Why does a defense attorney (or prosecutor) need to object? Why does the judge, who is to most understanding attempting to create a neutral court of law, not simple stop the objectionable questioning or evidence, on their own initiative? Why does an objection need to be raised?

1 Answer 1


In the common law (The legal system used by the U.S. among many other nations), courts are "adversarial" as opposed to "Inquisitorial" like in Civil Law systems.

What this means is that when in court the prosecutor and defense are pitted against each other in debating the questions of the case. All questions can be boiled down into questions of law and questions of fact. This is opposed to an inquisitorial system, where the prosecutor, defense, and judge are working to answer these questions in a fact finding forum.

Because of this, in Common law, the judge takes the role of "Trier of Law", i.e. he is the arbiter of what the law says. The Jury will talk the role of "Trier of Fact". Essentially, if the prosecutor and defense attorneys are in a competition against each other, the judge will serve as the referee and decide whether something is allowed to be discussed in trial and whether the jury should count it. Because of this, the judge cannot call out objectional behavior by one side or the other as it would call into question his/her ability to be neutral in his assessment of the law. Thus it is the burden of the opposing party to object to something that is objectional.

Failure to object means that the the side that should object is okay with this activity by opposing counsel, so the judge must allow it. Sometimes, objections are raised at trial for the sole reason that they will be part of the appeal of the case. Appeals can only call raise Questions of Law, which again, is the judge's domain. Thus the judge can't object, since we operate on the fact that the judge is neutral. If the judge is not neutral, than the case can be overturned easily by an appellant court.

Essentially, the "Objection" is similar to a coach playing sportsball asking a ref to review a play on the sportsball field. Under this game rule, however, the judge is there to make the call if and only if he/she is asked to make it. Otherwise the objectionable action is permitted to stand.

  • A judge can nudge - "If you want to object to that, I'll uphold the objection."
    – Dale M
    Commented Nov 15, 2022 at 23:46
  • @DaleM I'd imagine that in those cases, the judge has already made a ruling that something is inadmissible but it's being brought in despite the ruling.
    – hszmv
    Commented Nov 16, 2022 at 13:40

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