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Recently, I have been thinking about the intriguing practice, or at least ‘intriguing’ in my opinion, of shouting ‘Objection!’ as a witness is questioned in court, which, as I believe it, is more a feature of the American legal system. This is something that I do not believe an advocate would generally do during a trial in England and Wales, or any jurisdiction within the UK for that matter.

This has piqued my curiosity because, as I believe it, and I am more than happy to be corrected on this point, many aspects of trial procedure were either borrowed from the English legal system, or they were parts of that system the founding generation wished to discard from its own system. However, I do not know of any source, on the internet or otherwise, which states that this practice was ever present in a UK jurisdiction. This, for me, is rather peculiar. It makes me wonder where this practice originates, and it also makes me curious to find out the reason it was implemented. I find it rather useful as a tool to prevent inadmissible evidence, during verbal testimony, from entering the record, and it’s honestly pretty entertaining during courtroom dramas too.

Any answers are welcome. Thanks in advance.

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    "his is something that I do not believe an advocate would generally do during a trial in England and Wales, or any jurisdiction within the UK for that matter." You are incorrect. The U.S. practice derives from the English practice where it continues to this day.
    – ohwilleke
    Jan 16 at 1:12
  • @owhilleke Interesting. May you please provide a source that proves this one wrong? I ask because it states that ‘[l]awyers do not say "objection!"’ in a British courtroom. This is the source: deadgoodbooks.co.uk/gillian-mcallister-crime-drama-errors Jan 16 at 1:36
  • @ohwilleke Perhaps also this source is incredibly wrong: netflix.com/tudum/articles/… – S. J. Clarkson says, ‘You can’t [raise] objections’. If that is so, do you have a source that contradicts it? Jan 16 at 1:40
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    The origin is probably Holywood movies trying to create a bit of excitement
    – Heddy
    Jan 16 at 11:37
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    @Heddy Is there any source for this claim? I would be interested to read further into it. Sometimes life is stranger than fiction, and if actual courtroom procedure came from Hollywood, who used it for entertainment purposes, that would be quite the story, in my opinion. :) Jan 16 at 15:53

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It's true that currently, barristers in England are not in the habit of saying things like "Objection, badgering the witness". They do make objections but they use different language, and do it less often than their American counterparts - and certainly less dramatically than in American fiction. The TV/movie presentation of American lawyers and judges is also obviously heightened for dramatic effect.

For example, here's an exchange from a real hearing in England (Depp v NGN [2020] EWHC 2911 (QB), from transcripts of Day 3, p455) -

Q. [...] But the point is, Mr. Depp, that Mr. Judge, your loyal employee ----
A. Yes.
Q. ---- said he noticed cuts in Ms. Heard's arm, do you remember we looked at before we broke off for lunch?
A. Yes.
Q. Which we can exclude self-harm as far as that is concerned.
MR. SHERBORNE: My Lord, is that a question or a comment?
MR. JUSTICE NICOL: Yes. Ms. Wass, I think please keep to the questions, please.

David Sherborne (Depp's barrister) did not say "Objection, counsel is testifying" or some such, and the judge did not say "Sustained", but that is still what is going on. There are several other examples in the transcript. By contrast, in closely related American defamation proceedings (Depp v. Heard, Fairfax County Circuit Court, Virginia, No. CL-2019-2911, transcript of Day 23 at p37), there are many exchanges of the form:

Ms. Meyers: Do you know how that bloody tissue got on the floor?
Mr. Depp: My best guess...
Mr. Rottenborn: Objection. Calls for speculation.
Judge: Sustained.

Historical divergence has led to England having judges who are comparatively more active in directing the progress and boundaries of argument, fewer technical rules of evidence, and a lack of juries in civil cases. One can understand why, in context, American objections are meant to be brief, explicit and on-point, whereas English ones can be more discursive. But the jurisdictions have the same concept of an lawyer being able to point out violations of the rules, with the judge's response reflected in the record.

As to what might have been said orally in an English court in 1750 or so, when raising an objection, there is probably a large breadth of possibilities. There were lots and lots of different courts with a great diversity of procedures, and a large classification of different things that might be objected to. We are really talking now about the practice of some specific court, as to when and how it's possible to interrupt the other party's questioning.

It's my sense that the exact structure "Objection, (reason)" was not commonly used. For example, in the 1806 libel trial of Edward Alured Draper at the King's Bench (30 Howell's State Trials 677) we can read an objection at columns 1019-1020.

  • The Attorney-General interrupts examination-in-chief by the defendant's counsel, saying, "My Lord, I really think I ought not to suffer questions to be put as to the feelings and principles of a man".
  • The Lord Chief Justice, Lord Ellenborough rules that he will accept the testimony "in mitigation of punishment" only, and after further interchange says that "the jury are not to attend to it".
  • Junior prosecution counsel William Garrow says, "I object to its being received at all in this stage of proceedings," and there is further discussion.

This is only a single example, but it appears quite similar to contemporary English practice insofar as everybody is clearly talking about an objection to evidence being received, but the A-G did not feel the need to say "Objection!" when making it.

In other contexts, and especially in writing, a more specific form of words may have been required. Chancery pleadings, especially, were extremely stereotyped.

Roots of the American way

General practice in common law was greatly shaped by the idea of a "bill of exceptions" introduced by the Statute of Westminster 1285, c.31. This is explained by Sir Edward Coke in The Institutes of the Lawes of England (1628-1644) at vol. 2, p426-428. In his account, oral pleadings at first instance could be denied by the judge, but then appealed by means of a "writ of error" to a higher court. The Statute ensured that the records would be accompanied by an account of the "exceptions" taken by any party, so that the higher court would have the necessary information about the alleged error. Formerly, the court record might not say what the judge had rejected or why. Coke says that "this extendeth not onley to all Pleas dilatory and peremptory [...] but also to all challenges of any Jurors, and any materiall Evidence given to any Jury, which by the Court is over-ruled", and to a variety of civil courts not yet existing in 1285. That was inherited by the American colonies and persisted after independence.

The precise mechanisms of a bill of exceptions, and a writ of error, have now been replaced in both countries by different appeal procedures. Indeed, the concept of "exception" has withered away entirely: as seen in both contemporary cases above, one laywer is objecting to the other lawyer's line of questioning, and the judge makes a decision, but at no point does the second lawyer have to ask the judge to record that decision in a sealed bill of exceptions. But the general pattern was influential for a long period. For example, although the procedure in criminal courts did not use the same terminology, it appears that a parallel practice developed whereby a disputed point of law could be put into the record for appeal.

The residue of this for American practice is that the judge saying "sustained" or "overruled" is meant to be on the official record, rather than passed over in silence. Therefore, so is the prior precise statement of exactly what is being sustained or overruled. It also helps the proceeding to run smoothly if the objections can be stated in a clear and concise fashion. I believe that American rules do not require that you must say "Objection, (reason)", in that precise form; it's more something which makes contextual sense, given the history, and is now so familiar that it would be weird not to use the standard wording.

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  • Thank you very much, @alexg. This was useful and informative. I appreciate the effort you put into your response. Jan 17 at 14:36

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