4. Bias or Prejudice

While there is no basis for making the immediate objection that a particular witness is not competent or reliable simply because the witness is biased or prejudiced, such witness may be attacked through cross‑examination, extrinsic evidence, or both in an effort to show that the bias or prejudice against a party or other witness exists. (Tenn. R. Evid. 616).

5. Impaired Capacity

If a witness has his or her capacity impaired either at the time of the occurrence at issue, or while giving testimony, evidence of such impaired capacity may be given. (Tenn. R. Evid. 617). While the Tennessee Rules of Evidence only state that evidence of such impaired capacity may be given, some courts may find that the impaired capacity is to such an extent that the personal knowledge test may not be met and, subsequently, the witness may not testify.

B. Objections During Examination of the Witnesses

1. The Decision of Whether to Object

Both the beginning and the end of this chapter deal with various types of objections. However, the decision of whether an objection should be made is critical and, more often than not, a decision that must be made instantly. In determining whether or not to object to the oral testimony of a witness, consideration must be given to the results associated with making such an objection. Such consideration should take into account the balancing of several issues. Several important issues are listed below.

a. The likelihood of the objection being sustained. One of the first considerations is whether the objection, made before a jury, will even be sustained. Except under certain circumstances, there is no advantage to being overruled on objections in front of a jury. Furthermore, such objections can easily upset a jury if the jury thinks that the objecting attorney is attempting to prevent the jury from receiving important information. This is not to mention the fact that a jury can become frustrated at an interruption of the flow of testimony. Furthermore, if an attorney consistently is overruled on his objections, having given little thought to the anticipated ruling of the court, the jury may begin to wonder about the attorney's level of skill.

b. Waiting too long to object. Everyone has heard of letting the "toothpaste out of the tube." This is probably one of the most common mistakes made in objecting to oral testimony. Once the testimony is out, unless the testimony is so harmful that the record must be protected and a cautionary instruction given to the jury, it will probably be of little benefit to the objecting attorney to draw the jurors' attention to certain testimony that was just entered. This is particularly true if the objectionable testimony was in the middle of other admissible testimony or perhaps in the middle of a long stretch of testimony to which the jury was not paying close attention anyway. Human nature being what it is, a subsequent statement by the judge to the jury that they should discard such testimony will probably be of no benefit to the objecting attorney.

c. Giving the jury what they want. One of the most important elements to be thrown into the immediate decision of whether an objection should be made is the element of giving consideration to what the jury wants. If the jury has heard a witness say the same thing over and over, the jury will probably be thankful to hear someone object to repetitive testimony. Of course, this works both ways. Perhaps a jury wants to hear certain testimony that is objectionable. While you do not want to ask a question that will result in evidence that is clearly objectionable, once such testimony comes out, even if totally unsolicited or unexpected, an effective response may simply be to submit that such testimony is relevant and is helpful to the jury to understand the whole picture.

d. Protecting the record. Occasionally, even though testimony may have already come out, it is necessary to make an appropriate objection to protect the record for purposes of appeal or post trial motions. In these cases, where timely objection is critical, make a short, to the point objection, giving the basis of the objection with no argument, and ask to approach the bench. On these occasions, it is important to either ask the court reporter to get in a position where the objection and argument may be taken down or, alternatively, to ask the court to allow you to put the objection, argument, and ruling on the record during a break when the jury is not present.

e. Depositions for proof. Rules 30 and 32 of the Tennessee Rules of Civil Procedure control depositions and the use of depositions in court proceedings. Pursuant to Rule 32, any part or all of a deposition, so far as it is admissible under the Rules of Evidence, may be used at trial against any party that was present or represented at the taking of the deposition or against any such individual who had reasonable notice of the deposition. (T.R.C.P. 32.01). However, objection may be made at the trial or hearing to receiving in evidence any deposition or part of such deposition "for any reason which would require the exclusion of the evidence if the witness was then present and testifying." (T.R.C.P. 32.02). While the Rules of Civil Procedure seem to support the position that an objection to testimony in a proof deposition, such as the deposition of a doctor that is going to be read to the jury, may be made for the first time at trial; This is a dangerous argument. Courts are typically compelled by the counter argument that if the objection was not made during the taking of the deposition for proof, the attorney taking the deposition was not given the appropriate opportunity to fix any potentially inadmissable testimony, which is an opportunity that would have existed if the witness were testifying live. For this reason, it Is always the best practice to state the objection, and the basis of such objection, at the proper time during the taking of a deposition for proof.

C. The Defensive, Elusive, or Hostile Witness

1. The Out of Control Witness

Some witnesses are difficult to control. Whether the witness is simply being defensive, hostile, or is purposely being elusive, damage can be done if the witness is not brought under control. In some cases, the jury becomes upset with the witness and the witness's inability to act appropriately, or simple lack of desire to do so, and his or her actions will backfire on the witness. However, there are often occasions when testimony must be elicited from the witness, and allowing the witness to avoid answering questions will not work. In these instances the attorney should object to the conduct of the witness and ask that the court, pursuant to Rule 611(a) of the Tennessee Rules of Evidence, exercise control over the presentation of evidence. The attorney opposing such objection should note that Rule 611 (a) mandates that the court exercise control over the presentation of evidence and conduct of the trial "to avoid abuse by counsel." Arguably, the Tennessee Rules of Evidence do not require a witness to be cooperative.

2. Leading Questions

Objections may be made to leading questions asked on direct examination other than as is necessary to develop testimony. Of course, leading questions can and should be used on cross examination. Leading questions are the best way to handle a defensive, elusive or hostile witness. Occasionally, a witness actually called by an attorney (such as an ex‑boyfriend or girlfriend of a party) is defensive or elusive. If this happens, rather than simply asking leading questions and hoping that opposing counsel does not object, it may be of benefit to go ahead and ask the court to determine that, pursuant to Rule 611 (c) of the Tennessee Rules of Evidence, the witness that has been called is a hostile witness and that, therefore, counsel desires to question the witness by leading questions

D. Common Objections to Oral Testimony And How to Respond to Them

1. Hearsay - See Definition of Hearsay (Tenn. R. Evid. 801(c))

Other than a litany of exceptions set forth under Rule 803 of the Tennessee Rules of Evidence, hearsay is not admissible. However, it is extremely common for attorneys to characterize everything that is said outside of court as "hearsay" and then to attempt to find out whether an exception exists. Even judges will typically tell a witness that "you can't testify about what someone else told you." A great many objections to hearsay would be overruled if the attorney attempting to offer such testimony would respond to the objection by pointing out that the testimony is either not being offered for the truth of the matter asserted or that the testimony is operative facts. Each of these is addressed below.

V. HEARSAY EVIDENCE

A. What Determines Hearsay vs. Non‑Hearsay

In order to best make and manage objections in the realm of hearsay evidence, it is important both to anticipate proffered hearsay in advance of trial and to become adept at spotting hearsay evidence as it is offered at trial. A solid understanding of the definition of hearsay is therefore required.

Hearsay - See Definition of Hearsay (Tenn. R. Evid. 801(c))

This deceptively simple definition is best understood by breaking it down into two parts.

1. First, a declarant must have made an out of court statement. This statement' may be oral, written or in the form of non‑verbal conduct amounting to an assertion. The person originally making the statement, the declarant must have intended to relate some information to the witness who is in court testifying.
2. Second, this out of court statement must be offered in court to prove the truth of the matter asserted. This can be a difficult exercise in mental gymnastics while sitting at counsel table listening to a barrage of questions posed by opposing counsel. Basically, if the truth of the matter asserted in the statement is irrelevant to what is being proven, you do not have a hearsay issue. See Donald F. Paine, Hearsay in 10 Easy Steps, TENN. B.J. 31 (May/June 1997).

A classic example of this type of non‑hearsay comes up when a witness to a murder is on the stand to testify on behalf of the defendant who is claiming self-defense. The witness testifies that, just prior to the defendant killing the victim, he heard the victim say something to the effect of, "I am going to kill you," while simultaneously pulling and pointing a gun at the defendant. Both the oral and non­verbal assertions are statements intended to communicate the message that the declarant actually intended to kill the defendant.

These statements fail the second step of the analysis, however, because the truthfulness of the matter asserted in the statements is irrelevant. In order to show that the defendant killed in self‑defense, it is irrelevant whether or not the victim actually intended to kill the defendant as long as the defendant reasonably believed this to be the case. In this case the evidence should be admitted as relevant non‑hearsay.

Recognizing hearsay is never going to be simplified to a mindless task for any lawyer. However, using the basic analysis above, you should be able to begin to develop a feel for recognizing potential hearsay issues and quickly deciding whether or not the evidence offered does in fact amount to objectionable hearsay.

B. Blocking Unreliable Hearsay

Effective trial lawyers must learn the skill of quickly recognizing hearsay in order to make timely objections and block unreliable evidence from being admitted against them. There are traditionally four considerations that lead to the exclusion of hearsay evidence. These are the possibilities of the statement's ambiguity, the declarant's insincerity, the declarant's unreliable memory, and the declarant's faulty perception of the subject of the statement. See Neil P. Cohen, et al., Tennessee Law of Evidence 491 (3d Ed. 1990). Without having the declarant in the court room, subject to cross‑examination by counsel and observation by the jury, it is not possible to overcome these traditional worries.

Being able to quickly spot and object to hearsay before it comes out of the witness' mouth is an important skill to develop. If a witness is allowed to blurt out a statement which would be excluded upon proper objection, the damage is often done regardless of any limiting instruction subsequently given to the jury by the Court.

One should not jump the gun on objecting to evidence being offered that is hearsay on its face. Evidence can be admitted in certain situations described below despite fitting the description of traditionally unreliable hearsay.

C. Exceptions

The rules provide a number of exceptions to the hearsay rule which allow such evidence to come in despite being hearsay because the circumstances under which the statement was made tend to alleviate one or more of the traditional concerns listed above. See Neil P. Cohen, et al., Tennessee Law of Evidence 492 (3d Ed. 1990). The following is a brief overview of the exceptions to the hearsay exclusionary rule available under the Tennessee Rules of Evidence:

1 . Prior Statement of Identification by Witness.

This exception allows testimony in the form of a prior statement of identification of a person by a witness. In order to have evidence admitted under this exception, the declarant must testify at the trial or hearing, thus making herself subject to cross-examination. This is treated as a traditional hearsay exception as opposed to non-hearsay under the Federal Rules. Tenn.R.Evid. 803 (1.1).

2. Admission by Party‑Opponent.

This exception appears complicated at first glance, but, luckily, is relatively straightforward. After determining that the initial statement is indeed hearsay, it is wise to check to see if the statement falls within this exception. If the statement was made or attributable to the opposing party as described in the rule, it will be admitted as an admission. Tenn.R.Evid. 803(1.2).

An important distinction between this rule and its federal counterpart is that a vicarious admission (a statement made by a party opponent's agent in the scope of his agency) may come in under the Tennessee rule only if the statement was against the declarant/agent's interest at the time it was made. Again, this is treated as a traditional exception to the hearsay rule as opposed to non‑hearsay under the Federal Rules.

3. Excited Utterance.

This exception, identical to its federal counterpart, simply allows statements, otherwise hearsay, to be admitted if the declarant's statement related to a startling event and was made while under the stress of excitement caused by the event. Tenn.R.Evid. 803(2). This exception exists because at least two of the traditional concerns with hearsay evidence are alleviated.

First, the declarant is unlikely to be insincere while under the stress of excitement caused by the startling event. Also, the reliability of the declarant's memory is a non‑issue because of the short amount of time separating the event and the statement concerning it.

4. Then Existing Mental, Emotional, or Physical Condition.

Known as the state of mind hearsay exception, this exception allows testimony of a declarant's then existing (at the time of the statement) state of mind or physical condition. Tenn.R.Evid. 803(3). An important use of this exception by a skilled lawyer is to get in statements of the declarant's state of mind to prove present or future conduct.

For example, if a declarant said, "I really hate Johnny," this would get in through this exception for the purpose of proving that the declarant did something harmful to Johnny later on. This exception can not be used to prove conduct of a third party or past conduct of any party (except in wills cases).

5. Statement for Purposes of Medical Diagnosis and Treatment.

Statements made for the purposes of medical diagnosis and treatment (medical history, symptoms or cause) are admissible under this exception. Tenn.R.Evid. 803(4). This exception exists because it alleviates one of the traditional concerns with hearsay. A declarant is presumed to be speaking truthfully and sincerely when giving statements to a physician for the purpose of diagnosis and treatment so that the chances of a proper diagnosis and effective treatment will be maximized.

It is important to note that in Tennessee the statement must be for both diagnosis and treatment as opposed to the Federal counterpart's diagnosis or treatment requirement. Therefore, the Tennessee requirement is more restrictive than the Federal and, as a result, statements made to experts in preparation for trial for the purpose of diagnosis only do not come in under this exception (although they may get in under other rules regarding the basis of expert testimony).

6. Recorded Recollection.

A recorded statement, shown to be made or adopted by a witness at a point in time when the witness had accurate knowledge of the subject of the statement and this accuracy is reflected in the statement, may be admitted under this rule only if the witness is currently unable to testify fully and accurately. Tenn.R.Evid. 803(5). As with the prior identification exception, the declarant must testify at the trial or hearing in order to be subjected to cross‑examination.

7. Records of Regularly Conducted Activity.

This is an often used exception when litigating in many areas of the law. Business records that are prepared at or near the time of the event recorded, by someone with personal knowledge and a duty to record in the regular course of that business' activities are admissible to prove the truth of the contents of those records. Tenn.R.Evid. 803(6). It is important that you pay close attention to the multiple declarants issue and either establish that each was under a business duty or find another exception for those who are not.

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