPONENT'S OFFER OF PROOF BY SHOWING ITS EVIDENTIARY FALLIBILITY. OTHERWISE, THE OPPONENT'S LAWYER OFFER OF PROOF MAY BE SO WHOLLY ONE-SIDED THAT THE COURT WILL REVERSE ITS RULING AND ADMIT THE  HARMFUL EVIDENCE.