Reconciling Apparent Inconsistencies in the Rules of Evidence
The purpose of this article is to help attorneys recognize and deal with commonly-used meritless and obstructive behavior made under the guise of objections and to be able to anticipate similar objections and successfully deal with them in trial. Making a compelling evidentiary presentation is the responsibility of every trial lawyer. To do so, the trial lawyer must be more than “familiar” with the Rules of Evidence; she must eat, drink, sleep and breathe the Rules. When preparing to offer evidence, a trial lawyer must not only think through the foundational requirements for admission, but also anticipate and prepare to address objections.
Concerning the Rules of Evidence, the Oklahoma legislature said, “This Code shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” Okla. Stat. tit. 12 § 2102. Unfortunately, “clever,” obstructive attorneys have virtually unlimited crafty ways to distract judges from that stated purpose of the Evidence Code and frustrate the objectives of a legitimate presentation. Rather than acknowledge the purpose and spirit of the Rules, obstructive attorneys take inconsistent positions throughout trial, as if the Rules of Evidence may be used to prevent any attorney from asking any question and prevent any witness from ever testifying or authenticating any exhibit or reading from any document. The author encounters these obstructive “objections” regularly, ranging from an objection of “assumes facts not in evidence,” during an opening statement to a recurring objection from a veteran attorney which was simply: “I don’t think he can do that.”
This article is about absurd and extreme behavior that is purportedly based on the Rules of Evidence. A classic example comes from direct examination. The examining attorney asks a perfectly open-ended question, such as, “What did you see?” or “Why were you there?” The opposing attorney objects to the question with “Objection: Calls for a narrative.” Any change to the question to refine it for the witness (and really for the satisfaction of the opposing attorney) is then met with “Objection: Counsel is leading the witness.” The obstructive opposing attorney wishes to create the no-win situation where every open-ended question on direct is too broad, and any change to narrow the question is impermissibly suggesting the answer to the witness. Even when the objections are overruled by the trial judge, the objections are designed and intended to distract the fact-finder, the questioning attorney and the witness and destroy the story-telling impact of direct examination.
Okla. Stat. tit. 12 § 2611(D) permits the use of leading questions on cross-examination. It also provides, “When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, leading questions may be used on direct examination.” This is the rule in all 50 states and in all federal courts. In 1992, the Oklahoma Supreme Court said concerning that part of 2611(D),
The intent of the statute is that litigants are entitled to call the opposing party as a witness in the former's case in chief. Inherently, that witness will be adverse to the case the litigant is trying to prove. Thus, the litigant is entitled to use leading questions to elicit the testimony from the witness.
Three M Investments, Inc. v. Ahrend Co., 1992 OK 33, ¶ 21, 827 P.2d 1324 (emphasis added).
The use of leading questions is a powerful way to authenticate evidence through adverse witnesses. We are given a shortcut to prove the contents of writings, recordings and photographs through adverse witnesses: “Contents of a record may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission without accounting for the nonproduction of the original.” Okla. Stat. tit. 12 § 3007. Unfortunately, however, despite the clear statutory language of Okla. Stat. tit. 12 § 2611 and the Oklahoma Supreme Court’s discussion and holding in Three M, supra, many attorneys and some judges are not familiar with the application of the use of leading questions in trial, especially for evidentiary authentication. Virtually all attorneys, even those who recognize the legitimacy of the tactic in action, are very uncomfortable sitting through a skilled cross-examination of their client.
The discomfort from sitting through a skilled cross-examination of a client results in bad behavior from attorneys who do not know what to do or who are obstructive and willing to break the rules. When an attorney is questioning the opposing party or an adverse witness, the attorney may use leading questions to authenticate evidence through the witness. A common obstructive objection is to claim that the examining attorney is “publishing from a document that has not yet been admitted” when any leading questions are asked about attributes of the exhibit. Then, once the exhibit is authenticated and admitted, the obstructing attorney will object to further questions about the exhibit by claiming that “it speaks for itself,” and that the examining attorney is “beating a dead horse.” Overall, the obstructing attorney takes the position that the examining attorney should not ask any questions concerning any attributes of an exhibit that has not already been admitted, then, as more foundation is laid, the obstructing attorney suggests that the foundational questions are unnecessary and repetitive and that the hostile witness is not a proper sponsor of a document that the witness authored. Once the exhibit is admitted, the disingenuous obstructing attorney then takes the position that no other questions may be posed concerning the exhibit, as everything about the exhibit, which should have never been admitted in the first place, is self-evident, so further questions about it are cumulative. The argument of the obstructive attorney, then, is that the examining attorney had no place whatsoever to ask any questions of any kind of this or any other witness, as the Rules of Evidence completely bar any questions and evidence of any kind, and the examining attorney should be admonished and her case dismissed.
How can this be? How is it that these objections not only exist, but are frequently used and are sometimes successful? The responsibility lies with all lawyers, including judges. “The document speaks for itself” is a perversion of an objection to cumulative evidence, which is a righteous objection to a belabored point. “Publishing from an unadmitted exhibit” and “assumes facts not in evidence” are the results of too many poor, unplanned, lazy or even nonexistent foundations. The assessment the judge has to make is, “Who can I trust in this situation?” Can the judge trust you to lay a proper foundation and move along without wasting time? Do you keep your promises to the judge? For example, do you tell the judge “I have one more question for this witness,” then ask five more questions? Have you properly assessed your case? If the judge asks you how much longer your case will take, do you answer, “A bit?” Do you say you can finish with your case before lunch, then take the rest of the day? Do you attempt to offer exhibits through witnesses who you know cannot authenticate the exhibits? Do you call witnesses who have no material knowledge to offer, or do you ask witnesses to offer opinions they are not qualified to render? These little lies are too common and cause us to lose credibility and trust, and the cost is too great.
Following are some frequently-used improper objections with discussion and authority to help deal with them in trial:
Objection: The document speaks for itself. This is a common objection to a request for admission, in writing or during examination, that a document says something. This objection has no merit and is per se bad faith and frivolous, as it has no basis whatsoever in the Rules of Evidence or any other law. A federal court addressed this objection as follows:
It is astonishing that the objection that a document speaks for itself, repeated every day in courtrooms across America, has no support whatsoever in the law of evidence. James W. McElhaney, The Cleveland Exception to the Hearsay Rule and Other Courtroom Oddities, 1 Rev. of Litig. 93, 96-99 (1980). If, for example, a document has been admitted into evidence and a witness is asked to read from it, that the same information can be secured from the fact finder reading the document is certainly not grounds for objection to the witness reading from it. Id. There is no difference whatsoever between the jury reading it for itself or the witness reading it to them.
Alternatively, if the document has been admitted into evidence and the witness is asked to paraphrase it and does so inaccurately, objection would lie on the grounds of relevance. A mischaracterization of the contents of a document is an irrelevant waste of time, unless there is some significance to that mischaracterization in itself, i.e., the witness's misunderstanding of what the document says has independent evidentiary significance because it is probative on some issue in the trial. In any of these instances, however, invoking the tautology that "the document speaks for itself" has nothing to do with the actual objections that should be made. . . . The tautological "objection" that the finder of fact can read the document for itself to see if the quote is accurate is not a legitimate objection but an evasion of the responsibility to either admit or deny a request for admission, unless a legitimate objection can be made or the responding party explains in detail why it can neither admit or deny the request. Fed.R.Civ.P. 36. See Sigmund v. Starwood Urban Retail VI, LLC, 236 F.R.D. 43, 46 (D.D.C. 2006). It is also a waste of time, since the "objection" that the document speaks for itself does not move the ball an inch down the field and defeats the narrowing of issues in dispute that is the purpose of the rule permitting requests for admission.
If, on the other hand, the request for admission paraphrases a document, the request should be admitted if the paraphrase is accurate and denied if it is not. Again, stating the obvious — one can read the document oneself to see if the paraphrase is accurate — is not a legitimate objection and an equally great waste of time.
Thus, the defendant's objection to the requests on the grounds that the document speaks for itself is a meritless objection and will be overruled.
Miller v. Holzmann, 240 F.R.D. 1, 4-6, 66 Fed. R. Serv. 3d 977 (D.C. Cir. 2006).
In 2018, the State of Arizona modified its Rules of Civil Procedure and included, “(2) Denials--Responding to the Substance. A denial must fairly respond to the substance of the allegation. A denial does not fairly respond to the substance of an allegation if it: (A) answers an allegation by stating that “the document speaks for itself”;” An objection or response that a document “speaks for itself,” should be understood and received as an express admission as to the authenticity and content of the document, without any limit to use of the document by its proponent.
Objection: The question assumes facts not in evidence. This objection can be legitimate during direct examination, as it is closely akin to an objection for lack of proper foundation. The situation that an obstructive adversary desires to create and foster during his opponent’s direct examination goes something like this: he will not concede any basic facts at all, demanding a tedious foundation of background and context, yet he will object to each foundational question as irrelevant, remote, and having nothing to do with the specific allegations of this case. Okla. Stat. tit. 12 § 2611(D) includes, “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony,” so, naturally, this attorney will object to every leading foundational question. Then, as the testimony on direct develops, the attorney will ignore any common sense inferences or buildup from the foundation and object to “assumes facts not in evidence” for every question that is not directly grounded in the setup. The attorney will object to open-ended questions such as, “What happened next?” or “What did you see?” with “Objection: the question calls for a narrative and should be stricken.” The attorney will object to any questions about emotion, feeling, reactions or thought as “Irrelevant,” or even “Calls for speculation.”
The objection “Assumes facts not in evidence” has virtually no place during cross-examination, as each leading question in a well-crafted cross-examination will confront the witness with a factual question which has not yet been posed and thus is not “in evidence” until admitted by the witness. The insurance for cross-examination is the rule that a trial lawyer may not ethically ask a question without a factual basis for the question. A trial lawyer shall not “. . . allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence . . .” Rule 3.4(e) of Oklahoma Rules of Professional Conduct.
Objection: This witness didn’t take the photograph. There is no foundational requirement that the witness sponsoring a photograph must be the photographer. “Testimony that a photograph is a correct representation of the object sought to be shown is sufficient foundation for its admission; and this need not be given by the photographer, but may be given by any one having sufficient knowledge of the object to say that the photograph is a faithful representation thereof.” Robison v. State, 1967 OK CR 126, ¶ 7, 430 P.2d 814.
There are two ways to lay foundation for the admission of a photograph. One is for a witness who is familiar with the scene which the photograph purports to represent to testify that the photograph accurately, or correctly, portrays the scene, based on their own memory and knowledge. The other is that a proper sponsor, including the photographer, may testify that the photograph is the result of a mechanically-reliable process, including the use of equipment that was determined to be functioning normally.
Objection: Counsel is publishing from an exhibit which is not admitted. It is technically true that evidence must properly be authenticated or identified by evidence sufficient to support a finding that the matter in question is what it is claimed to be, as a condition precedent to admissibility. Okla. Stat. tit. 12 § 2901. The rule gives us “illustrative examples,” or a non-exclusive list of ways evidence may be authenticated. Three of those examples are from the statute are,
- Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation;
- Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated;
- Appearance, content, substance, internal patterns or other distinctive characteristics taken in conjunction with circumstances;
Naturally, then, for the evidence of comparison, or appearance, or content, or distinctive characteristics to be part of authentication process for the exhibit, the Evidence Code contemplates a significant examination and discussion of specific attributes and contents of the unadmitted exhibit during the foundation and authentication process.
Texas’ Court of Criminal Appeals discussed this issue at length in an opinion that garnered national attention: Tienda v. State, No. PD-0312-11, decided February 8, 2012. The defendant was convicted of murder. At trial, part of the evidence against the defendant included MySpace pages purportedly maintained by him. The State printed out images of each profile page directly from the MySpace website, and the victim’s sister was the sponsor for the profile pages. The defense attorney pitched a fit, raising all the objections set out in the fictional examples in this article and more. The appellate court’s discussion upholding the admission of the MySpace pages included lengthy analysis of the contents of the pages as sufficient circumstantial evidence for authentication, to support a finding that the exhibits were what they purported to be. In other words, the pages were authenticated during direct examination through the discussion and use of contents of the pages, prior to the admission of the pages.
Additionally, a hearsay exception provides for certain records to be read into evidence without admission of the record as an exhibit: “A record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. The record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party[.]” Okla. Stat. tit. 2803(5). With proper foundation, a document that has not been admitted may certainly be “published” through testimony.
Finally, if an adverse party witness wrote something, the witness may be asked about what he wrote, and a leading question such as, “You wrote, ‘We need to fire her before she complains?’ didn’t you?” is a proper, factual question for the witness to either confirm or deny, regardless if the attorney is asking the question without looking at the writing or actually framing the question by referring to the written statement, even if the writing has not been admitted into evidence. See Okla. Stat. tit. 12 § 3007. If the witness denies the writing, the witness may be impeached with the writing, pursuant to Okla. Stat. tit. 12 § 2607, and the attorney may choose to take the steps to authenticate the writing and offer it into evidence as a nonhearsay statement by the adverse party witness offered against that party.
Objection: Calls for a legal conclusion. This objection is raised when the matter sought to be admitted asks for the opposing party to admit the truth of a matter. The objection is made when the responding party wishes to dodge an admission that is true. In the Oklahoma Discovery Code cornering Requests for Admission, Okla. Stat. tit. 12 § 3236(A) says that, “A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request.” The Oklahoma Evidence Code at Okla. Stat. tit. 12 § 2704 says, “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” The objection “Calls for a legal conclusion” has no basis in any law.
Use of the pseudo-objections identified in this paper is unprofessional and unethical. It violates multiple aspects of Rule 3.4 of Oklahoma Rules of Professional Conduct. Yet, it is not enough to know that such objections and behavior are wrong, for such misconduct occurs every day, as a matter of routine, in courthouses all over the United States. You cannot assume that your judge will handle the problem for you. The judge may have very limited trial experience, may be skeptical of both attorneys in a high-conflict case, or worse, the judge may have been an obstructionist before taking the bench. The burden is on you, the trial lawyer with a case to make, to anticipate and think through these problems and show the trial court that your evidentiary presentation is legitimate.
Fortune favors the prepared, and so do the rules. Part G(3) of Rule 5 of Rules for District Courts of Oklahoma requires attorneys to be prepared to address at pretrial conference “the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding authenticity of documents, and advance rulings from the Court on the admissibility of evidence[.]” Have authority ready for your evidence, and do not waver. Avoid the predicate filler words, “I think” or “I don’t think,” as those phrases are a fast way to magically transform a strong legal position into a weak personal opinion.
If your opponent is successful in misleading or distracting the judge, make an offer of proof to preserve the issue for appeal, pursuant to Okla. Stat. tit. 12 § 2104. Too often, attorneys are content to make an offer of proof by simply stating what the witness will say or what the evidence would be. A stronger offer of proof may come through the witness, eliminating the possible argument that the attorney offering the evidence is exaggerating or wrong about what the witness might say or what the evidence might be.
The traditional way of making an offer of proof is the "formal" offer, in which counsel offers the proposed evidence or testimony by placing a witness on the stand, outside the jury's presence, and asking him questions to elicit with particularity what the witness would testify to if permitted to do so. People v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785, 794 (2002); M. Graham, Cleary & Graham's Handbook of Illinois Evidence §103.7, at 22 (8th ed. 2004).
In re the Marriage of: Miller v. Miller, Appellate Court of Illinois Fourth District, No. 4-05-0286.
Offers of proof in this manner, through witness testimony, have been acknowledged and endorsed by Oklahoma’s appellate courts. Allen v. Farmers Union Co-Operative Royalty Co., 1975 OK 102, ¶ 9, 538 P.2d 204 (“The trial court also permitted Flag, as an offer of proof, to introduce testimony and evidence . . .”); see Cole v. State, 1981 OK CR 118, ¶ 11, 634 P.2d 1313 (“At an in-camera hearing, the defense made an offer of proof by presenting testimony of both Deanna and Ruthie Foster.”); see also Matter of Estate of Long, 1993 OK CIV APP 186, ¶ 9, 871 P.2d 437.
Intimate knowledge of the Rules of Evidence and familiarity with the evidence of your case will help you think through most issues associated with making your case. When possible, address evidentiary issues before trial through the discovery process, motions in limine and at pretrial conference. At trial, keep your focus and composure, and make your case for the authentication and admission of your evidence through testimony, the Rules of Evidence, and case law. Trials are all about credibility, and, as you stand to make your closing argument, your case will likely look even more credible and strong as your legitimate evidence is contrasted against the myriad of unsuccessful bad faith objections.
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