Thursday, February 6, 2014

Proper Objections in Court & Elements of a Cause of Action

These tools come from an incredible resource, I highly encourage you to look into the site and the tools available for multiple situations in regards to Law. This is not legal advice, you must empower yourself.
Proper Objections in Court -

This is a list of objections in American law:
Remove the presumptions -
Proper reasons for objecting to a question asked of a witness include:

Ambiguous, confusing, misleading, vague, unintelligible
: the question is not clear and precise enough for the witness to properly answer
Arguing the law: counsel is instructing the jury on the law.
Argumentative: the question makes an argument rather than asking a question.
Asked and answered: when the same attorney continues to ask the same question and they have already received an answer. Usually seen after direct, but not always.
Asks the jury to prejudge the evidence: the jury cannot promise to vote a certain way, even if certain facts are proved.
Asking a question which is not related to an intelligent exercise of a peremptory challenge or challenge for cause: if opposing counsel asks such a question during voir dire (i.e. the jury selection process.)
Assumes facts not in evidence: the question assumes something as true for which no evidence has been shown.
Badgering: counsel is antagonizing the witness in order to provoke a response, either by asking questions without giving the witness an opportunity to answer or by openly mocking the witness.
Best evidence rule: requires that the original source of evidence is required, if available; for example, rather than asking a witness about the contents of a document, the actual document should be entered into evidence. Generally, a non-expert witness is not allowed to describe what is in a document without the document itself being introduced into evidence. Full original document should be introduced into evidence instead of a copy, but judges often allow copies if there is no dispute about authenticity. Also, some documents are exempt by hearsay rules of evidence.
Beyond the scope: A question asked during cross-examination has to be within the scope of direct, and so on.
Calls for a conclusion: the question asks for an opinion rather than facts.
Calls for speculation: the question asks the witness to guess the answer rather than to rely on known facts.
Compound question: multiple questions asked together.
Hearsay: the witness does not know the answer personally but heard it from another. However, there are several exceptions to the rule against hearsay in most legal systems.
Incompetent: the witness is not qualified to answer the question.
Inflammatory: the question is intended to cause prejudice.
Leading question (Direct examination only): the question suggests the answer to the witness. Leading questions are permitted if the attorney conducting the examination has received permission to treat the witness as a hostile witness. Leading questions are also permitted on cross-examination, as witnesses called by the opposing party are presumed hostile.
Narrative: the question asks the witness to relate a story rather than state specific facts.
Privilege: the witness may be protected by law from answering the question.
Irrelevant or immaterial: the question is not about the issues in the trial.
Misstates evidence / misquotes witness / improper characterization of evidence: this objection often overruled, but can be used to signal a problem to witness, judge and jury.
Counsel is testifying: this objection some time used when counsel is “leading” or “argumentative” or “assumes facts not in evidence.”
Proper reasons for objecting to material evidence include:
Lack of foundation: the evidence lacks testimony as to its authenticity or source.
Fruit of the poisonous tree: the evidence was obtained illegally, or the investigative methods leading to its discovery were illegal.
Incomplete: opposing party only introducing part of the writing (conversation/act/declaration), taken out of context. Under the evidence rule providing for completeness, other party can move to introduce additional parts.[4] If any documents presented for the review, the judge and other party entitled to a complete copy, not a partial copy, of the document. When a witness is presented with a surprise document, he should be able to take time to study it, before he can answer any questions.
Best evidence rule or hearsay evidence: requires that the original source of evidence is required, if available. However, some documents are self-authenticating under Rule 902, such as (1) domestic public documents under seal, (2) domestic public documents not under seal, but bearing a signature of a public officer, (3) foreign public documents, (4) certified copies of public records, (5) official publications, (6) newspapers and periodicals, (7) trade inscriptions and the like, (8) acknowledged documents (i.e. by a notary public), (9) commercial paper and related documents, (10) presumptions under Acts of Congress, (11) certified domestic records of regularly conducted activity, (12) certified foreign records of regularly conducted activity.[2]
Proper reasons for objecting to a witness’s answer include:
Narrative: the witness is relating a story in response to a question that does not call for one.
Non-responsive: the witness’s response constitutes an answer to a question other than the one that was asked, or no answer at all
Nothing pending: the witness continues to speak on matters irrelevant to the question.
Example: “Did your mother call?” “Yeah. She called at 3:00.” Opposing counsel can object to the latter part of this statement, since it answers a question that was not asked. With some concern for annoying the court, counsel will selectively use this to prevent a witness from getting into self-serving answers.

Elements of a Cause of Action -

Q:How many elements there actually are in a cause of action and what are they?

For starters, there’s not just one “cause of action.” There’s a different cause of action for anything that a person can be sued for. If you want to sue a person for fraud, there will be a different cause of action than if you want to sue someone for trespassing.

As for the number of elements in a valid cause of action… There is no right answer. That’s why Marc likes to ask this question. The Plaintiff/Prosecutor needs to prove that certain elements have been satisfied to succeed, but there is no set way to divide up the elements.

For example, Burglary is generally defined as the breaking and entering of a dwelling at night to commit a felony within.

We could say Burglary has three elements:

1. Breaking and Entering at Night
2. of a Dwelling
3. To commit a felony within
1. Breaking and Entering
2. of a Dwelling
3. at night
4. to commit a felony within
1. Breaking and entering
2. of a Dwelling
3. at night
4. to commit a felony
5. within the Dwelling

We could also say Burglary has four elements

We could go even further and say Burglary has five elements

There’s no clear answer, and the way we divide up the elements will likely depend on what will be most difficult to prove at trial. For example, if the breaking and entering occurred at midnight, we would probably just lump Breaking and Entering together with At Night to create one element, because it will be simple to prove that the crime occurred at night. However, if the breaking and entering happened at 7:30pm, now it might not be as clear that the crime happened at night, and so we might prefer to separate the Night time requirement to make its own element, because even if we could prove that there was a breaking and entering, we would still have to prove that it occurred at night before we could prove a Burglary was committed.

In the end I find the whole exercise of asking the police officer how many elements are in a cause of action to be a futile endeavor. Police generally have the authority to make an arrest with only the belief that a crime has been committed. Whether or not that belief is right or wrong is up to the prosecution to decide. Once the matter is being prosecuted, the officer is only acting as a witness to relay the events that occurred so that the prosecution may use that information to prove the elements of the cause of action. Whether or not the officer knows the elements is irrelevant by that point. The person you should be asking is the prosecutor, not the police officer.

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