Anyone who has watched a courtroom drama or live court TV has probably seen an attorney shout “objection!” while an individual is testifying. However, what is it that is being objected to? Why is this important? At Dixon & Moseley, P.C., we believe understanding objections made during trial will make you a more informed legal consumer and maximize the quality of your trial testimony. In this blog, we look at four common objections made during testimony in a divorce matter.
Hearsay. “Objection! Hearsay.” This is an objection most have heard, but one that still causes a lot of confusion, even for attorneys. Hearsay, by definition, is a statement that (1) is not being made by the declarant while testifying at the trial or hearing; and (2) is offered to prove the truth of the matter asserted.1 The first part of this rule, in plain terms, means that any out of court statement made by any person other than the person testifying is hearsay. For example, say Susan and Bob are getting divorced and have two children together. At the hearing, if Susan testified that “the children said they want to live with me and not Bob” and the children do not testify, Susan’s statement is hearsay. The point of hearsay is to keep out the “he said, she said” sort of evidence. Hearsay is tricky and it comes up a lot in divorce proceedings, be aware of the complexities and don’t be afraid to ask your attorney questions.
Relevancy. “Objection! Relevancy” is another common objection most of us have heard at some point in our lives. Relevancy is a threshold that all evidence, including testimony, must meet before it can be introduced at trial. Thus, testimony presented must be “relevant” before it can be admitted into trial. The relevancy threshold is not a hard barrier to overcome. Evidence is relevant if: (1) it has any tendency to make a fact more or less probable than it would be without the evidence; and (2) the fact is of consequence in determining the action.2 Ultimately, the relevancy question is fact-specific, and there is no blanket rule on what is and is not relevant. To demonstrate, let’s use our Susan and Bob hypothetical above. Suppose Bob testified, “Susan used to party in high school.” This testimony is most likely not relevant in a divorce proceeding. However, suppose Bob testified, “Susan has been drinking every day since high school.” This testimony is probably relevant because the trial court would consider a parent’s alcohol abuse in a divorce matter with children.
Lack of Foundation. “Objection! Lack of Foundation.” This objection may not be as commonly known, but it is important, nonetheless. A lack of foundation objection occurs during testimony when an attorney fails to provide or demonstrate a proper factual or legal basis for allowing the testimony into evidence. To demonstrate, let’s use our Susan and Bob hypothetical again. Suppose at the hearing the first question an attorney asks Susan is, “what did Bob say at dinner?” This question would most likely be objected to for lack of foundation. Why? Because it is not clear what dinner the attorney is talking about, where it occurred, the date, etc. In short, before testimony can be admitted at trial, there must be a proper foundation for the testimony.
Speculation. “Objection, Speculation!” This objection is more common than one may think, especially in divorce proceedings. A speculation objection is made during testimony when an attorney asks a witness a question they are not qualified to answer, have no personal knowledge of, or about something that the witness has not directly observed. To demonstrate, we will again use our Susan and Bob example. Suppose that an attorney asks Bob, “do you believe your children will suffer psychological damage if Susan is awarded custody?” This question will most likely be objected to for speculation because Bob is not a trained psychologist, and as such, Bob is not qualified to make such an assessment. In short, speculation is comparable to guessing, which is something the courts do not like.
The takeaway from this blog is that it is important to have, at minimum, a grasp of the complexities associated with testifying at trial. Furthermore, it illustrates the importance of retaining a competent and diligent attorney. We hope this blog provides some insight into some of the more important objections made during testimony. This blog post is written by attorneys at Dixon & Moseley, P.C. who handle family law matters of all types throughout Indiana. This blog is written as general for general educational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.