At the Hearing
What is the order of events in the courtroom?
Each state and court may have variations on this, but this is generally the order of events:
- The judge, clerk, or bailiff will call your case. In some courts, a mediator might first talk with you, and then with the other party, to see if you might be able to reach an agreement without a trial.
- In a criminal case or in other types of formal or more complicated cases, the judge might ask the parties to give opening statements. This is your chance to talk about what evidence you will show at trial and how you want the judge or jury to rule, based on that evidence.
- In less formal proceedings, the bailiff or the clerk will swear you and the other party in by asking you both to state your names and to swear or affirm to tell the truth.
- The party that filed the first court papers, usually called the complaint or the petition, is considered the plaintiff or the petitioner. The plaintiff/petitioner will tell his/her side of the story first. This includes the party’s testimony, calling any witnesses s/he may have, and entering any evidence that s/he has. We have more detailed information about this process in the rest of this section.
- The other party or his/her lawyer may ask you and your witnesses questions as part of cross-examination, which you must answer truthfully. You may have the right to object to certain questions that the other party asks.
- If your witnesses testimony was damaged during cross examination, you may be able to ask clarifying questions during re-direct.
- The judge might also ask questions to you or to any other witnesses.
- Next, the other party, who will usually be known as the defendant or respondent, will be allowed to present his/her case. S/he can testify and tell his/her side of what happened, call witnesses, and enter his/her evidence. It may be very different from yours. The same principles apply as mentioned earlier, about the right to ask cross examination questions and make objections during the abuser’s testimony, if legally appropriate.
- The judge might then ask for closing statements, or not, depending on the court and the type of case. Closing statements are your chance to sum up the evidence and ask the judge again for a specific decision.
- The judge will make a decision after hearing both sides and considering the evidence. The judge may make the decision right away or may take a recess to give the decision. The recess may be only for a few hours or it may take days or weeks to give the final decision.
- If your case is for a restraining order. The judge may grant you and sign the final restraining order that day at your hearing. If so, then make sure you get a copy, review it, and ask the judge if you have any questions about it. If the judge is not giving his/her decision that day, make sure to ask the judge to extend your temporary restraining order if you have one.
What do I keep in mind when going to court?
- Be on time.
- Have your witnesses there and ready.
- Have your evidence ready.
- If you have subpoenaed witnesses or documents and they are not in court, you should inform the judge.
- Dress appropriately (as if you had a job interview).
- Speak directly to the judge; s/he should understand if you feel nervous. Do not speak or argue with the abuser during the hearing. Although it may be upsetting to hear the abuser say things that are untrue, you should have the opportunity to tell your story directly to the judge.
- Always address the judge as “Your Honor.”
- Be prepared to spend all day in court. (There may be hearings before yours.) If you have children, try to find someone to take care of them while you are in court.
- If the abuser comes to court with a lawyer and you do not have a lawyer, ask the judge for a “continuance” so you can look for a lawyer.
- While you are waiting to be called, it is your right to move seats if the abuser sits next to you, and to receive help from court staff in keeping the abuser away from you. Tell the bailiff or any sheriff, police or security guard if you are afraid for your safety.
- Stand when the judge enters and sit when the judge or bailiff asks you to.
- Try to remain calm but it is OK if you show emotion.
- Take deep breaths if you feel yourself getting tense. Never lose your temper in the courtroom.
- Always tell the truth.
- If you don’t understand a question, just say so. Don’t answer a question that you don’t understand.
- If you don’t know the answer to a question, just say so. Never make up an answer.
- Remember that you know your story better than anyone - you are the expert. Don’t let the abuser or the judge or a lawyer throw you off.
Why would I enter evidence in court?
The only way a judge can decide a court case is based on the evidence the parties present during the case. In many cases, the evidence that a judge has is mostly testimony from the parties and testimony from their witnesses. However, there are also other kinds of evidence that you may be able to show to the judge to help prove your case. Additional evidence can be especially important if the other party is going to lie or tell a different version of what happened than you are. When there is conflicting testimony, the judge has to decide who s/he believes is telling the truth. The judge wil often look to other evidence and witnesses to decide which party is telling the truth.
If you have a case that involves domestic violence, having evidence to present that corroborates your version of the events can be especially important. Many survivors of domestic violence face disbelieving judges who are quick to accept the abuser’s efforts to explain away the violent incidents or behavior. Some abusers even claim that the violence did not happen at all and that the survivor is making up allegations to try to get an advantage in court. Others will claim that the victim is actually the abusive partner and that any injuries to the victim were from self-defense. It is important to anticipate these tactics and have evidence ready that you can show the judge to prove your version of the events and to get the judge to rule in your favor.
What evidence can I show the judge?
You can give almost anything to the court as evidence as long as it is relevant to the case and it does not violate one of the rules of evidence. For example, you generally cannot give in a letter that someone wrote for your trial or tell the judge something that someone else said due to the rule against hearsay. The most common types of evidence are:
- Testimonial – The testimony presented by the parties and any witnesses that they call to help with their case.
- Expert – Testimony from a witness who has expertise in a technical area and will give an opinion that the judge could rely upon when deciding the outcome of the case.
- Physical/real evidence –Any physical, tangible, or touchable thing that relates to the case. For example, a torn shirt from a domestic violence incident, an item that may have been broken by the abuser, a weapon, etc.
- Documentary – Letters, emails, photographs, and other documents relevant to the case.
- Demonstrative – A chart or illustration that you create for the trial to explain something to the judge that might not be easily understood without some visual assistance. For example, when describing why you had to use physical force in self-defense, you might draw out the layout of the house and indicate where the parties were standing to show why you could not escape.
Does testimony count as evidence?
Testimony is a kind of evidence, and it is often the only evidence that a judge has when deciding a case. When you are under oath in court and you are testifying to the judge, what you say is considered to be truthful unless it is somehow challenged (“rebutted”) by the other party. If the other party can show the judge that you aren’t telling the truth, through testimony, evidence, or effective cross-examination, s/he can “rebut” your testimony. Then a judge has to make a decision on who s/he thinks is being more truthful (“credible”).
Presenting your case
How do I introduce (“call”) a witness?
Introducing a witness in court is referred to as “calling” your witness. However, there are a few things to think about before you call a witness to testify.
First, you need to know what your witness has to say and whether it is helpful for your case.
Then, you need to find out if the witness is willing to testify in court. Many people are happy to talk about a situation one-on-one but don’t want to testify in court. If a witness is not willing to testify, you might have to get a subpoena. A subpoena is a court order that makes a person come to court to testify. Once you know who your witnesses will be, you might have to tell the other side. This often happens during discovery with a witness list. Depending on the state’s laws and the type of court case you are in, some courts will allow you to call witnesses without a list.
Make sure to let your witnesses know when to come to court. Your witnesses might have to wait outside of the courtroom until it is their turn to testify. The reason they have to wait in the hall or waiting area is so that other testimony doesn’t change their story. This is called “sequestering” a witness. The sequestering process may take some time, and so you can suggest that your witness bring a magazine or some other item to keep them occupied while they wait.
Although the process might be different from state to state and from court to court, in most courts, you will let the judge know who it is that you want to call to come and testify by saying “Your Honor, I call my first witness, Jane Doe.” Then, the court officer will generally go into the waiting room to alert the witness. The person can then enter the courtroom and s/he will be sworn in. Once your witness is seated in the witness chair, known as the “witness stand,” you can begin to question him/her.
How do I question a witness?
You can start questioning your witnesses, one at a time, by asking them their name and asking them some background information, like how they know the parties in the case. You will then have to get into asking questions about the event they witnessed or any other issue they are there to testify about. It is best if you can prepare with your witnesses beforehand so you know what they will testify about. This will also help you decide what questions you need to ask for them to relay that information to the judge.
When you question your own witnesses, this is called direct examination. On direct examination, you will usually only be allowed to ask open-ended questions that do not lead your witnesses in a certain way or influence their answers. “Leading questions,” where you suggest the answer to the question, are not allowed.
Here are some good and bad examples of direct examination questions:
Open-ended (okay to ask)
Leading (not okay to ask)
“What color is the sky?”
“The sky is blue, isn’t it?”
“Could you please tell the court what you saw on January 15th, 2018?”
“You saw the respondent abuse me on January 15th, 2018, didn’t you?”
For each new topic that you question your witness about, you will need to establish how the witness knows the answer. For example, let’s say you want to ask the question:
“Could you please tell the court what you saw on January 15th, 2018 at noon?”
You must first ask questions that help establish how the witness knows that anything happened at all on January 15th, which is known as “laying a foundation.” This could include questions such as:
- Where were you on January 15th, 2018?
- Who was with you on January 15th, 2018?
- Do you remember what happened that day at noon?
And then, after you laid this “foundation,” you can ask the important question: Could you please tell the court what you saw on January 15th, 2018 at noon?
After you have finished asking your witnesses questions, the other side will have a chance to ask them questions, which is called cross-examination.
Note: When your witnesses are testifying, your witnesses can only testify as to events that they have personal knowledge of. They are not allowed to testify about things they have heard secondhand, this is called hearsay.
When I testify, who will question me?
When you are testifying, you do not need to ask yourself questions and answer them. Instead, you can say what happened in “story” form or the judge may ask you questions. Remember to include information like the time and day that an instance of abuse happened, where it happened, who was there, and what actually happened. After you testify, the respondent, or his/her attorney if s/he is represented, will get a chance to “cross-examine” you to try to discredit things that you said.
How do I “cross-examine” a witness?
Cross-examining a witness can be very difficult, even for lawyers who have spent a lot of time in court. The purpose of cross-examination is to create doubt about the truthfulness of the witness’s testimony, especially as it applies to the incidents that are at issue in the case. Cross-examination questions are usually the opposite of direct examination questions. In a direct examination, you have to ask the witness open-ended questions that allow them to fully explain their answer. A cross- examination question should be very pointed and requires only a one-word answer, preferably “yes” or “no.”
Questions related to prior testimony
The questions that you ask on cross-examination have to be related, in some way, to the issues that the witness talked about during direct examination. You can use cross-examination to point out inconsistencies in the witness’s story. By highlighting testimony that does not add up, you can cast a light of doubt on everything that the witness has said. Here is an example of this type of cross-examination line of questioning where you first confirm what the witness said on direct and then point out inconsistencies:
- You: Didn’t you testify that you saw me with my husband at the park on Saturday and that he did not hit me?
- Witness: Yes, that’s what I said.
- You: And you said that you took the blue line bus to get to the park that day?
- Witness: Yes, that’s true.
- You: Isn’t it true that the blue line bus does not run on weekends?
- Witness: Uh, yes – it only runs during the week.
- You: No further questions Your Honor.
As you can see, once you have put the witness into a position where his/her testimony comes into doubt, you do not want to ask another question to allow him/her to clarify or provide an explanation. It is best to end the cross-examination and let the doubt linger or move onto a different line of questioning. Sometimes a great cross-examination isn’t defined by the questions that you do ask, it is defined by the questions that you keep yourself from asking.
Questions related to underlying motivation or bias
Your cross-examination can also include questions about the witness’s underlying motivations for testifying or any bias that the witness may have in favor of the other party or against you. For example, you could ask:
- Isn’t it true that you owe the other party money? And isn’t it your hope that he will forgive the loan if you testify for him today?
- Isn’t it true that the other party is dating your sister? And so you want to get on the other party’s good side by testifying for him today?
- Isn’t it true that I broke up with you in high school? And you were so upset you promised to get back at me some day?
Questions related to crimes involving dishonesty
You can also ask questions that would show that the witness has been convicted of a crime involving dishonesty, which is known as a “crime involving moral turpitude.” These types of convictions could make a judge think the witness is less believable (credible). However, be careful to only ask these questions if you know that the person was convicted. For example, you could ask:
- Isn’t it true that you have been convicted of fraud?
- Weren’t you convicted of writing bad checks?
The questions in the last two categories, above, all suggest that the witness has a reason to not be truthful or hasn’t been truthful in the past. If you are asking questions like this though, you want to make sure that you know the answer before you ask and that you are only asking the questions that will be answered in a way to help your case.
What if my witness’s credibility is damaged during cross-examination?
Just like you will be cross-examining the opposing party’s witnesses to try to make them less believable (“damage their credibility”), the same thing may happen to your witnesses. If your witness’s credibility is damaged in this way, you may be able to ask questions on “re-direct” after your witness is cross-examined. On re-direct, you can only ask questions related to the cross-examination. Using open-ended questions, you can ask for a witness to provide more detail and explain away any testimony that you believe was damaging.
For instance, let’s take the example given in the prior question where you cross-examined the opposing party’s witness regarding the blue bus line. If the opposing party got a chance to re-direct the witness, it might look like this:
- Opposing party: You testified on cross-examination that you took the blue bus line to the park on Saturday but then you acknowledged that the blue bus line only runs on weekdays. Can you explain this inconsistency in your testimony?
- Witness: I got confused because I always take the blue line bus to the park but I usually go on Fridays. Now I remember that I waited for the bus that Saturday and it never came so I took an Uber. I have the proof on my phone actually of that Uber ride and it shows the date and time.
Keep the possibility of re-direct in mind if your witnesses’ testimony has been damaged by the other party’s cross-examination, but don’t ask for a re-direct unless it is absolutely necessary. Re-direct can open the door to re-cross, which could produce more damaging testimony. Also, judges often won’t allow re-direct in an effort to move trials along.
Is there a process to admit evidence other than testimony?
Every court is different, but generally there is a certain way that evidence is entered into the court record.
- Have the evidence marked by the court clerk. The clerk will assign a number to the evidence, like “Petitioner’s Exhibit 1,” so that the court can keep track of the evidence. This also helps if the case is appealed so that anyone reading the transcript knows what evidence is being referred to. If the evidence is a document or a photograph, you should bring extra copies to give to the other party and to keep for yourself. During the trial, it is helpful to mark down notes for yourself about what number each piece of evidence is given so that you can refer to it during the trial as needed.
- Then you will ask the judge if you can show the evidence to the witness. The judge may let you walk up to the witness, which is known as “approaching the witness,” or the judge may order the court officer to take the evidence from you and hand it to the witness.
- Once the witness has the evidence, you will have the witness describe what the evidence is and where it came from, in very basic terms. (Note: If you do not have a witness, you could describe and enter the evidence while you are testifying.) For example, you could ask:
- You: “What is Petitioner’s Exhibit 1?”
- Witness: “It is a photograph showing a knife.”
- You: “Have you ever seen that knife before?”
- Witness: “Yes, it is the other party’s knife.”
- You: “How do you know?”
- Witness: “The knife has a carving of a bear on the handle, and it has the other party’s initials on the blade. I have seen it at his house and in his car glovebox.”
- You: “Is this a fair and accurate depiction of the knife?”
- Witness: “Yes it is.”
- You: “What is Petitioner’s Exhibit 1?”
Asking if the photo is a “fair and accurate depiction” is typical language that is used to show that the photograph accurately reflects the item in the picture, which is known as “authenticating” the photograph. Note: A witness does not have to be the one who took a photograph to be able to authenticate it although if the witness did take the photograph, you can ask about that.
You can use similar questions if you are trying to admit physical evidence, such as the actual knife, . However, instead of asking if it is a “fair and accurate depiction,” you would ask “Is this the actual knife?” Similarly, if you are trying to enter documents into evidence, your last question would be “Has this document been altered in any way?” For videos, you could ask the following questions:
- You: “Have you seen this disc before?”
- Witness: “Yes, this is the compact disc that I created with the video of the altercation on June 7, 2019.”
- You: “How do you know that?”
- Witness: “I took the original video on my cell phone, and then I transferred it to this disc. I labeled the disc ‘June 7, 2019 fight’ and that is my handwriting on the disc.”
- You: “Was the video altered in any way?”
- Witness: “No.”
- You: “Does the video show a clear and accurate depiction of what occurred between you and the other party on June 7, 2019?”
- Witness: “Yes.”
- After you have laid the foundation for the evidence, you can ask the judge if it can be admitted into evidence. The other party can object to your evidence being admitted. The other party could also ask the witness additional questions about the evidence to before deciding whether to object to the evidence or not. These questions are called “voir dire.” Keep in mind, when the other party is trying to admit evidence, you also can object or ask voir dire questions.
- If the judge accepts the evidence, it will be marked as “admitted” and you are free to ask questions about it with any of the people who are testifying. The judge will usually keep the evidence in the court, so if you are trying to admit something from your cell phone or another item that you need back, it is best to bring in printed screenshots or photographs if possible.
Objecting to evidence
What is an objection?
Why would I want to object to evidence?
Once evidence is given to the judge, it is part of the official court record, and the judge can consider it when deciding your case. A successful objection will keep evidence from entering the record. This means the judge or jury cannot use that evidence to decide your case.
You would want to object to evidence if:
- it harms your case; and
- there is a rule of evidence that says the evidence should not be allowed.
Here are a couple more reasons why it is important to object to evidence:
- Making an objection can be important if you later decide to appeal the case. Any time you object, the judge might disagree and allow the evidence into the record. If you lose your case, and the evidence that was allowed in was important to the case, then you might be able to appeal based on the judge’s decision to allow in the evidence. However, if you did not object to the evidence when it was entered, then you may not be able to appeal based on that issue – even if the evidence should not have been allowed in. Please see our Appeals page for more information on what an appeal is.
- Sometimes, if your witness is having difficulties while testifying under cross-examination, you may want to object to a question to disrupt the flow of questioning. This can give your witness a chance to regroup and hopefully answer the following questions better. This tactic should be used sparingly, however, because it can backfire if the judge thinks you are only objecting to be disruptive. You must have a valid basis to object, like if the question has been asked and answered or if the other attorney is badgering the witness. Every time you object, make sure you have a reason for the objection and you are prepared to explain it.
Make sure that you only object when it is needed. Objecting too often to evidence without a valid reason can make it more difficult for you when you do make a valid objection. The judge may not take any of your objections seriously and you may find yourself in a “boy who cried wolf” situation. Too many objections might also affect your rapport with the judge or jury.
How do I make an objection?
The rules of evidence guide what kind of objections you can make. To object, you have to say “Objection” as soon as you hear statement in testimony or a question posed to a witness that is objectionable. You can stand up if you need help getting the judge’s attention. You can object to an answer that a witness is giving and you can also object to a question from the opposing party, if the question itself violates a rule of evidence. If the other party is presenting physical evidence, which could be photographs, documents, etc., you can object at any time before the judge admits the evidence into the record. The judge might ask you what the basis is for your objection. You should be prepared to tell the judge why it is that you are objecting, based on the rules of evidence.
After you make an objection, the judge then decides whether the objection should be:
- sustained, which means the evidence should not be considered; or
- overruled, which means the evidence can be considered.
What are some common objections?
Here are some common reasons for objecting, which may appear in your state’s rules of evidence.
To skip to a specific section, click on the name of that objection: Relevance, Unfair/prejudicial, Leading question, Compound question, Argumentative, Asked and answered, Vague, Foundation issues, Non-responsive, Speculation, Opinion, Hearsay
You can object to the relevance of evidence if you think a piece of evidence or something a witness is saying has nothing to do with the case or it is not important in determining who should win in court.
Example: Asking how many sexual partners someone has had wouldn’t be relevant in a protection order case.
Example: Evidence that one of the parties has been in jail before may be relevant, but that evidence may also be unfairly prejudicial if it paints the party in a bad light to the judge or jury.
If the other party poses a question on direct examination that leads the witness to a certain answer, then you can object to the question as leading. This is usually the case with “yes” or “no” questions. Keep in mind that the judge might allow some leading questions during direct examination for simple background information to move the testimony along faster. For example, let’s say the other party’s mother is testifying, the judge might allow the question “You are the respondent’s mother, correct?” instead of “How do you know the respondent?” However, when someone is asking about issues that directly relate to the case, leading a witness is not allowed.
Example: On direct examination, this leading question could be objected to: “The car that you saw leave the scene of the robbery was blue, right?” Instead, it should be asked: “What color was the car that you saw leaving the scene of the robbery?”
A compound question is when two or more questions are combined as one question. Compound questions are not allowed because they can confuse the witness, the judge, and the jury. Also, it may not be clear for the court record which of the questions the witness is answering.
If you find yourself asking a compound question, don’t get flustered with the other party’s objection and skip the issue entirely. Just separate out the questions, ask them one at a time, and they might then be allowed.
Example: Why did you go back into the house and what made you think you it was a good idea to then take the children away?
When the person asking cross-examination questions begins to argue with the witness, known as “badgering the witness,” then the other party can object to the questioning as argumentative.
- Opposing party’s attorney: “You are not afraid of my client, correct?”
- You: “Yes, I am.”
- Opposing party’s attorney: “Oh come on, how can you be afraid of a guy who weighs 120 lbs when you weigh 300 lbs?”
- You: “I am afraid of him no matter his weight.”
- Opposing party’s attorney: “Well, you didn’t look very afraid to me when you walked into court today.”
- You: “Objection, Your Honor, argumentative.”
Asked and answered
Sometimes during cross-examination, the person asking questions might ask the same question over and over again, perhaps in slightly different ways, or re-ask a question s/he had asked earlier in the testimony. What’s unique about this objection is that it could come up in two different scenarios, First, opposing counsel could repeatedly ask you or your witness the same question, hoping that contradicting answers will be given. Second, opposing counsel could repeatedly ask his/her own client the same question in slightly different ways, hoping that the client will give a better answer than one given before. Either way, a question can only be asked once, and after it has been answered, any further attempts to ask the question are objectionable.
- Other party: “Do you remember when I wrote you a check for $10,000?”
- You: “No, that never happened.”
- Other party: “You’re saying that I didn’t write you a check for $10,000?”
- You: “No, you didn’t.”
- Other party: “I’m talking about last year, you remember, the check I wrote for you, right?”
- You: “Objection Your Honor, asked and answered.”
A vague question is when it is difficult or impossible to tell what the question is about. You would want to object to a vague question that is asked of your witness because of the risk that the witness will misunderstand the question and say something that will hurt your case. If the question is objected to, the person asking the question might then be able to ask the question in a different way that makes more sense or is more specific.
Example: Let’s say the opposing party asks “Can you tell the court where you went earlier?” The term “earlier” is not specific enough; it’s vague. After an objection, the question could be rephrased to say “Can you tell the court where you went this morning right before you came to court?”
In addition, a question that refers to “this” or “that” might be too vague if there is no context as to what “this” or “that” refers to.
A question or response can be objectionable if a person failed to explain the background circumstances of how s/he knows the information s/he is testifying about, or are being asked about. When answering about specific facts, the witness has to set the stage and explain how s/he knows the information that s/he knows.
Example: A person can’t testify that it was a certain person’s voice on the phone, without first explaining that s/he had spoken with the person many times over the last few years and the call came from the same number.
When a witness starts responding to a question with information that is completely unrelated to the question, you can object to it as being “non-responsive.” This can be especially important in cross-examination when you are looking for very specific “yes” or “no” answers.
- You: “Isn’t it true that you put your hands around my neck after you pushed me on the ground?”
- Other party: “Well, yes I did.”
- You: “When I broke free, isn’t that how you got the bruises on your arms?”
- “Look, I didn’t mean to hurt you, I was just trying to get your attention and….”
- You: “Objection Your Honor, the answer is non-responsive.”
- Judge: “Please answer the question sir.”
In addition, sometimes when a witness is being questioned on direct examination, s/he will make an effort to explain away a bad answer during the next question, regardless of what the question asked is. This is another instance when you could object to the non-responsive answer.
- Other party’s lawyer: “How many time did you see your children last month?
- Other party: “Once.”
- Other party’s lawyer: “When is your next visit scheduled for?”
- Other party: “The reason I only saw them once last month is because their mother likes to play games and hang the children over my head and…”
- You: “Objection, Judge, non-responsive!”
The speculation objection can be used in two different situations. First, if a witness does not know a fact to be true or not, but testifies about it anyway, this testimony would be objectionable as speculation. A witness must have personal knowledge of a fact to testify about that fact and put it into the court record.
Example: A witness could not testify that s/he thinks a person left the house at 8:00 pm unless s/he actually saw the person leave the house, or s/he has some other valid basis for that belief.
Second, if a question that is posed can only be answered by using speculation, the question would be objectionable.
- Opposing attorney: “What do you think your sister was thinking when she left?”
- You: “Objection, Your Honor, the question calls for speculation.”
If a witness testifies about an opinion s/he has that is technical in nature and not based on any facts the witness has first-hand knowledge of, then you may be able to object based on it being their opinion. Generally, only a witness who has been recognized as an expert witness by the judge can offer an opinion.
Example: An abuser cannot testify that you are “crazy.” S/he can testify about behaviors s/he might have witnessed that s/he finds concerning. However, any testimony that might suggest some sort of diagnosis would usually be objectionable as opinion. Similarly, you could not testify definitively that the substance you found in the abuser’s glovebox was cocaine unless it was tested by a lab or the abuser admitted it. You could testify that you saw “a white powdery substance in a baggie that appeared to be cocaine,” based on your understanding of the drug and what you looked up online. However, a judge may allow testimony such as “I am a good mother” or “He is a good father” even though that is an opinion.
A person can only testify as to what s/he knows to be true, not what s/he heard from someone else. If a witness tries to testify about what a non-party told him/her or tries to enter into evidence something in writing that a non-party wrote, then the testimony or written evidence is objectionable as hearsay. However, there are hearsay exceptions that may apply. You can learn more in What is hearsay? and What are some hearsay exceptions?
When would I object to specific kinds of evidence?
The kind of evidence the other party is trying to give the judge will affect when and how you make an objection. Normally, an objection is made by simply saying, “I object,” or, “Objection.” If the reason for the objection is obvious, then the judge may make a ruling without making you explain why you are objecting. If the reason for your objection is not obvious, you should be prepared to explain the reason why you are objecting.
You can object at any point while a witness is testifying. This can be during or after a question, while the witness answers the question, or immediately after the witness finishes answering but before the next question is asked.
You can object during or after the question if the question itself is objectionable or if it calls for an answer that is objectionable. For example, the direct examination question is leading; a question calls for hearsay; or the witness does not have personal knowledge of what is being asked so the question calls for speculation.
You may object while the witness answers the question or after the answer is complete if the question itself is not objectionable, but while answering it, the witness says something that is objectionable. For example, the witness mentions that s/he heard from someone who heard from someone that something happened. This kind of response is most likely hearsay and you can interrupt the witness to object while the witness is answering or object immediately after the witness finishes answering. Note: If there is a jury, you should try to object as quickly as possible so that the jury doesn’t hear any objectionable testimony that they would have to try to forget.
Documentary or physical evidence
Parties have to go through a process to enter documentary or physical evidence into the court record. During that process, the party that is entering the evidence will show the document, item, etc., to the other party so that s/he can examine the document. At this point, you can object to the evidence by saying “Objection” and explaining why you feel the evidence should be kept out of the record. If you don’t have a reason to object at the moment that the evidence is first shown to you, it’s possible that you may come up with a reason to object after the witness is questioned about the evidence. The party entering the evidence may ask the judge for “permission to enter the evidence into the record” or may “offer the document marked for identification as Exhibit A into evidence.” This is another opportunity for you to object to the evidence. At this point, the judge might ask if you have any objections to the item being entered into evidence but if the judge doesn’t ask, you can still object. Be prepared to explain why the evidence should or should not be admitted.
Demonstrative evidence (charts, diagrams, etc.)
Because demonstrative evidence is usually a combination of testimony and documentary evidence, how you object will depend on what is actually happening in court. Sometimes a witness might draw a diagram in court and then the party questioning the witness may ask to admit the diagram into evidence. You may be able to object while the witness is testifying and drawing the diagram, or you could object at the point where the other party tries to enter the diagram into evidence. Sometimes an opposing lawyer or party may prepare demonstrative evidence ahead of time, which could be slideshows, poster boards, etc., and will ask for it to be admitted into the record as evidence but not during anyone’s testimony. If this is the case, you can object to the evidence being entered into the record at the time the opposing party offers it into evidence.
Keep in mind that for any form of evidence explained above, an objection should only be made if it is objectionable. In other words, there must be a reason for your objection, such as one of the ones listed in What are some common objections?
What is hearsay?
Technically, hearsay is defined as “an out-of-court statement admitted for the truth of the matter asserted.” To understand what hearsay means, we will break down each part of the definition:
- A statement can be what someone said out loud or a statement might also be written or typed on a document, like a letter, an email, a text message, a voicemail, or some other kind of record.
- Out of court means simply that the statement being entered into evidence, either through testimony or written on a document, was said or created outside of the courtroom and not during the trial or hearing.
- Admitted means given, presented, or entered in the court hearing. So, in most cases, it is evidence or testimony that a party, or a party’s witness, is giving to the court for the judge to consider when s/he makes a decision about the case.
- For the truth of the matter asserted means that the evidence or testimony is being presented to the court as proof of the fact contained in the statement. So, in other words, you want the judge to believe that whatever you testify that someone else said to you or what you show the judge that someone else wrote is true and you want the judge to rely on that information.
Whether or not you are offering a statement to the judge “for the truth of the matter” can depend on the context of the case. The same statement could be offered for two different reasons and one reason may not be hearsay. For example, if a witness testifies “He said ‘The weather sure is great today!’” this might not be hearsay if it is admitted just to show that someone said those words to the witness when they met. In other words, if the witness wants to show that this is how he greeted her. However, if the weather on a certain day is a major issue in the case, and the witness says “He said ‘The weather sure is great today!’” as a way to prove that the weather was, in fact, great, then a statement like this would be hearsay.
Let’s look at some examples of how to spot hearsay within the different types of evidence:
1) In testimony - In most instances, if a question asks for what a person said, or when a witness begins a sentence by saying “She said…” or “He said…” you will probably be able to object based on hearsay. For example:
- Questions that call for hearsay are objectionable:
- “What did he say to you?”
- “Can you tell me what the letter said?”
- Testimony about what someone else said is hearsay:
- “His sister told me that he has guns under his bed.”
- “My doctor said that I have a concussion.”
- “The teacher pulled me aside and said Johnny has been hitting other students.”
Remember, sometimes, a witness might be saying what the other person said, just to show that the other person said something, anything. If the content of what was said does not matter for the court case, then it is possible that the statement is not “admitted for the matter asserted,” and therefore it is not hearsay. For example:
- Testimony that is not trying to prove a fact about the case is not hearsay:
- “The officer said to stay calm.”
2) In documents – Letters, reports, texts, emails, or other documents that originated out of court can be excluded based on hearsay, unless they qualify for a hearsay exception, which many will. The following might all technically contain statements that are hearsay, and thus could be excluded from evidence – however, for many of these listed, exceptions apply that could allow them to be admitted into evidence:
- Facebook posts;
- utility bills;
- caseworkers’ notes;
- hospital records;
- police reports;
- report cards;
- therapists’ notes;
- drug test results.
If you plan to admit a document like one listed here into evidence, you should look through the hearsay exceptions and think about which would apply in your situation. The other side might not object to the documents, or the hearsay rules might be more relaxed in the court you are in, but it is good to know which exception will allow your evidence, just in case it becomes an issue.
What are some hearsay exceptions?
Most courts do not allow hearsay evidence, unless it qualifies for a hearsay exception, because it is considered to not be reliable evidence. However, hearsay evidence or testimony can be valuable evidence for judges or juries when deciding a case. In some situations, the only way a person can get a certain fact in front of the judge might be with evidence that is technically hearsay. Therefore, the rules that cover trials (“rules of evidence”) contain exceptions for evidence that might otherwise be considered hearsay when there is something about it that makes it more reliable than typical hearsay evidence. You can look to your state’s rules of evidence for a complete list of exceptions. The following are the most common hearsay exceptions that you might encounter:
Admission by the other party (known as “admission by a party-opponent” or “admission against interest”): Statements made by the other party that can be used against him/her will often qualify under this hearsay exception. When the other party says something out of court way before anyone knew that there would be a lawsuit, it’s considered likely that the party was telling the truth at that time. This is why it is possible that it may be admitted as an admission by the other party, even if the statement is technically hearsay. For example, if the other party once admitted to his friend, “Whenever I am watching my daughter, I lock her in her room so that I can have my friends over to party without her bothering me,” the friend could testify to this on the witness stand in your custody hearing.
This exception could also include documents that you want to introduce as evidence that might otherwise be considered hearsay, like letters, text messages, Facebook posts, etc. that were written by the other party.
Excited utterance: An excited utterance is a statement that a person makes immediately after a startling event. Statements made out of excitement are considered to be more reliable because a person is not thinking as much about what s/he is saying. The classic example is a recorded 911 call, which is made immediately after a traumatic incidence. Even if the person who made the call is not testifying, the recording of the phone call can be admitted as evidence under this exception.
Prior inconsistent statement: If a witness or a party says something while testifying that differs from a statement s/he made previously, the prior statement may be admissible under this exception. This most often occurs when there have been depositions, and a witness makes a statement during the trial that is not consistent with his/her testimony in the deposition. This is an important exception that is often used during cross-examination. If you hear a witness testify differently than what you remember him/her saying at depositions, you can question the witness about it. If s/he is not willing to admit to the prior statement that s/he made, you can read the witness’s prior statement from the deposition transcript into the court record while s/he is testifying to say, “Isn’t it true that today you said X, but in the deposition that you gave on [date], you said Y.”
Statement for purposes of medical diagnosis or treatment: A statement that you make to a doctor or another healthcare professional about symptoms you are experiencing may qualify for a hearsay exception. For example, if you are riding to the hospital in an ambulance because your leg is broken, and you tell the EMT that your partner ran over your leg with the car, the EMT could testify about what you told him/her.
Statement against interest (also called a “declaration against interest”): If a person who is not a party to the case made a statement that is against his/her legal or financial interest, then it might qualify for a hearsay exception. However, in order to use this exception, the person who made this out-of-court statement must be “unavailable” to testify at the trial for reasons such as refusing to follow a subpoena to testify, serious illness, or death.
Business record: Records that are kept by a business, government, or other organization in the regular course of business may qualify for a hearsay exception. This might be hospital records, inventory statements, rent balance sheets, utility bills, report cards, or other documents. To qualify for this exception, you might have to get certified records from the business or organization that generated the records instead of just using a copy that you have on hand or that you print out. Or, you might have to call someone from that organization as a witness to testify as to their business practices with regard to keeping records before the judge will allow you to enter the records into evidence.
Public record: Records that are kept in the public domain might also qualify for a hearsay exception. This can include birth records, marriage certificates, or sometimes, police records and other documents that are kept in an official capacity.