I think if the judge reins in the defense, this case is more than winnable. If the defense allowed to lie/misconstrue evidence like they did in the prelim by shortening and removing context from SM's "I'm done" text, then the jury will be misled. The defense needs to know in no uncertain terms that rather than just getting a sustained objection, that tactic is off-limits.
The prosecution will need to really focus on a series of distinct, irrevocable facts and evidence that smoke and mirrors cannot obscure and keep hitting those in different contexts over and over. An occasional smirk regarding what "this defense team would have you believe....rolling eyes" won't hurt, either.
JMO
(Have some mercy on me....non-attorney speaking here!)
I'm not an attorney, either, but I have observed many hearings and trials, civil and criminal, and I have personal friends who are experienced trial attorneys and judges. I am fascinated by the "war stories" they tell at our social gatherings, and whenever I get the chance, I pepper them with questions about what I have observed. My observations about trials are MOO based on these sources of information, so I will defer to our WS attorney members for a more definitive response.
An experienced judge in the role of "trier of fact" does not need to rule on objections to limit what he hears. S/he has capabilities a jury would not, to sort reliable evidence and convincing argument from the bloviation of the parties. Knowing this, the parties use objections relatively infrequently in preliminary hearings, motion hearings, and bench trials. The prelim in this case likely does not give us guidance how this judge will manage his courtroom in a trial. His reputation is excellent for sound courtroom management skills.
The judge will rule on motions the defense has already filed, seeking to exclude from the prosecution's presentation to the jury evidence they consider inadmissible under the Colorado Rules of Evidence (Think SM's writings and statements to her friends and her sister, under the hearsay rule) or evidence they argue is unfairly obtained in violation of BM's constitutional rights (Think BM's statements to investigators before a Miranda warning, or evidence from his phone produced by a search warrant that is arguably not supported by probable cause). He may also consider a motion by the prosecution, seeking to limit presentation of evidence that has no purpose other than to attack SM's moral character - although these are rarely pursued. These rulings will substantially influence the trial before a jury is even seated.
After that, his conduct of the trial will largely be reactive - it will depend on objections raised by the parties during the trial. Below is a
list of common objections, with brief practical explanations for students participating in mock trials.
"
Argumentative
- This is not an objection to opposing counsel making a good point. It is used when the questioning attorney is not asking a question and is instead making an argument of law or application of law that should be argued in summation. It is only valid when the witness is not being asked a question that he or she can properly answer.
Asked and Answered
- When the question being asked has both been asked and been answered before by this attorney and this witness. It is not an objection to a question on cross that has been covered in direct.
Assumes Facts Not in Evidence
- A question by the directing attorney that contains information not yet in the record. On cross, the counsel is the one testifying, so this is not an objection.
Best Evidence
- Used when the evidence being solicited is not the best source of the information. Usually occurs when a witness is being asked a question about a document that is available to be entered into evidence. The document should be entered as proof of its contents.
Beyond Scope (of direct, cross)
- The evidence being solicited was not covered by the opposing counsel while questioning the witness and is not relevant to any of the previous issues covered.
- Since Louisiana has a wide-open cross, as does the Federal court in practice, this is basically available only as an objection on re-direct. In other words, this is NOT an objection to cross questions that were not covered on direct.
Compound question
- The question is really two questions posed as one. Objection should only be used when the question is misleading and the answer could be misconstrued by the jury.
Cumulative
- The material being asked has been covered before.
Hearsay
- A statement made out of this court offered in court to prove the truth of the matter asserted. A statement is not hearsay if the words spoken are relevant, not what the words mean.
- Most exceptions are found in Rules 801, 803, and 804. Live them, learn them, love them.
Improper Characterization
- Used when a question or an answer describes something that is highly prejudicial and not helpful to the jury. A typical example is describing the defendant or her actions as “crazy.” This is a charged word and has no real meaning unless the witness is a medical doctor who actually means “crazy.” - It’s not a very useful objection most of the time because the objection generally draws more attention to the word and thus cements the idea into the minds of the jurors.
Improper Expert Opinion
- Used when the testimony involves some degree of skill or expertise and the witness has not been entered as an expert in that area.
Daubert challenges are covered under this objection, and do not have to come pre-trial.
Improper Impeachment
- Many things “are” improper impeachment, but for the attorney the most important factors of a correct impeachment are
1. Have a concise question that the witness is currently not answering truthfully. Make sure the witness answered the question.
2. Refer the witness to the previous statement, providing the opposing counsel with a page or line number to which you are referring.
3. Ask the witness if that statement was made by her previously.
- Trying to confuse the witness into contradicting herself, not having a prior statement that directly relates to the current testimony, and not referring opposing counsel to the source of the previous statements are the big objectionable factors.
Improper Lay Opinion
- The witness is giving testimony that does not require an expertise, but is still an opinion that does not assist the jury in its understanding of the case.
Lack of Authentication
- This is a question of foundation when trying to introduce a document into evidence. A document that is not self-authenticating or whose authenticity has not been stipulated to must be identified as true and accurate by a competent witness.
Lack of Foundation
- The prerequisite evidence has not been entered that would make this evidence admissible. This could be proof that a confession has been made knowingly and voluntarily (predicate), that a witness is competent to testify to a fact, or that a document is admissible.
Leading
- The question on direct suggests an answer. This is (1) not a objection on cross examination, and (2) actually allowed in some circumstances. Which circumstances depends on the court, as state and the Federal rules can differ, but this basically covers all cases where leading is necessary to develop the testimony.
More Prejudicial Than Probative
-This is the argument: “The evidence being introduced is highly prejudicial to your client and this prejudice far outweighs the probative value.”
- This is not an objection of “This really hurts my case.” All evidence by opposing counsel will hurt your case. An objectionable piece of evidence is one that not only hurts your case but is not sufficiently relevant to the merits of your opponent’s case to be allowed.
Non-responsive
- The witness is not answering the question asked.
- Opinions differ, but this objection is primarily thought to be used only by the person asking the question.
Relevance
- The evidence being solicited does not relate to merits of the case or another admissible purpose such as foundation or permissible character evidence.
Speculation
- The witness does not have first-hand knowledge of the fact she is testifying to.
- This could be a witness's speculation on what someone else thought or why someone did something. It could also include speculation about what would have happened had x occurred."