TRIAL OBJECTIONS. Considerations Effect on the jury Scrutinous Judiciously Effective/Disruptive

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1 TRIAL OBJECTIONS Albert E. Durkin, Esq. Miroballi Durkin & Rudin LLC Considerations Effect on the jury Scrutinous Judiciously Effective/Disruptive Will the answer hurt your case? Protecting the record for appeal Essential if not in there its not in there. Tactical device Disrupt the flow Preventative measures Motions in Limine and Side Bars Jury Disregard Unringing the Bell 1

2 Illinois Rules of Evidence Codifies Case Law Rules Adapted by the Supreme Court on September 27, 2010 Effective January 1, 2011 See How to Make Objections Timeliness and Professionally Must be made before answer is given. Move to Strike Hard to unring the bell Legal Basis Do not shake head, roll your eyes. You can still get across to jury where judge is wrong or meeting out justice unevenly. 2

3 Relevance Illinois Rules of Evidence Relevant Evidence is usually admissible Relevancy like beauty is in the eyes of the beholder. Irrelevant Evidence is usually not admissible Beholder at trial is the judge. Confuse Jury Prejudicial Cumulative Relevant Exceptions to Admissibility Unfair prejudice misleading the jury or undue delay Character evidence WDA Bias Evidence of offers Bad Faith Another Purpose Evidence of payment for medical bills Rule 409 Who paid is not relevant Not admissible for liability Evidence of liability insurance Rule 411 Except Control or Agent Bias 3

4 Privileges Illinois Rule of Evidence 501 Attorney/Client Spousal Governed by common law Rules of Governing Witnesses Rule Rule 601 Every person is a competent witness except as provided by: Illinois Rules of Evidence Supreme Court Rules & Statutes Rule 606 Juror Witness Not Admissible Extraveous 4

5 Credibility Impeachment Rule 608 Character Evidence reputation and opinion Rule 609 Conviction of a crime 10 years Court weigh probative/prejudicial value Mode of Interrogation Rule 611 Scope Leading questions No Direct- Examination Unless Address Yes Cross- Examination 5

6 Opinion and Expert Testimony Rule Rule 704 Ultimate Issue Ok Rule 705 No Facts First On No need for discovering fact bases first when testifying. Supreme Court Rule 213 Rule 701 Non- expert limited to perception opinions Rule Frye Hearing Expert subject to Frye test Weight Not Admissibility Hearsay Rule Definition: an out of court statement offered to prove the truth of the matter asserted. Rule 802 INADMISSIBLE 6

7 Exceptions to Hearsay Inadmissibility Rule 803 Availability of the declarant is immaterial Rule 803(1) Excited utterance Rule 803(3) Existing mental or physical condition He seemed mad Screamed pain Exceptions - Memory Rule 803(5) Recorded recollection Deposition Memo Rule 803 (6) Records of regularly conducted activity Business Records Rule 804 (4) Statement for purpose of medical diagnosis Exceptions to Hearsay Inadmissibility Rule 804 Where declarant is unavailable Does Not Exclude Rule 804 (b)(1) Evidence Deposition Former testimony Rule 804 (b)(2) v Statement under belief of impending death Peterson Case Rule 804(b)(3) Statement against interest Rule 804 (b)(4) Statement of personal or family history Said he was divorced Rule 804 (b)(5) Forfeiture by wrongdoings Peterson got rid of witness 7

8 Authentication Rule Satisfied by evidence sufficient to find that the matter in question is what it claims to be. Rule 901(B)(5) Rule 901(B)(1) Handwriting Rule 901(B)(6) Voice identification Telephone conversations Contents of Writings Rule Rule 1001(3) 1002 Generally, to prove the content of the writing, the original is required. Rule Original is not required if: Lost Not obtainable In possession of opponent The writing is not related to a controlling issue 8

9 Form Objections Legal conclusion Asked and answered Speculative Compound Misstates evidence Cumulative Argumentative Narrative Unresponsive Assumes facts not in evidence 213 Miscellaneous Objections Dead Man s Act 735 ILCS 5/8-201 Wrongful Death Act 740 ILCS 180/ 9

10 Trial Objections By: Albert E. Durkin Miroballi Durkin & Rudin, LLC I. Considerations for making objections during trial A. Effect on the jury: Jurors do not like constant objections. They may see objections as lawyers who are trying to hide the truth from them. B. Will the answer hurt your case? If not, then don t object. C. Protecting the record for appeal D. Tactical device: Use objections to disrupt the other counsel s flow. E. Preventative measures: Using motions in limine and side bar arguments to prevent the jury from hearing inadmissible evidence. II. Illinois Rules of Evidence On January 1, 2011, by order of the Illinois Supreme Court, the Illinois Rules of Evidence went into effect governing the proceedings in the courts of Illinois. Prior to the Illinois Rules of Evidence, rules of evidence in Illinois were dispersed through case law, statute, and Supreme Court Rules. The Rules of Evidence do not supersede any statutory rules of evidence. III. How to Make Objections A. Timeliness: If a question is improper an objection must be made before an answer is given. Move to strike if not quick enough. B. Legal Bases. Relevance Illinois Rules of Evidence Relevant evidence is usually admissible, and irrelevant evidence is inadmissible. a. Definition of relevant: evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. b. Exceptions to admissibility 1) Relevant evidence that s probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury or undue delay, waste of time or cumulative evidence can be excluded. 2) Character evidence is generally excluded. a) Where character evidence is admissible proof may be made by testimony as to reputation and opinion. b) Specific instances of conduct can only be used where the accused raises self-defense or in cases where the person s character is an essential element of a claim or defense(i.e. Defamation, negligent hiring, or negligent entrustment. 3) Evidence of furnishing offers of value for the claim is generally excluded. However, this evidence is permitted to show bias, establish bad faith, etc. 4) Evidence of payment of medical bills or offering to pay is not admissible to prove liability for injury. 1

11 5) Rule 411 Evidence that a person was or was not insured against liability is not admissible to show whether someone acted negligently. It can be allowed to show agency, ownership, control or bias and prejudice of witness. 6) Evidence of the habit of a person or routine practice of an organization is relevant to prove that conduct on a particular occasion was in conformity with the habit. 2. Privileges Illinois Rule of Evidence 501 The privilege of a witness, person, government, or state shall be governed by the principles of the common law as they may be interpreted by Illinois courts. Attorney/Client; Spousal 3. Rules Governing Witnesses Rule a) Every person is competent to be a witness, except as otherwise provided by Illinois Rules of Evidence, statutes, or other Supreme Court Rules. b) A witness may not testify to a matter unless evidence supports a finding that the witness has personal knowledge of the matter. c) Rule 607 Who May Impeach The credibility of a witness may be attacked by any party, including the party that called the witness. 1) Except the party calling the witness may only attack by means of a prior inconsistent statement by showing of affirmative damage. d) Credibility through Character Evidence 1) through reputation and opinion 2) evidence may only refer to truthfulness or untruthfulness 3) evidence for truthful character is only admissible after witnesses character for truthfulness has been attacked by opinion or reputation e) Credibility evidence through conviction of a crime 1) Rule 609 Evidence that witness has been convicted of a crime that was punishable by death or imprisonment in excess of one year or the crime involved dishonest or false statement regardless of the punishment 2) the court determines if the probative value of the evidence substantially outweighed by the danger of unfair prejudice. 3) the conviction is not admissible if more than 10 years has elapsed since the date of conviction or the release of the witness from confinement, whichever is later. 4) evidence of a conviction is not admissible if the conviction has been pardoned, annulled or other equivalent procedures took place and the procedure which the same was granted required a substantial showing of rehabilitation or was based on innocence. 5) juvenile adjudications are generally not admissible 2

12 f) Mode of interrogation 1) Rule 611 (b) cross-examination should be limited to the subject of direct and matters of credibility 2) Rule 611 (c) leading questions should not be used on direct examination except when a party calls a hostile witness or an adverse party 4. Opinion and Expert Testimony Rule a) subject to Illinois Supreme Court Rule 213 b) If not an expert, witness opinion testimony is limited to those rationally based on the perception of the witness and helpful to under the witness testimony or the determination of a fact in issue and not based on scientific, technical or other specialized knowledge. c) Expert testimony is governed by the Frye test. Dolandson v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314 (2002). d) Expert testimony otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the jury. 5. Hearsay (Illinois Rules of Evidence ): An out of court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible. a. A statement is: (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. b. Prior Statements by the witness are not considered hearsay. (Only in Criminal Trials): Declarant s testimony at a trial or hearing that is subject to a cross examination concerning the statement and the statement is: (1) inconsistent with the testimony at the trial or hearing and (a) (b) was made under oath at a trial, hearing or depositions narrates or explains an event or condition which declarant had personal knowledge, and 1. the statement is proved to have been written or signed by the declarant or 2. the declarant acknowledged under oath making the statement 3. The statement is proved to be recorded accurately. (2) a statement of identification of a person made after perceiving the person. c. Admissions by party-opponent are not hearsay: The statement is offered against a party and is (A) the party s own statement in either an individual or representative capacity, (B) a statement which the party has manifested an adoption or belief in its truth; (C) a statement by a person authorized by the party to make such a statement; (D) statement by party s agent or servant concerning a matter within the scoop of the 3

13 agency or employment made during the existence of the relationship; (E) statement made by co-conspirator during conspiracy in furtherance of conspiracy; or (F) statement by person on behalf of an entity in privity with the party d. Exceptions to Hearsay Rule that are admissible (Rule 803 and Rule 804): 1) Exceptions where the availably of the declarant is immaterial: a) excited utterance: statement relating to a startling event or condition while declarant was under stress of excited caused by the event or condition. b) Existing mental, emotional or physical condition (such as intent, plain, motive, design, mental felling, pain and bodily health). NOT INCLUDING memory or belief to prove the fact remembered c) Statements for purpose of medical diagnosis or treatment. NOT INCLUDING statements to a health care provider consulted solely for preparing for litigation or obtaining testimony for trial d) Recorded recollection: a memorandum or record concerning a matter which witness once had knowledge but now has insufficient recollection. e) Records of regularly conducted activity: a memo or report of acts, events, conditions, opinions, made at or near the time by a person with knowledge, if kept in the course of regularly conducted business and it was the regular practice of that business to make the memo or report as shown by testimony of the custodian, unless the course of information or the method of preparation, indicate lack of trustworthiness. f) Public Records EXCLUDING police accident reports, and in criminal cases medical records and matters observed by law enforcement personnel. g) Vital Statistics Records: Birth; Death and Marriage h) Records of Religious Organizations i) Marriage and Baptismal Records j) Family Records: statements of fact concerning personal or family history in family Bibles, genealogies, charts, inscriptions on portraits, urns, crypts or tombstones. k) Records of documents affecting interest in property l) Receipt of a Paid Bill m) Reputation as to Character n) Reputation as to Boundaries o) Statements in Ancient Documents p) Statements in Interest in Property Documents q) Reputation concerning personal or family history: reputation of a person among his family by blood, adoptions or marriage concerning the person s birth, adoption, marriage, divorce, death, legitimacy, relationships by blood adoption or marriage r) Judgment of Conviction s) Judgment on Family or Boundaries 4

14 t) Statements in Ancient Documents: Statements in documents in existence for 20 years or more the authenticity which is established. u) Reputation as to Character: among associates or in the community v) Reputation concerning boundaries or general history w) Market Reports 2) Exceptions where declarant is unavailable: Rule 804 a) Definition of Unavailable Declarant 1. person exempted by ruling of the court on grounds of privilege from testifying concerning the subject matter of the declarant s statement; 2. Person who persists in refusing to testify concerning matter of declarant s statement despite court order; 3. Person testifies to lack of memory of the subject matter of the declarant s statement; 4. Person is unable to be present because of death or existing physical or mental illness; or 5. Person is absent from the hearing and the proponent of statement has been unable to procure attendance by process or other reasonable means. b. Not Unavailable: A declarant is not unavailable as witness if refusal, claim of lack of memory, inability or absences is during to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying. c. Exceptions to Hearsay rule if the declarant is an unavailable witness: 1. Former Testimony: testimony given as a witness at another hearing of the same or different proceeding or in an evidence deposition taken in compliance with the law in the same or different proceeding, a predecessor in interest had an opportunity and similar motive to develop the testimony by direct, cross, or redirect, or in a discovery deposition as provided by Supreme Court Rule Statement under belief (only in criminal) 3 Statement against interest: A statement which was at the time of its making so afar contrary to declarant s pecuniary or proprietary interest, or so far tended to the subject of the declarant s civil or criminal liability, that a reasonable person in the declarant s position would not have made the statement unless believing it to be true. 4. Statement of Personal or Family History 5. Forfeiture by Wrongdoings 5. Authentication Rules Authentication is satisfied by evidence sufficient to find that the matter in question is what its propend claims. a) Voice identification 5

15 b) Telephone Conversations: evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business if in the case of a person show the person answering to be the one called or in the case of a business the call was made to the business and the conversation related to business reasonably transacted over the phone. c) Self Authentication: extrinsic evidence of authenticity is not required for: 1) domestic public documents under seal 2) certified copies of public records 3) official publications 4) newspapers and periodicals 5) trade inscriptions 6) commercial paper 6. Contents of Writings Rules a) to prove the content of a writing or recording or photograph, the original is required. b) A duplicate is admissible to the same extent as original unless a genuine question is raised to the authenticity of the original or in the circumstances it would be unfair to admit the duplicate. c) original is not required if it is lost or destroyed; not obtainable; in the possession of the opponent, or the writing is not closely related to a controlling issue. d) The contents of writings may be proven by the testimony offered or by party s written admission without the original. 7. Form a) legal conclusion b) leading: the question suggests the desired answer to the witness c) asked and answered(repetitive) d) speculative e) compound question: question that brings up two separate facts within one question f) misstates evidence/misquotes witness g) cumulative: h) argumentative: question that is essentially an argument to the jury; elicits no new information; states a conclusion and asks witness to agree with it. i) assumes facts not in evidence j) confusing/misleading/vague k) narrative: A long narrative answer is objectionable because it allows a witness to inject inadmissible evidence into trial without giving opposing counsel an opportunity to make a timely objection. l) unresponsive/volunteered: answer doesn t directly respond to question. m) assumes facts not in evidence 6

16 8. Miscellaneous Objections 1) Statutory Rules a) Dead Man s Act 735 ILCS 5/8-201 b) Wrongful Death Act 740 ILCS 180/ 7