July 09, 2020 Feature

Give the Witness Some Elbow Room

Allowing witnesses to give answers that go beyond yes or no would improve the quality of justice.

by Kenneth R. Berman

Download a printable PDF of this article.

Dear Trial Judges of America:

Would you consider a small fix that would have a major positive effect on the quality of justice in your courtrooms?

Resist the impulse to strike information that a witness tacks on when answering a yes-or-no question and to instruct the witness that the answer must be merely “yes” or “no.” The rules of evidence don’t require you to strike the explanation or limit the answer, and neither does the search for truth. In most cases, doing so only obscures the truth. Or buries it.

Here’s an example of the problem:

The plaintiff’s expert is opining on the value of the plaintiff’s five-bedroom house (Property A). The defendant’s lawyer thinks she can score some points by showing that a five-bedroom house around the corner (Property B) was sold shortly before the valuation date for an amount well below the expert’s valuation for Property A. The lawyer’s impeachment strategy is to show that the expert could have used Property B in his comparable-property analysis but didn’t. First, the cross-examiner asks a bunch of questions to let the jury know that valuation experts rely on data from recent sales of comparable properties and that the expert’s choice of comparables can have a profound impact on the opinion of value. She also gets the expert to acknowledge that another property around the corner (Property B) has the same number of bedrooms as Property A, yet sold for a far lower price. Then this:

Defendant’s Lawyer: Isn’t it true that, in forming your opinion about the value of the plaintiff’s house, your comparable-property analysis did not include the five-bedroom house around the corner that sold shortly before the valuation date?
Witness: Yes. I didn’t use that house around the corner because it was too different from the plaintiff’s house to be a valid comparable.
Defendant’s Lawyer: Your honor, I move to strike everything after the word “Yes.”
Judge: Granted. The jury will disregard everything after the word “Yes.”

Of course, not all of you would grant that motion. Some of you would deny it, reasoning that the plaintiff’s lawyer will just bring out the explanation on redirect, so why strike it. But in a triumph of formalism over fact-finding, many of you would allow that motion, depriving the witness of the chance to dispel, right then and there, what the witness believes will be a misleading impression: that he cherry-picked the comparables to engineer an opinion favorable to the plaintiff.

Why strike something that helps the fact finder understand the witness’s testimony better? Striking the supposedly unresponsive portion undermines the very truth-finding function that many of you believe is served by granting the motion. And as you’ll see shortly, the explanation isn’t really unresponsive. The witness’s complete answer would usually stop jurors from forming mistaken impressions that could incubate for hours and perhaps for the rest of the case. When the explanation is relevant to the answer or places the “yes” or “no” in context, striking it almost always undermines the interest of justice.

Illustration by Phil Foster

Illustration by Phil Foster

Premium Content For:
  • Litigation Section
Join - Now