Raising Legal Objections and the Role of the Judge

Source: H.H Malcolm, Ewoenam Bedzrah Esq.

INTRODUCTION

Perhaps the most attractive of all the prestige associated with becoming a lawyer is earning the right to be able to yell “objection!” in Court someday. In a trial, objections remain the most interesting part of exchanges between the opposing camps. Lawyers love it. On any given day, a good volley of objections is capable of lighting up a courtroom and,depending on his or her mood, objections are capable of bringing a wry smile on the face of the most stern of judges. However, despite the fun part, the rules on objections are rather complex and most of them are not settled. Thus, a ruling the same objection may vary depending on the circumstances. However in a trial, both civil and criminal, it is not how much evidence is at the disposal of a party that matters most but the ability to tender the said evidence in accordance with the rules of admissibility. It is not sufficient for the information to be persuasive or elegant, or even true but its ability to pass the test of admissibility. The one way of ensuring this is by the interesting tool of objections at the disposal of parties or their lawyers.

WHAT IS AN OBJECTION?

An objection is simply a request that the Court rules on the admissibility of a certain testimony or evidence.

TYPES OF OBJECTIONS

The types of objections raised in Court are largely the same in all the common law jurisdictions across the world. Only a few of them have assumed exclusive uses, having found their way into legislations. In Ghana the rules of evidence create a place for raising objections in the Evidence act, 1975, (Act 323). Section 6(1) of the Act states the law as follows “In an action, and at every stage of the action, an objection to the admissibility of evidence by a party affected by that evidence shall be made at the time the evidence if offered ”.

THE ROLE OF THE JUDGE

The role of the judge is stated in subsection 2 of the Act as follows:

“An objection to the admissibility of evidence shall be recorded and ruled upon by the Court as a matter of course”. The above subsection suggests that objections may have to be made first before the court’s role is triggered. The limitation on that is cured by section 8 of the Act which goes on to give the Court the power to suo motu exclude objectionable evidence even where it is not raised. S8 of the Act states the law as follows: “ Evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion”.

Objections abound and their legitimacy is based on all the sources of law stated in Article 11 of the Constitution, 1992. For the purposes of this article, I shall limit the authorities to two sources only, i.e. The Common Law and the Evidence Act, 1975, (Act 323) hereinafter referred to as the Act. Let me first state some of the frequently used objections at common law and those provided by the Act after which I shall proceed to discuss each of them.

Common Law Objections include objections to:

Speculative conjecture
Compound questions
Vague questions
Argumentative questions
Narratives
Asked and Answered
Assuming Facts not in Evidence

Objections Under the Evidence Act 1975, (ACT 323) include objections to:

8. Hearsay- Part 8 of Act 323

9. Relevance – Part 4 of Act 323

10. Unfair prejudice – Section 52 of Act 323

11. improper character evidence of the following nature

Conviction of a crime – Section 85 of Act323
Untruthfulness – Section 84 of Act 323
Reputation –Section 80 of Act 323

12. Lack of Personal knowledge-Section 60 of Act 323

13. Improper lay opinion Section 111 of Act 323

14. Leading questions- Section 70 of Act 323

15. Authenticity- Part 9 of Act 323

16. Lack of foundation- Section 140-161

17. Best evidence- Sections 162-169 of Act 323

18. Privilege- Part 9 of Act 323

19. Subsequent remedial measures section 56 of Act 323

20. Settlement Offers- Section 57 of Act 323

DETAILS

SPECULATIVE CONJECTURE

In a legal sense, the term conjecture refers to guesswork, meaning it is a supposition based on theory, without substantial evidence. Conjectures are often based on the way a situation appears, rather than on solid proof. An objection is likely to be lodged when a question invites a witness to answer based on conjecture, or a guess. Eg. “Do you think that is what made Mr. Nawura angry enough to kill his wife?” in this example,It is clear that the lawyer is trying to solicit speculative motive from this witness. This is objectionable. Where the examiner asks hypothetical questions like “what would have happened if…” etc. … and there is an objection, same must be sustained.

COMPOUND QUESTIONS

This is more than one question combined in what seems to be a single question asked of a witness. A compound question may be objected to by opposing counsel since it may be confusing to the witness, who is entitled to answer each question separately. Eg. Wasn’t the Plaintiff attending to a child at the back seat and talking on his phone?

VAGUE QUESTIONS

A vague question is a question that seems to be asking one thing, but which leads the witness to answer another question and as such, even though it ultimately was not unintelligible, it would still be an improper, unclear question. Thus, the objection is designed to help keep questions clear, and to avoid deceptive and manipulative tactics.

Eg Q. did say you saw my cow, traveling to Accra?, instead of Q. did you say when traveling to Accra you saw my cow? Or a lawyer for 2 accused persons in cross examining the investigator asks: Q. So you took two statements from the Accused persons? Here is the witness answers yes he may be heard as saying he took two different statements from each of them whereas the fact may have been that he took one each from them. An objection may be raised on the basis that the question is vague.

ARGUMENTATIVE QUESTION

This question usually asks of the witness to accept the examiner’s summary, inference, or conclusion rather than to agree with the existence or nonexistence of a fact. One common misconception is that argumentative questions are meant only to cause a witness to argue with the examiner. This is incorrect, because an argumentative objection may be raised only when the lawyer herself is making a legal argument under the guise of asking a question. For example, a lawyer on direct examination asks his witness, a layperson with no legal training the following question: "So what you are saying is that at the time of the incident Malcolm was driving negligently right?" Opposing counsel could raise an argumentative objection. In this context, "negligently" is a legal term of art with a precise and narrow meaning, and the witness cannot reasonably answer the question without understanding the relevant law. Since the lawyer is "arguing" his case that Malcolm was driving negligently through the witness, the objection would be sustained and the improper statements stricken from the record.

NARRATIVES

A narrative question is one that calls for the witness to proceed at some length in order to sneak in many answers that were not solicited. Eg. Tell us everything you know about the day the accident occurred. Objections can be made to both narrative questions and answers.

ASKED AND ANSWERED

Further repetition for whatever reason of an enquiry already made and responded to is objectionable.

ASSUMING FACTS NOT IN EVIDENCE

Where a statement of fact has not yet been proven, it is objectionable to predicate a question on same as it cannot be answered without conceding the unproven proposition. Eg. So Miss Laryea, what you are telling the court is that you bought a stolen phone? If she says yes then she at the same time concedes to the buying of the phone and the proposition that the phone was stolen. Here the court is likely to hear and sustain an objection if the stealing has not yet been proved.

OBJECTIONS UNDER ACT 323

HEARSAY

A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted is a hearsay statement. In other words any out of Court statement, including the witness’s own previous statement is potentially hearsay. So whenever a witness testifies, or is asked to testify about what he or someone else said in the past, that statement should be subjected to hearsay analysis. However those statements are NOT hearsay statements if they are NOT offered to prove the truth of the matter asserted. For instance in a trial to establish the negligence of the defendant, a statement like “I warned him that he was drinking too much” would be considered hearsay if offered to prove that the defendant was drunk while driving. But it would not be hearsay if offered to prove that the driver had notice of his condition but still went ahead and drove the car anyway.

Part 8 of Act 323 provides for the exceptions to the rule. Where therefore an objection is raised on the basis of hearsay, the Judge shall examine the statement either suo motu or from the arguments of counsel as to whether or not the particular hearsay statement enjoys an exception under the rules. For example, any attempt by the prosecution to tender a statement made by the accused (Caution Statement/ Charge Statement) in which the accused admits fully or partly to committing the crime shall be objected to as hearsay. The judge shall sustain an objection unless the making of the statement complies with the exceptions provided for making a confession statement under section 120 of the Act. Inversely, any objections to the tendering of a statement in which the accused denies committing the offence shall be overruled if the basis for the objection is that it did not comply with section 120 of the Act.

If therefore an exception exists for a particular hearsay statement then the judge must overrule the objection and admit the same under the rule excepting it.

RELEVANCE

Section 51 of the Act says only relevant evidence is admissible though section 52 gives the judge the discretion to exclude even relevant evidence under certain circumstances.

Evidence is relevant if it makes any fact of consequence to the case more or less probable. A piece of evidence is therefore irrelevant if it proves nothing or if it is offered to prove something which is not of any consequence to the matter at hand. Here when an objection is raised, the judge must invite an argument, which proves that the evidence is relevant or that even though it is relevant, it should be excluded on the basis of section 52 of the Act. This objection is the axis of the next point.

UNFAIR PREJUDICE

Section 52 says relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Of course all relevant evidence is bound to be prejudicial to a party in the matter. So the objection is only sustained if the testimony has little probative value but is unfairly prejudicial.

LEADING QUESTION

A question is leading if contains its own answer or the desired answer or one which puts words in the mouth of the witness. Leading questions are only allowed during cross examination and not in examination in chief unless the answer is so notoriously known or so harmless that allowing it into the evidence will be of no consequence. Eg. A counsel during the examination in chief of his own witness making an enquiry which has to prove the time an event occurred is not allowed to ask:
Q. Did you see Miss Bobi at 3pm?
A. yes at 3pm.

Here the Court shall sustain an objection on the basis that the question is leading.

IMPROPER CHARACTER EVIDENCE

(CONVICTION OF A CRIME)

The commission or even the conviction upon a previous crime is not admissible to prove the current crime charged unless the evidence is in support of or in attacking the credibility of the witness under Section 80 to 86 of the Act.

(UNTRUTHFULNESS)
(REPUTATION)

These 2 follow the same rules as stated above.

LACK OF PERSONAL KNOWLEDGE

Section 60 of the Act provides that a witness may not testify to a matter unless sufficient evidence is introduced that he has personal knowledge of the matter. Therefore, unless a witness is an Expert Witness, he must testify only from the point of his sensory perception. It is therefore objectionable for instance, for a blind person to testify to what must necessarily be seen by the eye or for a person who has not tasted a drink to testify to its sweetness, or indeed for a virgin to testify to how an ex-virgin felt during the primary deflowering.

IMPROPER LAY OPINION

This suggests that there is proper and improper lay opinion. Where the lay opinion is introduced properly, the court shall overrule an objection. Generally lay witnesses are precluded from offering opinions, conclusions and inferences, unless they are rationally based on the perception of the witness or where it is helpful to clarify issues for the witness or the Court as provided for by Section 111 of the Act.

AUTHENTICITY

Authenticity refers to adequate proof that an exhibit actually is what it purports to be. The objections are usually raised at the stage where the foundation is being laid for the tendering of it. The judge must invite the various means of proving the authenticity of the exhibit provided for under sections 137 to 161 of the Act. Eg in a case of possession of narcotics, tendering a dry weed as the proscribed substance is not enough. Its authenticity may be laid to rest by a test report from an approved laboratory report.

LACK OF FOUNDATION

Another interesting basis for objecting to the tendering of a piece of evidence is the lack of foundation. Lawyers love it. Nearly all evidence requires some sort of predicate foundation for admissibility. Here the judge must make a ruling on whether the evidence has any foundation for its introduction. The following are some of the frequent pieces of evidence that require foundation covered by section 140 to 161 of the Act:

VOICE IDENTIFICATION
TELEPHONE CONVERSATION
WRITINGS
BUSINESS RECORDS
PRIVILEGES
DYING DECLARATIONS
PHOTOGRAPHS
SCIENTIFIC TESTS
EXPERT AND LAY OPINIONS

BEST EVIDENCE

Sections 162 to 169 provide for the principle guiding the tendering of the best evidence and the exceptions thereunder. The best evidence is the original one and unless its absence could be explained, is the best foot to put forward. Under the rules stated above, duplicates are usually admissible to the same extent as the originals. These duplicates include carbons copies, photocopies, photographs, duplicate print out and any other forms of reproducing the original as provided under section 164 of the Act.

Other secondary evidence such as oral testimony as to the contents of a document is admissible only where the original has been lost or destroyed or is unavailable through a judicial process, or in the exclusive possession of the opposing party. Eg where an accused person makes a statement at the police station which statement is in the possession of the Republic. Here the accused may be allowed to testify to its contents orally.

An objection shall be sustained where there is no explanation supported by section 162 to 169, as to why the best evidence is not being tendered. But where the explanation is supported, it shall be overruled and the duplicate or secondary evidence admitted.

PRIVILEGE

Very many privileges are available to witnesses under Part 6 of the Act, who may raise this objection to prevent the tendering of a piece of evidence though it may be relevant. The judge shall examine the said privilege and decide whether or not it applies.

There are however many exceptions to each one of them and where the exceptions are applicable, the judge shall overrule the objection and allow the privilege to be pierced. Some common examples are:

Attorney-Client
Physician-Patient
Marital
Clergy-Congregant
and others as provided by statute or at Common Law.

SUBSEQUENT REMEDIAL MEASURES

Evidence of subsequent repair or other remedial measures is not admissible to prove negligence or other culpable conduct. The rational for this rule is that parties should not be discouraged from taking steps to remedy dangerous situations only because they are torn between undertaking the repair and creating a proof of their own guilt or liability. Objections to such evidence shall be sustained or overruled under sections 56(1) or 56(2) of the Act respectively.

SETTLEMENT OFFERS

Under section 57 and 105 of the Act, offers of compromise or settlement are not admissible to prove liability or guilt. Statements made during settlement negotiation, which broke down, are also not admissible.

IMPORTANCE OF OBJECTIONS

Objections in a trial, especially one whose lifespan is anticipated to be a long one and in which the issues are so complicated that it is likely to end up in the Courts of Appeal must as a matter of course and judicial integrity and honesty be preserved for the record. The appellate courts will typically not entertain issues that were not raised at the Trial Court. The admission of a piece of evidence generally cannot be reviewed unless it was subject to a motion in limine or to a timely objection made at the trial stage. Thus objections not only serve to alert the trial judge to the need for a ruling but also define the scope of evidentiary issues to be considered on appeal.

TIMING

The general rule is that the objection must be made, as soon as it is apparent that it is called for. (Section 6 SUPRA).

If it is made to interrupt an incomplete question or indeed in anticipation of a testimony that the objector suspects to be imminent, it may be overruled as premature. To be timely, it must not be made too early or too late.

There are times however where a question if allowed to complete, is likely to contain a damaging proposition or suggestion, which cannot be wholly remedied by an objection once the jury or the judge hears it. In this instance, an anticipatory objection may not be overruled as premature. For example, in an attempt to introduce inadmissible evidence of a previous conviction, a prosecutor may ask the following: Q. isn’t it true that you were convicted of the crime of defilement? A.Objection my Lord. That was when the accused was a juvenile and therefore inadmissible under the Juvenile Justice Act. Here, the jury or judge would have heard the question that is pregnant with prejudiced information and same is likely to influence their decision. However if this same question is anticipated and an objection comes before the question is fully posed, the judge must be slow to overrule.

RULING ON OBJECTIONS

In accordance with section 6 of the Act, there are two options mandatorily opened to the judge after an objection is made. He can either sustain or overrule. Sustaining the objection means the judge agrees with the objector and bars the evidence from entering upon the record. Overruling it means that the judge disagrees with the objector and allows the evidence to enter the records. In both cases, the judge must be careful to record the objection and the arguments in support, after which in accordance with best practice, allow the opponent to counter argue against the objection before making a ruling. The ruling shall also be recorded in tune with judicial integrity to preserve the record.

Where there are no lawyers or where there are lawyers but a piece of evidence in the judge’s view is an objectionable one but was not objected to, he may suo motu exclude the said otherwise objectionable evidence and record same by powers conferred on the Court under section 8 of the Act.

FINAL ADVICE TO THE JUDGE

Some lawyers have no bona fide basis for making objections. Depending on the lawyer, the number of years at the bar, the level of integrity and learning of the lawyer, he may raise all kinds of objections. Some of them raise it even though they have no basis, some raise legitimate objections though they are unable to argue them, some do not know what the objection is about, some raise them because they have seen or heard other lawyers raise them or just purely for tactical reasons at the point to either throw off the examiner or the witness. With the greatest of respects, in all of these cases, the judge must remain calm, she must not demonstrate her irritation at the objection and must be patient enough to hear the arguments and to rule at all times. The objections are not raised against the judge, especially in cases where only one party has a lawyer. Judges tend to feel like they are being challenged or tested at the making of every objection but this is not so. A judge who has mastered the procedural and legal basis for all objections is never irritated. It is therefore good practice for the judge to acquaint herself with the rules and decide according to the requirements of the law.

May I therefore restate that the amount of evidence at the disposal of a party does not matter unless the party knows which of them to tender and how to tender them without suffering too many sustainable objections. It is the same for the opponent who does not have enough in terms of evidence but is a master of how to prevent the inadmissible evidence from getting unto the record. The judge’s role in this legal labyrinth is to master the area very well and to serve as a knowledgeable referee to the blind parties and their lawyers.

Let me acknowledge the following sources of inspiration and guidance.

The Constitution 1992
The Evidence Act, 1975, (Act 323)
Trial Advocacy by Steven Lubert
The Supreme Court of Ghana (Election Petition hearing of 2013 Live on TV)
Boston Legal (TV Series)
The Firm (TV Series)
The Good Wife (TV Series)