# Court objections: lawyers please



## wainscottbl (Oct 8, 2015)

So, there is a murder trial as part of my novel--not the main plot though. I have watched the opening statements of the Zimmerman trial to get and idea of that, and looked over the transcript of the OJ Simpson trial. I have looked up the official objections in an American court of law. Here is the dialogue:




> “Thank you, Your Honor. Yes, my expert witness will testify to that. Blake Ciar will testify too, and you may judge for yourself based on what Special Agent Star says of the nature of a sociopath.“
> 
> “Objection,” said the prosecutor again.  “Counsel is asking the jury to prejudge evidence. Since Blake Ciar is not on trial here, but is merely a witness, this really is not appropriate for Counsel to say during his opening statement. This is twice he has tried to prejudice the jury. I understand that Counsel is using Blake Ciar to present an alternative theory in this case—that is his job—but Mr. Desmond should simply do that with evidence presented at trial.”
> 
> “Sustained. I’ve not have three objections during opening statements in a long time,” Judge Maddox said.“You know better, Thomas Desmond. You were my top student when you were law school. Ladies and gentlemen of the jury, as I said before, consider the evidence that will be presented in the actual case.”




Is this "asking the jury to prejudge evidence"? I know that the opening statement is not evidence. Wiki says regarding the opening statement:



> Opening statements are, in theory, not allowed to be argumentative, or suggest the inferences that fact-finders should draw from the evidence they will hear. *In actual practice, the line between statement and argument is often unclear and many attorneys will infuse at least a little argumentation into their opening (often prefacing borderline arguments with some variation on the phrase, "As we will show you...").*Objections, though permissible during opening statements, are very unusual, and by professional courtesy are usually reserved only for egregious conduct.



For example at the beginning, the defense attorney says:



> “Yes, Your Honor,” Mr. Desmond said. He stood and buttoned his jacket. “Mr. Harper has already refuted my defense. Or he has tried. What am I to say? He already said what I am going to say. But I’ll still say it. First, you know you have to judge my client on the facts of this case and this case alone, not his molestation charges. I know that is an awful offense, but the law says you cannot judge him on that, and you have been instructed on how this all works."




Would this be allowed? 

Further, as the defense outlines their case, can they tell what certain witnesses, namely expert witnesses, will discuss?


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## InstituteMan (Oct 8, 2015)

I have many thoughts that may or may not be helpful.

1. Evidence is a hard subject. Most attorneys won't remember many details on the topic after they've passed the bar exam unless they are trial attorneys.

2. Even among trial attorneys, different states have slightly different Rules of Evidence, so there isn't a single answer.

3. I'm pretty sure the examples you give above are incorrect, but Law & Order has worse examples. It seems to have done okay.

4. Unless the objections are a critical plot point, I wouldn't sweat them.


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## wainscottbl (Oct 8, 2015)

InstituteMan said:


> I have many thoughts that may or may not be helpful.
> 
> 1. Evidence is a hard subject. Most attorneys won't remember many details on the topic after they've passed the bar exam unless they are trial attorneys.
> 
> ...



Are you an attorney may I ask?


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## shadowwalker (Oct 9, 2015)

Contact a lawyer, law professor, DA - explain what you're doing and ask politely if they could explain XYZ to you. You've done some homework already, so you can ask intelligent questions, which is a plus. If your story takes place in a specific location, contact folks in that area.

ETA: Make sure you talk to a _trial _lawyer or professor, as there are lawyers who never see the inside of a courtroom.


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## InstituteMan (Oct 9, 2015)

wainscottbl said:


> Are you an attorney may I ask?



Yep, and I promptly forgot 90% of my evidence course after passing the bar. The Rules of Evidence are sufficiently specific and (at times to a non-trial attorney) arbitrary that unless you apply them regularly you will not be able to remember them. They are also sometimes pretty ambiguous in application to edge cases.

Certain substantive areas have reasonably bright lines that can be understood without going to law school and then practicing in the field. Those areas can make for entertaining stories, because the argument is over what side of the reasonably bright line something falls. You know, if you kill someone, it's definitely homicide, but if you did it with premeditation it will be murder in the first degree (typically) while if you acted reasonably in self-defense it isn't even a crime. The substantive argument over those kinds of issues are things that most people can at least relate to, even if they don't appreciate the history and how the law is interpreted and applied.

The issue with objections is a procedural issue, not a substantive issue. Procedural issues don't make for great drama (aside: court rooms don't make for great drama, either. I've had to do that enough for pro bono cases and such to realize how boring court actually is) .That means it will be harder for a typical reader to relate to--I mean, how many people know what "hearsay" actually is and why it is generally excluded from evidence, much less (and this is where you get deep into the weeds) what the exceptions to the rule excluding hearsay are? Throw in the fact that every state has it's own Rules of Evidence and that every judge applies them a little differently, and it's hard to give accurate advice about what would happen in a hypothetical state with a hypothetical judge. 

One other thing about objections in the court room: remember that those happen in real time. Google "rules of evidence" and read the Model Rules or whatever else come up--there's a lot of provisions. Even the best attorneys don't make perfect objections based on the Rules, because they are too complex. Even the best judges make mistakes in applying them. There's a doctrine that on appeal not all errors at trial are grounds for a reversal precisely because a "perfect" trial isn't possible. If the standard for a trial court is the perfect application of the jurisdictions Rules of Evidence, no verdict would ever be upheld.


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## wainscottbl (Oct 10, 2015)

shadowwalker said:


> Contact a lawyer, law professor, DA - explain what you're doing and ask politely if they could explain XYZ to you. You've done some homework already, so you can ask intelligent questions, which is a plus. If your story takes place in a specific location, contact folks in that area.
> 
> ETA: Make sure you talk to a _trial _lawyer or professor, as there are lawyers who never see the inside of a courtroom.



Yeah, I have a trial lawyer friend I used to write a blog with. He was doing a big murder case last time we spoke. He's Canadian, and the systems are slightly different, but still Common Law. I'll ask him. He's a writer too so he will not mind the questions, both as a friend and as an aspiring novelist himself. I was just not wanting to ask him right away, but guess I will. Last time I emailed him he was in the middle of a murder trial so his responses were slow. He sent me a link or two about his case. Guy's girlfriend got murdered, but all the evidence was circumstantial. I never asked how it turned out. There was no DNA or anything he said. Also, he said he worked first as a Crown Attorney (Canadian version of a DA) and used to like that until he did defense. He says he likes the latter because of this idea that it is better than 1000 guilty men go free than one innocent one. But he also pointed out most of his cases are not huge. DUIs and stuff. That he likes helping DUI folk because most of them were not wasted, and it was a one time thing, etc. Small time stuff is nice because he like helping the everyday man with little things. I should ask him I guess. But as you said, InstituteMan, a little drama is fine. I watched some of the murder trials. They can get pretty tedious. Stories require action. And my friend likely knows the rules of evidence well based on his recent cases.


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