I have this impression - which may well be wrong - that witnesses are generally limited to answering the questions posed to them by the lawyers. If this is incorrect, then my question is moot. But if it is correct, then I’m wondering about their ability to clarify the context of their responses so as not to give a true but misleading answer.
For example, consider a question that is strict yes-or-no. The witness can accurately answer this, but knows that for reasons that are not at all obvious, and are likely unknown to both legal teams, the answer would be highly misleading. Can they say “yes/no, but …”? Or do they have to wait for the other legal team to bring it up in cross examination?
I seem to recall Bricker or some other lawyer doper saying if a lawyer is demanding you give a yes/no answer to a question that requires more detail, you can respond with something along the lines of, “I cannot comply with your request without breaking my oath to tell the whole truth.”
In my state, if the question calls for a yes or no answer, the witness must give a yes or no answer–but is then permitted to explain the answer. So the witness could say “Yes, because X, Y, Z…” or “No, because 1, 2, 3…”
That’s a question he would only get from the other side’s lawyer, on cross examination, and there is no bar on leading the witness on cross examination.
To the OP, there is no per se rule that a witness has to answer yes or no even if the question is structured “just tell me yes or no.” The witness is the one under oath, and if he feels it is necessary to supplement the binary yes/no answer, or if there are reasons the question is legitimately ambiguous or misleading, or if he just doesn’t know or remember what the answer is, he should be allowed to make this clear. What does “should be” mean? Means, for instance, that if he were in court, the judge would likely intervene (if the cross examining lawyer insisted “just answer yes or no”) to allow supplementation/context to be supplied, OR the judge would himself say “please just answer yes or no” if he felt, on the other hand, that the witness was being evasive or ducking a truly unambiguous question that had a clear answer.
The question is objectionable as a compound question, and as assuming facts not in evidence, and probably a few others. A compound question asks more than one question (“Do you beat your wife? Have you stopped?”) but allows for only one answer to both. The question also assumes facts not proven to be true (that the witness beats his wife).
Yes, I agree that the problem with it as a question is that it assumes something as given. So the right answer probably is to refuse to say yes or no, but to say, “Your question assumes something that’s not true.”
On direct examination, a good lawyer is asking questions of a (usually friendly) witness she has called. She will ask open-ended questions that let the witness talk at length and tell the story the lawyer wants the judge and/or jury to hear.
On cross examination, a good lawyer is asking questions of the other side’s (sometimes hostile) witness. She will ask leading questions which will, if well-phrased, lead to Y/N answers, or she will (much more rarely) ask open-ended questions to which she already knows the answer, believing that the answer will help her case. Clumsy lawyers will ask poorly-worded questions on cross and then snap, “Just say ‘yes’ or ‘no.’”
If one of those clumsy lawyers does that too much, or if it draws an objection, or if the witness is giving long answers that really can be answered Y/N, I will instruct the witness, “If you can truthfully answer just ‘yes’ or ‘no,’ you should do so. If you can’t, then say so, and the lawyer can rephrase the question. Also, your own lawyer will have another chance to ask you questions later, if necessary.” That usually does the trick.
Even if one lawyer is lame, the Judge can stop such questions themself. And a good Judge will do so, without having to wait for a lawyer to object. Sometimes they will just tell the asking lawyer “you should rephrase that question”, but I have also seen a Judge ask the other lawyer "do you think that is an appropriate question to ask your witness?’ – basically giving a wake-up call to the lame lawyer.
And, perhaps the most famous example
"Now, uh, Ms. Vito, being an expert on general automotive knowledge, can you tell me… what would the correct ignition timing be on a 1955 Bel Air Chevrolet, with a 327 cubic-inch engine and a four-barrel carburetor? "
To be clear, the situation EH is describing is most likely taking place in a deposition, which is conducted/recorded sometime prior to trial without a judge present. If the cross-examining lawyer asks misleading questions in a deposition or unreasonably demands “just answer yes or no” when it’s not that simple, EH would object on some of the grounds already identified, but then [generally] the witness would still have to answer. If a smart witness, he would have recognized the flaws in the question, and will give a “Yes, but” or “Well, I’m having trouble with the question because” answer that accurately identifies the problem with the question and gives needed nuance. If a bad/unprepared witness, he’ll get spooked and give in to bullying and blurt out “Yes, I stopped beating my wife.” Generally once he starts talking, no one can stop him till he’s done. If he does a bad blurt, EH isn’t thrilled but isn’t too mortally worried either because EH has gotten his objection on the record and can later ask the judge to preclude the misleading answer to the misleading question from being used against his client at trial. But in general the witness in such a deposition setting “has to” respond to the question (or face, in the limit, contempt), but doesn’t “have to” respond in any particular way (other than truthfully as he understands it).
If, on the other hand, the deposition question was very straightforward and the witness is unreasonably pretending it’s incomprehensible, the cross examining lawyer can’t “make him” answer yes or no even if he should, except by suspending the deposition to go to the judge and seek sanctions, etc. Alternatively, cross examining lawyer can give witness a lot of rope to hang himself with by getting his repeated shifty evasive unreasonable answers on paper/tape during the deposition, knowing they will discredit the witness assuming he ever tries to stand up at trial and suddenly start giving fluent, confident, clear responses on issues that support his side of the case. EH knows this and so if he senses during the deposition that his witness is dithering when he shouldn’t, he gives him the little verbal heads up not to be cuter with his testimony than is fairly called for.
In court it works differently – the judge handles objections to questions in real time, and will effectively decide who as between the cross examining lawyer and the witness is being more reasonable in demanding, or denying, a yes or no answer to a particular question.
The situation being discussed is one in which the misleading nature of the question is obvious. My question was about a case in which it’s not.
For example, if a witness is asked “did so-and-so say/do X?”, the correct answer is yes or no. But it’s possible that the connotations of X in that situation or among those people is very different than the ordinary connotations that such actions or words might have to ordinary people. There might be some inside joke that was being referenced, for example. Or there might be some history behind the action. This backstory or context might not be obvious to either legal team or the judge. The only one who could explain it is the witness or another insider.
Couldn’t the witness just say, I don’t understand, can you please refrain the question? Or couldn’t he say “Are you asking me XXX?” In that case, “No.”
It could lead to the cross examining lawyer agreeing to, OR saying, no, I’d like you to answer my question. At the end of the day, if they both decide to stubbornly stick to their demand for a binary answer/refusal to give one to the question as phrased, one of them is going to pay a price by being made to look bad in court, or having their testimony precluded, or being sanctioned. If this happens in open court, it will get resolved a lot faster than if in a deposition, because the judge will pounce on whichever party (the lawyer, or the witness) he feels is being unreasonable and wasting his/the jury’s time.
Even so though seems a dirty trick the opposing lawyer could use because, objection or not, the jury can’t “unhear” the question. So, “Have you stopped beating your wife” followed by an objection appears evasive. The jury probably wants to hear the answer to that and stopping the question makes the defendant look guilty by omission.
That is why a properly prepared witness is going to try to listen hard to the question and analyze the variety of ways in which an answer could be misleading. Given that the witness is entitled to a question that he can answer without a reasonable likelihood of the answer being ambiguous, he has some latitude for pushback.
“Did your company require purchase order approval for widget shipments, yes or no?”
“I’m not sure I understand the question or the context for the question.”
“What don’t you understand about it?”
“Well, for one thing, I’ve sold blue widgets and red widgets over the years. I’m not sure from your question if you’re asking me to talk about the blue ones or the red ones.”
“Well, sir, let’s start with the blue ones. Yes or no, did you need invoice approval to ship those?”
“Hmmm. I’m still struggling with that. I’ve been working here for a while, and I’m not sure what time period you’re talking about.”
“Let’s start with 2007. Yes or no, did you require invoice approval prior to shipment of blue widgets during that time period? Just answer yes or no, I don’t want to hear anything else.”
“Well, I’m afraid that’s still not possible for me to give an unambiguous answer to.”
“Sir, what about my question, which I’ve refined several times, do you still not understand? Yes or no?”
“Well, you haven’t specified whether these are foreign or domestic shipments you’re talking about.”
“Okay, let’s start with domestic. Yes or no, did you require invoice approval prior to shipment?”
“Well, to be sure we’re talking about the same thing, whose approval do you mean?”
“Who were the various people who could approve invoices?”
“During that time period, the office manager and the shift manager.”
“Okay sir, with that understanding, during 2007, for domestic shipment of blue widgets, did you require invoice approval by the office manager.”
“Yes, we did.”
“Did you require invoice approval for such shipments, during that time period, for those products, by the office manager.”
“Okay, now I understand. No.”
That witness hasn’t done anything wrong and is unlikely to suffer or incur any ill consequences for defending lawyer’s client (defending lawyer has been objecting to every question but the last one as the layers of potential ambiguity are peeled back only to have the witness helpfully demonstrate that more layers remained). That’s probably an exaggerated example but especially when the witness isn’t just stonewalling but helping point out some of the unclear (perhaps latently so) aspects of the question, he’d not be taking a horrible risk doing this even in front of a judge. Might even make the cross examining guy look like a nincompoop. Tone and judgment on what are or are not reasonable possible ambiguities to balk at are obviously a big part of it.