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general / Evidence

Objections to the form of questions

Given the fluid and diverse nature of trial court proceedings, there are numerous objections that can be raised to questions. This article will focus on the basic objections most widely utilized by counsel when questioning a witness. Although a question may be susceptible to an objection, it must be emphasized that tactical considerations may dictate restraint in doing so.

The objective of this article and self-study test is to review common objections made to the form of questions. Readers will learn about objections to questions considered vague, ambiguous or unintelligible, compound, argumentative, and asked and answered, or which suffer from other infirmities.

When a question is asked of a witness which counsel feels is improper, a timely objection must be made clearly delineating the specific basis for the objection. Typically, "speaking objections" should be prohibited by the trial judge. Evidence Code Section 765 provides that the court "shall" reasonably control the mode of examination of witnesses. This includes, in appropriate situations, the court raising an objection to a question on his or her own motion.

A common objection is that a question is vague, ambiguous or unintelligible. "The court may exclude a question when it determines, in its discretion, that the question is so vague, ambiguous, or unintelligible that the witness or the trier of fact may not understand its scope or meaning." 1A-20 California Trial Guide (Matthew Bender 2015) Mode of Examination: Objections to Form of Question, Section 20.15(4)(b). Evidence Code Section 765(a) provides that the court "shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth." Furthermore "[i]t is the function of the trial court to insist upon the orderly conduct of the trial and to protect the witnesses against the use of ... improper questions." Bolander v. Thompson, 57 Cal. App. 2d 444 (1943). If a question is vague or ambiguous, such an inquiry can detrimentally affect the productivity of the examination process, lead to jury confusion, and result in the record not accurately reflecting the witness's testimony. See Heafey, Cal. Trial Objections (Cont. Ed. Bar 9th ed. 2002) Question Is Ambiguous or Unintelligible, Sections 7.1-7.3, pp. 117-118.

Questions calling for speculation or conjecture are objectionable. EC Sections 702, 800, 801(b). A question that is presented to a witness calling for a speculative response should be sustained providing a proper ground for the objection applies. For instance, Evidence Code Section 702 precludes lay opinion testimony of a witness "unless he has personal knowledge of the matter." Similarly, a witness testifying as an expert must base his or her opinion "on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness ... of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject." EC Section 801(b). Without this sufficient factual basis, the witness's answer would be conjectural and objectionable.

Compound questions are objectionable. See Chavez v. Zapata Ocean Resources Inc., 155 Cal. App. 3d 115 (1984). A compound question by its nature consists of multiple questions combined into a single inquiry, and is particularly objectionable when it asks about both inadmissible and admissible matters. See Wiese v. Rainville, 173 Cal. App. 2d 496 (1959). The court can sustain an objection to a compound question by predicating its determination on the fact that it prevents the rapid, distinct and effective interrogation of witnesses and hinders the ascertainment of truth as contemplated by Evidence Code Section 765.

Argumentative questions are improper. A question is improper when it is "designed to engage [the] witness in argument rather than elicit facts within the witness's knowledge." People v. Guerra, 37 Cal. 4th 1067 (2006). The court has an affirmative duty to shield a witness from harassment and should sustain this objection when it appears that counsel is arguing or combative with the witness or the question is otherwise unanswerable. See EC Section 765. In addition to the composition and phrasing of the question, counsel's demeanor toward the witness will also be a consideration for the court when ruling on this objection. The analysis will center upon whether the question is directed toward ascertaining additional facts or information (acceptable) in contrast to initiating a verbal altercation with the witness or to manipulate the witness into capitulating to counsel's inferences (unacceptable). "An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all." People v. Chatman, 38 Cal.4th 344 (2006).

Leading or suggestive questions are objectionable. EC Sections764, 767(a). A leading question is defined as "a question that suggests to the witness the answer that the examining party desires." EC Section 764. Typically, leading questions are not permitted on direct examination but allowed on cross-examination. See EC Sections 764, 767. However, this rule is not absolute and leading questions can be asked under special circumstances when necessitated in the interests of justice. See People v. Harris, 43 Cal. 4th 1269 (2008).

Also, leading questions can be posed on direct for preliminary or background matters as well as to revive witness recollection (particularly when the question deals with a non-controversial matter or undisputed or inconsequential facts). For example, leading questions are often permitted "on direct examination for preliminary matters, refreshing recollection, and examining handicapped witnesses, expert witnesses, and hostile witnesses." EC Section 767, Law Revision Commission Comments. They are also generally allowed, in the interest of justice, with child witnesses under 10 years old or persons with a substantial cognitive disability in certain criminal prosecutions. See EC Section 767(b).

Furthermore, under certain circumstances, leading questions should be prohibited by the trial judge on cross-examination when: (a) The witness is genial or amiable with cross-examining counsel (EC Section 773(b)); (b) the witness' interests are not adverse to the party represented by cross-examining counsel (EC Section 773(b)); or (c) under particular instances where a witness is called under Evidence Code Section 776 (examination of adverse party in civil case). However, although a trial judge has broad discretion to control the ultimate scope of cross-examination pertaining to witness credibility and recollection, "wherever possible that examination should be given wide latitude, particularly in cases involving a witness against a defendant in a criminal prosecution." EC Section 767, Law Revision Commission Comments.

A question which assumes facts not in evidence is objectionable. See Fortner v. Bruhn, 217 Cal. App. 2d 184 (1963). Examining counsel cannot ask a question that incorporates facts not in evidence. Allowing questions which contain an assertion that is not satisfactorily supported by any evidence negatively affects the "effective ascertainment of the truth" as contemplated under Evidence Code Section 765 and can confuse both the witness and the trier of fact. However, if an offer of proof is made, the question can be asked if the fact will be substantiated at a later time in the trial. If proof of the fact does not occur, the trial judge will often admonish the jury to disregard the question. Alternatively, the court could sustain the objection and permit counsel to recall the witness at a later time after the requisite evidence is brought before the tribunal.

An objection on the ground of misstatement of the evidence, or misquoting of testimony arises when a witness is asked to refer to his or her previous testimony after which facts are improperly incorporated into the question and attributed to the witness. See 2 Jefferson, California Evidence Benchbook (4th ed. 2009) Section 28.50, p. 531. The inquiry may also draw inferences that are reserved for the trier of fact. This approach by an examining attorney is confusing and obstructive to the fact finding process and is clearly objectionable as being contrary to a method of interrogation effective for the ascertainment of the truth.

Moreover, most trial judges disapprove of questioning a witness about his or her previous testimony as such inquiries are of questionable relevance. Frequently, a trial judge may be unsure as to whether an objection on this ground is warranted in that it is often difficult to remember when and how certain testimony was furnished on a specific issue, especially in protracted trials. Read-back from the reporter can be helpful in this regard. However, this process can cause a significant delay in the proceedings, particularly where there has been a voluminous amount of testimony by a witness. Alternatively, to avoid creating an impediment to the continuity of the trial process, the court can ask counsel to rephrase the question eliminating any references to earlier testimony.

A question which has been asked and answered is objectionable because a witness once examined on a particular matter "cannot be reexamined as to the same matter without leave of the court." EC Section 774. Questions that have been previously directed at a witness and are repetitive in substance can be precluded by the court as interfering with the orderly interrogation of witnesses under Evidence Code Section 765(a). Additionally, "[w]ith a witness under the age of 14 or a dependent person with a substantial cognitive impairment, the court shall take special care to protect him or her from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions." EC Section 765(b). It is important to note that the court will confer more flexibility to counsel on cross-examination where efforts are made to clarify the testimony of the witness or to induce the witness to alter his or her testimony. However, where the chances are remote that a different response would be forthcoming from such inquiries, an objection on the ground of asked and answered should typically be sustained by the court.

A question may be objectionable if it calls for a narrative answer. See People v. Belcher, 189 Cal. App. 2d 404 (1961). Trial judges should insist that questions be specific and concise so that the response by a witness is not unduly broad. Questions that call for a witness to embark upon a long story, or narrative, are objectionable (e.g., "What happened when you arrived at the scene?") The primary concern is that allowing narrative responses to questions runs the risk of containing inadmissible information or matters such as hearsay or improper opinion evidence.

Under limited circumstances, a question evoking a narrative response may be permitted by the court. Such latitude is particularly appropriate in the case of children under 14 years old and individuals with cognitive impairment where providing a narrative explanation could enhance the truth-finding purpose of the proceeding. See EC Section 765(b). In this context, the trial judge has discretion to allow questions calling for a narrative answer on the basis that "the court shall take special care to protect him or her from undue harassment or embarrassment" under Section 765(b). However, "the court may, in the interests of justice, on objection by a party, forbid the asking of a question which is in a form that is not reasonably likely to be understood by a person of the age or cognitive level of the witness." EC Section 765(b).

An objection to a question may be made on the basis that it constitutes harassment of a witness because the court has an affirmative duty "to protect the witness from undue harassment or embarrassment," which applies whether or not counsel makes a formal objection to either a specific question or the comportment of the examining attorney. EC Section 765(a). As a result, if the trial judge believes that a particular question has the propensity to unduly harass or embarrass a witness, an objection on this ground should be sustained. The court's responsibility extends to the conduct and behavior of examining counsel as well. Depending upon the circumstances in this regard, the sustaining of an objection and/or an admonishment by the court to counsel is generally appropriate.


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