IS THAT BECAUSE YOU SHOT YOURSELF IN THE HEAD? By Bob Smith======= The Rules Of Evidence And When They Don't Particularly Apply 
Friday, March 19, 2010, 11:25 AM
Posted by Administrator
Driving down from the Tim Horton's Donuts in Medicine Hat, I had some time to think about the time I spent in court before I retired and moved up here to Wyoming And I'm not just talking about what I was thinking for the first few miles after I handed the Custom's Agent at the border crossing a chocolate frosted. That's wasn't bribery---was it? I wasn't smuggling anything bigger than the half-eaten plum sitting in a bag in my back seat.

For example....

I am fairly familiar with the rules of evidence. I have tried enough cases for me to rely on muscle memory to jump me out of my seat and yell out the appropriate objection when the other side of the case tries to get something into evidence that I don't think the rules ought to allow in. You've watched TV so you know them too:

-Hearsay.
-Calls For A Hearsay Answer.
-Irrelevant.
-No Predicate/Improper Predicate.
-Improperly Calls For An Opinion.
-Calls For A Narrative.


These are most of them...except there is always:

-Prejudicial.

But, the other side's evidence is aupposed to be prejudicial to your side so, how about:

-Unfairly Prejducial.

Maybe, give it a try. Maybe the Judge will only let the jury in your muder case see a few grotesque murder victim pictures instead of the 3 dozen bloody, gory, mutilation photos the prosecutor would like to use to make the jury want to hang someone for the crime (and, why not your client because he is already in the courtroom). Alright, the Judge will probably let them all in. But, you tried (and preserved the issue for appeal).

But, I digress....

QUICK....I am going to give you a scenario then I want you to QUICK....tell me the appropriate legal objection (you are required...by most judges to state the correct basis of your objection along with the words "We object"....if you say "Objection, heresay" and really the proper objection is "irrevent" then the judge is supposed to overrule your objection...though it would have been sustained if you said the right words.)

SCENARIO #1:

In a divorce case where one of the issues was custody/visitation of a young girl, the Husband...representing himself...testifies that he has had all kinds of mental problems for the past few years. As a result, he says, he has been unable to hold down a job and has had psychotropic mediations prescribed for his many mental problems.

When he is done testifying, on cross examination, he is asked:
"IS THAT BECAUSE YOU SHOT YOURSELF IN THE HEAD?"

The Judge does not allow the question to be asked. QUICK...state the reason.

SCENARIO #2:

In a divorce case, where everyone agrees that the Wife had the Husband removed from the home for an alleged domestic battery and ...once she got rid of him...she then removed all of the parties' valuable possessions (most of which were acquired during or shortly after the death of the man's first wife), including a Hummer bodied golf cart. The Wife now demands her share of everything that is left. It was a very short term marriage. The woman had married her deceased best friend's husband.

A witness testifies to the Wife running off with everythind and demanding more. The witness is asked:
"SO, IS SHE A GOLD DIGGER?"

The Judge does not allow the question to be answered, QUICK....state the reason.

TO BE CONTINUED:

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