“OBJECTION,” bellowed the attorney in response to an especially devastating answer by the witness.

“Basis?” I asked.

“It’s a lie!” he snorted.

Hmmm, I’ve heard many crazy objections before, but never this one. “It’s a lie” is not a recognized objection, the last time I checked. It is argumentative, it is a speaking objection, and altogether inappropriate and extremely prejudicial.


Knowing when and how to make meritorious objections, and being prepared to meet one’s opponent’s objections, is a basic skill required of a good trial attorney. Oftentimes, a lawyer -- like the one mentioned above -- objects when he knows deep down in the dark recesses of his advocating bones that something is amiss, but the legal basis of the objection might at best only have percolated to the mid regions of the tongue. Hence he is forced to make a speaking objection, which most judges frown upon. [2] The ability to cogently object at the appropriate time is one of the challenges all trial lawyers face, especially when first delving into the trial arena. When should I object? Am I objecting too often? And when I do object and give the basis, and the judge says, “On that basis, overruled,” do I keep on guessing?

When I first started trying cases, I came across a list of common objections that I put in trial notebook, and I found it to be quite helpful to me early on. In this spirit, I write this article setting forth some of the more common objections, their legal premise, and some common mistakes made by lawyers either in making the objections or in responding to them. I separate the objections in each article as Substantive Objections and Form Objections. These articles are not intended as an evidentiary treatise, but rather an overview that is aimed to assist the novice trial lawyer, or to refresh the memory of those who may be delving back into trial work after a hiatus.

The need to properly object to objectionable evidence is paramount to protecting the record, as a failure to object contemporaneously with the objected-to evidence amounts to waiver. [3] Courts reason that without an objection, neither the trial court nor opposing counsel is provided the opportunity to correct the alleged error. [4] For example, if the objection is “foundation,” fairness requires that the proponent of the evidence be given the opportunity to lay the proper foundation.

One also cannot preserve the record simply by uttering the words “Objection.” Unless the basis of the objection is obvious from the record, a general objection is considered only as a relevance objection. [5] So it is important that the attorney specifically set forth the basis of the objection. Moreover, one cannot give one basis for an objection at trial, then urge another on appeal.[6]

If the record is not sufficient to preserve an objection, the objecting party must make an offer of proof to preserve the record. This is usually done by either the attorney representing to the court the gist of what the testimony would have been had it been allowed, or through actually posing questions to the witness under oath concerning the excluded testimony outside the presence of the jury. The purpose of an offer of proof is to provide the trial judge and opposing counsel the nature of the offered evidence, enabling them to take appropriate action, and to provide the reviewing court with a record to determine whether exclusion of the evidence was erroneous and harmful.[7] It is error for the Court not to allow counsel to make an offer of proof. In People v. Eckert[8] for example, the defense was quite persistent in trying to convince the trial judge to allow him to make an offer of proof. The requests apparently fell on deaf ears, as the trial judge replied: “Turned off my hearing aid, can't hear a word you are saying.”[9] For any trial judges reading this, do not try this at home!

Remember always that if the argument regarding the objection requires a detailed analysis, with case law and offers of proof, it is incumbent upon the practitioner to present the issue prior to trial in a motion in limine. This enables both sides to fully argue the issue, and arms the judge with sufficient time and information to get to the right result.

And one final general practice tip on objections. When preparing your case and anticipating objections, it is good practice to think about the exact purpose for which you are offering evidence. This exercise helps the practitioner focus on a theory of admitting the evidence based upon the rules of evidence, and in turn focuses the judge on the relevant analysis.

The next article will deal with Substantive Objections



This one is easy, right? Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”[10] Relevance is determined by looking at the factual issues raised in the pleadings.[11] One common misunderstanding -- especially in criminal cases -- is that some folks believe that relevance means that the each individual piece of evidence must be conclusive as to a particular issue. That is not the case. Relevance, remember, is a threshold issue. The Illinois Supreme Court had this to say about that:

Each individual item of evidence does not have to prove the fact at issue beyond a reasonable doubt. Rather, each individual item of evidence must tend to show that the fact at issue … is more or less likely. By way of analogy, it is often said that “‘a brick is not a wall.’” That is, an individual item of evidence is merely a brick, one of many bricks used to build the wall that is the fact at issue.[12]

Or, as summarized by McCormick on Evidence:

Whether the entire body of one party’s evidence is sufficient to go to the jury is one question. Whether a particular item of evidence is relevant to the case is quite another. It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence. [13]

Relevance is not the end of the analysis, of course. Otherwise admissible evidence can always be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.[14] Which takes us to our next objection….


“Ouch, that hurts,” is not a recognized legal objection in Illinois,[15] as much as we would like it to be when decidedly bad moments pop up during the course of a trial. One properly objects by arguing that pursuant to Ill. R. Evid. 403, the evidence should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice… .”[16] This, in my experience, has been underused by practitioners and often is the last basis one has for excluding otherwise admissible evidence.

Under the rule, the more probative the evidence is, the more difficult it is for the opponent of the evidence to get it excluded; the less probative, the easier it is to exclude the evidence. The operative word in the rule is “unfair.” Unfair in this context means ‘‘an undue tendency to suggest decision on an improper basis, commonly an emotional one, such as sympathy, hatred, contempt, or horror.”[17] This argument is common in criminal cases when criminal defense attorneys try to keep out the defendant’s prior conviction(s). The state invariably argues that that the conviction in question is probative for truthfulness, whereas the defense argues that the evidence is unfairly prejudicial because the jury will consider the evidence for the improper purpose of propensity.

The person who is defending a Rule 403 challenge will help her cause by offering a limiting instruction, whereby the court will instruct the jury to only consider the evidence for the proper purpose for which it is offered, and that the jury cannot consider it for any other purpose. For example, if gang affiliation is offered to show motive, it is error for a court not to allow the defense a limiting instruction that the evidence is only to be considered as to the defendant’s possible motive, and for no other purpose (i.e. “He’s a bad dude.”)[18] The Illinois Pattern Jury Instructions provide limiting instructions for both criminal[19] and civil cases.[20] It is always best practice to ask the judge to provide the limiting instruction at the time the evidence is offered, as opposed to waiting until the final instructions.[21]


Hearsay, we know, is an out of court statement offered for the truth of the matter asserted.[22] That’s easy enough, right? A common misunderstanding among lawyers is that an out of court statement is not hearsay if the declarant is on the stand. Whether the declarant is on the stand is irrelevant to the hearsay analysis.[23] If the witness is testifying to a conversation he had out of court, it must either fall within one of the hearsay exceptions or be offered for a non-hearsay purpose.

We all know that a statement is not hearsay if offered for a purpose other than the truth of the assertion. A statement offered for the effect on the listener is one of the most common examples of this. A subtlety that is missed by some practitioners is that not all statements contain an assertion of fact, and thus not all statements are hearsay. A statement without an assertion of fact is not hearsay. Statements like “Go jump in a lake,” or “Where am I?” contain no assertion of fact and, thus, are not hearsay. Greetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions of joy, annoyance[s], or other emotions are not assertions and thus not hearsay. [24]

There are obviously numerous exceptions to the hearsay rule,[25] and a trial attorney must be ready with an argument as to why the statement offered is not hearsay, or why it meets one of the exceptions. If one is seeking to admit a hearsay statement based on one of the numerous exceptions, a proper foundation must be laid to meet that exception. The foundation can be found in the language of the rule itself. That is why it is imperative that the trial attorney have a copy of the Illinois Rules of Evidence readily at hand during trial.

Probably the most common hearsay exception is an admission by a party opponent.[26] Some erroneously believe that this “admission” must be a declaration against interest. Not so. The only standard for an admission by a party opponent is relevance.[27] A statement against interest is a separate hearsay exception [28] totally unrelated to an admission by a party opponent.


There are two forms of opinion, lay[29] and expert[30]. Expert opinion requires specialized knowledge that will assist the trier of fact. Experts can rely upon otherwise inadmissible evidence to form their opinion “[i]f of a type reasonably relied upon by experts” in that particular field.[31] The practitioner must ask this foundational question before she can ask the expert about the substance of materials reviewed prior to forming the opinion, as much of those materials usually consist of hearsay. Whether that otherwise inadmissible evidence can be presented to the jury as a basis for the expert’s opinion must also withstand the Rule 403 probative v. prejudicial balancing test.

Lay opinion is admissible if it is based upon personal knowledge or perception [32] and the court finds that the opinion is helpful to the jury.[33] A police officer who is not qualified as an expert could not testify as to who was at fault in a crash because it would not be based on personal knowledge or perception. If the officer did see the crash, however, the court would still likely not allow his opinion as to fault, because the jury could make that fault determination on its own based upon a factual description of the crash. Thus, it would not be helpful to the jury. We allow lay opinion based upon the recognition that oftentimes lay people cannot adequately describe events absent interjecting lay opinions. [34] To ask a lay person to factually describe the facial features and actions of someone who is angry, for example, might be too much to ask. But the witness can easily provide a lay opinion that the person was angry. The Illinois Supreme Court provided a very helpful summary of lay opinion as follows:

Lay witnesses may relate their opinions or conclusions on what they observed because it is sometimes difficult to describe a person’s mental or physical condition, character, or reputation, or the emotions manifest by his or her acts; or things that occur and can be observed, including speed, appearance, odor, flavor, and temperature.” [35]


In P.R.S. Int'l, Inc. v. Shred Pax Corp.,[36] the Illinois Supreme Court provided a helpful example of the difference between a request for the admission of a fact and a request for the admission of a legal conclusion, which is helpful in attempting to discern a legal conclusion from other evidence. Describing a contractual scenario, the court stated: “[A] party's conduct pursuant to a contract, including what actions that party did or did not take, would be a factual question…. However, whether that conduct amounts to a material breach is a legal [conclusion].”[37] Similarly, a question asking if the failure to stop at a red light caused injuries resulting from the crash is factual, [38] whereas a question asking if the failure to stop at a red light was negligent is a legal conclusion. Even if the question asks an ultimate fact, such that it would require the fact finder to conclude that a party either breached a contract or was negligent, it is still a factual question and does not seek a legal conclusion.[39]

An issue may arise if the actual description of what occurred could be construed as a legal conclusion. Take for example, the situation where an officer testifies that the defendant “resisted” his efforts to execute the arrest. At first blush, it sounds like a legal conclusion. But when the term is used in a “common, descriptive manner,” it is not a legal conclusion.[40]