At this Language Log entry the writer claims that witnesses in court procedings in the US are required to answer yes/no questions with a simple “yes” or “no” only–no elaboration allowed.
When I see this demand for a yes/no answer on courtroom dramas, it generally leaves me as near to seething as I ever get. I hate that trick. I’ve always assumed that IRL no judge would let a lawyer get away with this.
But was I being too optimistic? Is there really a general rule that witnesses have to just say “yes” or “no” when asked something that has the form of a yes/no question?
If the question calls for a yes or no response, then the question deserves a yes or no response. If, however, the witness wants to elaborate after the initial answer, I’ve seen judges allow it. If, however, the judge does not allow the elaboration, or if the questioner successfully cuts off the witness testimony before the elaboration comes out, then the another party can typically get the elaborative testimony in via cross-examination or re-direct.
Doesn’t it kind of go against the spirit of the swearing in of witnesses, when they are told to tell “the truth, the whole truth”? Wouldn’t restricting an answer to a yes or no be antithetical to telling the whole truth?
What does that mean? Maybe you WANT a yes or no response to try to pigeonhole me, but if I am answering the question, it may required a nuanced response that doesn’t fit neatly into “Yes” or “No”. I am the only one who knows the true answer to the question, so I should be free to answer it with the response that gives it the most justice.
How about this: “Mr. Smith, my question is simple and I want you to answer either ‘I did kill my wife’ or ‘I am a child molester’. Mr. Smith, did you kill your wife?”
I mean, if yes/no are acceptable, then why can’t lawyers also ask questions that are limited to two other choices?
I seem to recall a post, I wanna say by Bricker, that said if you’re ever on the stand and a lawyer does demand a yes or no answer, you can say something like, “Do you wish for me to break the oath I just took?”
The point in doing it this way I gather is to keep the witness from elaborating with inappropriate commentary. “Did you see my client at the scene?” is a perfectly reasonable yes or no question, and the attorney doesn’t want you answering, “No, but I know he was there!”
As long as the choices are exhaustive and mutually exclusive, sure why not? You example wouldn’t work though, obviously. It’d be like a pollster asking people if they’re voting for Barack or Hillary in the general election. The question won’t generate any valuable data because the choices don’t cover every response someone might want to give.
But what if I was at the scene taking a nap. I woke up and heard “your client”, who I have known since birth, screaming about how he wanted to kill the (insert name of murder victim).
I jumped out of bed, heard footsteps, burst through the door and saw the victim dead. I then saw a scarf that “your client” wore, the one I bought for him last year, and looked out the windows and saw a car exactly like the one I bought for “your client” last year speed away from the scene with license plate number XXXXXX that is registered to “your client”.
So, no, I didn’t technically SEE “your client” at the scene, but I don’t want you to use my direct “no” answer to somehow imply to the jury that he was not at the scene. I want to qualify my answer with the appropriate remarks so that I am not misunderstood.
IANAL, but as a layperson, and one-time juror, your scenario seems unlikely. Lawyers do not go to trial unprepared, not knowing what the witnesses have to say. Your full story would be known to them before you are called to testify. If he or she thinks your story is of value, the opposing counsel would ask you further questions on cross-examination, and your details could then come out.
In the mock trials that I participated in, you could get away with that trick a couple times, but after that, they’d start hammering you for badgering the witness.
Wouldn’t the prosecutor have already asked about the above?
Is the prosecutor likely to have asked or even highlighted whether or not you actually saw my client? Isn’t that important?
If it is critical to the case whether or not you actually saw my client, can’t I ask you to say you didn’t in front of the jury, without you reiterating how absolutely sure it was her voice?
Isn’t it up to the jury to decide the facts of the case, and isn’t it their prerogative to weigh your testimony and credibility with regards to whether or not an aural and circumstantial identification is sufficient to place my client at the scene?
As other people have said, that would be for direct or re-direct.
And the prosecutor would be free to say something like this in closing:
“Now, defense counsel makes much of the fact that Mr. Jtgain never actually saw the defendant with his own two eyes at the crime scene. However, his credible and unrebutted testimony establishes that he heard the defendant’s voice – a voice that he was familiar with since childhood. Clearly, the only reasonable conclusion is that the defendant was indeed at the crime scene.”
The fact that you made a smiley face shows how silly it is once you get into complex scenarios about a case that you can expect a witness to simply say “yes” or “no” to a question.
We are three levels into my example and it has already descended to a point where a hypothetical yes/no question is not likely. Imagine a real trial with a thousand variables out there.
As a witness, how do I know that the prosecution would say this? Maybe he’s a douchebag assistant DA who’s hungover. I want my testimony to reflect the whole sum of my knowledge of the incident that I witnessed.
I don’t want to be the guy that everyone says got Dan White off on a Twinkie Defense when he said no such thing. The Prosecutor really bailed him out on that one, right?
So, as a witness I want to be thorough and tell the “whole truth” as my oath dictates. Fuck the lawyer who wants to get me to say simply “no” that I didn’t see the defendant at the scene. I have more to say, and since I have to be there anyways, they can’t make me limit my answers…
The witness is perfectly free to say to the judge, “Your Honor, I don’t think a simple yes or no response would be helpful to the court here.” If the judge agrees with you then you’ll be able to answer in another fashion; if he doesn’t, well, it’s his courtroom. No judge worth his salt is going to let lawyers slip by with ‘Have you stopped beating your wife? Yes or no?’ type questions.
As others have alluded to, you would probably have already had the chance to say all of this in your examination in chief.
The first stage for a prosecution witness is examination in chief. The prosecutor will ask nice open questions (e.g. “Can you tell me what happened that night?”, “How did you know it was X?”) that encourage you to tell the story in your own words, because that way you’re less likely to contradict yourself in cross-examination. So you’d get the chance to give all the details of recognising the voice, the scarf and the car before you were cross-examined.
Then the defence would cross-examine you. This is where you’d get short, closed questions, often requiring a yes or no answer only, because each question will deal with a single point - (e.g. “So you didn’t actually see the defendant?”, “Was it a particularly unique scarf?”, “Could someone have been borrowing the car?”). Under those circumstances the judge may stop you from answeing questions “No, but…” or “Yes, but…” because you might only end up repeating your previous testimony or saying things that are irrelevant. Whether or not your saw the defendant’s car driving away doesn’t address the question of whether you actually saw him. On the other hand, the judge is completely free to allow you to answer the question in a more open way, even if the question is phrased “yes or no only”. As others have said, it’s his courtroom.
But, either way, nothing’s been hidden or concealed from the jury because they’ve already heard your testimony of what happened and all these details will have been told to them already.
Another thing worth noting is that one really shouldn’t be looking at it from the perspective of the witness. The opposing attorneys are (in theory) supposed to be orchestrating their cases, and witnesses, with their limited perspective, are not in a position to forward that strategy.
In other words, haven’t you ever been in a situation where the person next to you says something that actually hurts your case. For example, negotiating over a car, and your spouse innocently says something like “oh yes we need to be in this car today, the engine on our second car just seized.”
On the other hand, my mother-in-law couldn’t answer a question yes/no, no matter what the question, if her life depended on it. She talks nonstop, incessantly, and has to bring up every possible thing she’s ever known in her life that might be vaguely or remotely connected.
“Is your name Linda Smith?” would get an answer such as, “Well, on my birth certificate, my name was actually Linda Lee Jones, but when I was in kindergarden, they usually called me ‘Red’ because I had red hair, and I still have red hair, but that’s because I dye it every week, I use a brand called Dye-X because it’s cheaper at Costco than at Osco. On the other hand, in high school, because there were three girls names Linda, they called me LL. And, of course, my married name is Linda Smith, but when I was married in 1941 there was a problem because the pastor who married us was Asian and couldn’t say L’s so…”
I could easily the judge murdering her, and both lawyers insisting that she answer with one-word (or one-sentence) answers.
In my experience, in depositions and testimony, the prime directive is to answer only exactly what is asked. It is up to the both opposing counsels to build their case, not you. If they know their jobs, they will construct the questions appropriately.
