Common evidentiary objections in Washington, D.C.

An evidentiary objection is a formal utterance in court by one of the parties that either seeks clarification or opposes the introduction of evidence by the other party.

As such, the objection can prevent the opposing party from introducing evidence.  Whether or not the objection is successful, the mere making of the objection also preserves the issue for appellate review.

Usually made in court during testimony, the typical objection seeks an immediate ruling by the judge.  The “overruling” of the objection means that the question can be answered. 

The “sustaining” of the objection means that the question was improper and cannot be answered.  In that case, the party making the successful objection can ask the court to “strike” – that is, remove from the record – any testimony that may already have been elicited.

The objecting party is typically required to state the grounds for the objection, often outside the presence of the jury.  A “speaking objection” is the derogatory term that is used to describe an objection that contains more information (in the form of argument) than the court needs to rule and/or that appears to be intended to improperly influence the jury. 

 A “continuing” or “standing objection” is a single objection to an entire line of questioning.  It preserves the issue for appellate review while avoiding the need to object on a question-by-question basis. 

Below is a list of common evidentiary objections that are used in Washington, D.C.  The listed in divided in two.  First, there are objections to the form of the question.  Second, there are objections to questions and/or responses based on content.

It is important to note that, unlike most other jurisdictions, D.C. does not follow the numbering system of the Federal Rules of Evidence (FRE).  Instead, the rules of evidence are sprinkled throughout the D.C. Code with further clarification in District case law. 

FORM OF THE QUESTION

Ambiguous

A question cannot be unclear or subject to multiple interpretations.  The question “why did he go there?” would be objectionable unless it is clear from the context (1) to whom does the pronoun “he” refer to, (2) what date or time is in question, and (3) where is “there”?

Argumentative

Legal argument is reserved for closing statements.  Questions should elicit facts, not seek to bolster the proponent’s case.  For example, “do you really expect the jury to believe your testimony?” would not be an appropriate question.

Asked-and-answered

A witness must not be asked the same question over-and-over. 

Assumes facts not in evidence

It is improper to ask a question that assumes facts that have not been admitted into evidence.  For example, unless it has already been established that the witness did in fact enter the house, the question “Why did you go into the house?” would be objectionable.  See Simmons v. United States, 940 A.2d 1014 (D.C. 2008). 

Bolstering

Unless a witness’ testimony has been challenged by opposing counsel, a party may not elicit or introduce “prior consistent statements” by its witness that support the witness’ statements at trial. 

The prohibition against “bolstering” is based on the theory that “mere repetition does not imply veracity.  Worthy v. United States, 100 A.3d 1095, 1997 (D.C. 2014).  In other words, just because you repeat something over and over does not make it true. 

Calls for expert opinion

The court will not allow a layperson to opine on complex scientific, technical or other areas outside the person’s expertise.  For example, unless the witness’ qualifications to opine on medical issues had already been established, the question “

Calls for narrative response

Although the “what happened next, if anything?” question is standard on direct examination to avoid leading the witness, the court will not allow the witness to drone on with an unstructured response.  Instead, the court will expect the proponent of the witness to keep the testimony on track. 

Compound question

Every question should elicit a single fact.  For example:  “Did you go into your house?”  “Did you have dinner?”  A question that sought to elicit both facts at the same time – “Did you go into your house and have dinner” – would be objectionable as a compound question. 

“Counsel is testifying”

Opening and closing arguments by counsel and questions posed by the lawyers do not constitute evidence.  In that regard, questions on direct and cross-examination are expected to elicit facts, not make argument. 

That said, it is permissible on cross-examination for a lawyer to state a fact and then ask the witness to either agree or disagree with it.  Once adopted by the witness, the facts contained in the question become a part of the evidence.

Cumulative

FRE 403 allows the court to avoid “undue delay, waste of time, or needless presentation of cumulative evidence.  FRE 611 seeks to avoid “needless consumption of time.”  See Yeager v. Greene, 502 A.2d 980 (D.C. 1985). 

Harassing the witness

The objection most commonly seen on TV is that the lawyer is “badgering” the witness.  In fact, FRE 611(a) allows the court to “protect witnesses from harassment or undue embarrassment.” 

Interrupting/not allowing answer

Once a question has been posed to the witness, the court will expect the witness to be allowed to complete the answer without interruption.  So long as the witness is actually answering the specific question that was posed, this is true even when the questioner does not like the response.   

Leading

A leading question contains the answer within the question itself.  For example:  “You are named John Smith, aren’t you?”  This is opposed to the open-ended question:  “What is your name?”

CONTENT-BASED

Authentication

A party must prove that a writing or other piece of evidence is what the proponent claims it to be before the evidence will be admitted. 

Beyond the scope of direct/cross

Cross-examination should be limited to areas raised by the opposing party on direct examination.  Similarly, redirect examination should focus on areas raised during cross-examination.

Calls for speculation

The question calls for guesswork or conjecture.  For example, a question that begins with “Isn’t it possible…?” can only lead to speculation. 

Character evidence

Except under very limited circumstances, “character evidence” is not admissible at trial.  After all, good people can do bad things and vice versa.  The question is what happened at the time period in question, not whether someone is a good or bad person. 

There are special exceptions for the accused in a criminal trial.  

Hearsay

Hearsay is defined as (1) an out-of-court assertion (2) that is offered to prove the truth of the matter asserted.  If it does not satisfy both conditions, it is not hearsay.

Hearsay can only be admitted if it falls within one of the many exceptions. 

Lack of competency

Competency to testify requires an ability to observe, remember, narrate, and understand the ability to tell the truth. 

There are certain mental or other deficiencies that might preclude a witness from testifying altogether. Such a deficiency may relate to age, intoxication, unsound mind, intellectual disability or drug addiction. 

Lack of foundation

A party must lay the proper foundation to ensure (1) that the person is competent to testify to the question at issue and/or (2) that a piece of evidence is what the witness claims it to be. 

Misstates evidence

Lawyer can summarize evidence.  They can argue it.  But they cannot misstate or misrepresent evidence in questions, opening statement or closing argument. 

Non-responsive to question

The witness is expected to answer the question that was asked, not the question he/she may have thought or wished was asked. 

“Other crimes, wrongs or bad acts”

As with “character” or “propensity” evidence, evidence that serves no purpose other than to prove that a defendant or witness is a bad person is prohibited.  See e.g., Drew v. United States, 331 F.2d 85 (D.C. Cir. 1984)(“It is a principle of long-standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged”).   

Such evidence is only admissible when the government can prove it is relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, or (5) the identity of the person charged with the commission of the crime on trial.  Id. 

Prejudice outweighs probativeness

Even relevant evidence can “be excluded if its probative value is substantially outweighed by unfair prejudice.”  FRE 403.  See also Henderson v. George Washington University, 449 F.3d 127 (D.C. Cir. 2006).   

Privileged communications

A “privileged communication” is the communication between two individuals enjoying a special relationship – for example, husband and wife, attorney and client, doctor and patient, and clergy and penitent. 

Depending on the circumstances, evidence derived from these communications can be excluded. 

Propensity evidence

Similar to “character” and “other crimes, bad acts, and wrongs” evidence, “propensity evidence” is generally an impermissible form of evidence in which a party uses “[e]vidence of a person’s character or a trait of character . . . for the purpose of proving action in conformity therewith on a particular occasion.”  FRE 404(a). 

Relevance

Only relevant evidence will be admitted.

According to Federal Rule of Evidence 401, the test for relevance is whether the evidence has “any 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.” 

In other words, McCormick on Evidence, there are two components to relevant evidence:  materiality and probative value.

“Materiality” concerns “the fit between the evidence and the case.  It looks to the relation between the propositions that the evidence is offered to prove and the issues in the case.  If the evidence is offered to prove a proposition that is not a matter in issue, the evidence is immaterial.”

“Probative value” is the “tendency of evidence to establish the proposition that it is intended to prove.” Does learning of this evidence make it more or less likely that the disputed fact is true?

Rule on completeness

The rule on completeness promotes fairness:  A party should not be able to mislead the finder of fact with evidence that is incomplete or taken out of context. 

To that end, the rule on completeness provides the opposing party with the opportunity to introduce accompanying evidence that is needed to put the statement into context.  This could include evidence – hearsay, for example – that might otherwise be inadmissible. 

See Federal Rule of Evidence 106 (“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at any time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it”).  See also Diggs v. United States, 28 A.3d 585, 597 (D.C. 2011).