July 09, 2020 Feature

Sua Sponte: A Judge Comments

A judge comments on the idea of allowing more complex witness answers.

Hon. Gregg Costa

Download a printable PDF of this article. (Sua sponte starts on page 2 of the PDF.)

The witness promises to “tell the truth, the whole truth, and nothing but the truth.” At first blush, that testimonial oath seems like a redundancy. How does the “truth” differ from the “whole truth”?

Ken Berman provides the answer: A “yes” or “no” may accurately respond, yet obscure important context that would reveal the larger and more significant truth. So I largely agree. Generally, the witness should be permitted to explain after answering a yes-or-no question, and judges should rarely, if ever, strike the testimony that follows the simple one-word response.

Striking a witness’s explanation may subvert the truth-finding process and arguably the oath. And striking can be counterproductive for the efficiency concern that is often the reason a judge cuts off or strikes testimony. Because the lawyer will be able to elicit the explanation on redirect, striking part of an answer and requiring its repetition later, on redirect, wastes the jury’s time.

For that reason, I wonder if it’s really so bad to be on the receiving end of those motions to strike. A cross-examiner who repeatedly requests that the judge strike the witness’s explanation will appear as the lawyer who is both delaying the trial and afraid of the whole truth. Once the jury sees that opposing counsel as the one who is obstructing the truth-finding process, one is well on the way to victory. And while Berman worries that redirect is too late to undo a misimpression created by a mere yes-or-no answer, ask yourself whether a jury actually disregards a struck answer.

The greater threat, then, to a trial lawyer may be when a judge directs the witness to answer only “yes” or “no” in the first place, without any explanation. I understand why judges sometimes resort to that instruction. Although it should be done sparingly, at times it is a necessary antidote to a recalcitrant witness.

Take Berman’s hypothetical expert’s response to the question about his failure to consider a nearby house when making his valuation. The answer Berman contemplates—a “yes,” followed by a succinct explanation—should not trouble any judge. But often that’s not what happens.

Assume instead that the witness responds, “Well, I’m only supposed to consider comparable sales.” He hasn’t answered the question. In fact, he hasn’t even committed to whether he viewed the other house as a comparable. Now, multiply that type of evasive answer, which happens all the time, by several instances or, more typically, by many instances. The patience of all but the most forgiving judge will be tested.

The nonresponsive witness subverts the truth-finding process and prolongs the trial. Those two threats call for some sort of judicial response. Unsurprisingly, it sometimes comes in the form of a judge’s instruction to answer just “yes” or “no.”

So, much of the ability to avoid judicial intervention in the Q-and-A process lies with the witness and thus with the attorney who prepares the witness. Witness compliance with two basic lawyer rules—listen to the question, and answer it directly—should prevent a judicial instruction to answer the question “yes” or “no.” And when an explanation is needed to ensure that the “yes” or “no” is not misleading, a brief, to-the-point explanation should prevent it from being struck. These are the very same principles that should guide lawyers answering questions during oral argument—directly answer the question, then succinctly provide your fuller explanation.

Of course, as Berman observes, many witnesses are appearing in court for the first time. What to do when your witness’s failure to provide yes-or-no answers prompts a judge’s instruction to do so?

One possibility is to ask the judge to modify the instruction to the witness to reflect that a yes-or-no answer may give the jury the wrong impression. When faced with a witness who refuses to answer a yes-or-no question that way, one federal district judge I know gives the witness these options: Answer “yes,” “no,” or “I can’t answer yes or no.” That third choice forces the questioner to either modify the question or allow the witness to give an explanation.

From the judge’s perch, there are times when the measures Berman critiques may be necessary. But he’s right that striking explanations undermines the truth-finding role of courts. That measure is extreme and should not be used lightly. What to do when the judge is considering such a motion to strike? Invoke the oath. Remind the judge that the witness has taken an oath to tell “the whole truth,” and that’s not possible unless the witness is allowed to put the answer in context.

Berman’s article is a useful reminder of the wisdom of the venerable oath. And judges and lawyers alike would also do well to remember another theme of Berman’s article: As much as we may want to be the central actors in a trial, it is the witnesses—the only participants in a trial whose statements are evidence—who will lead us to the truth.

Hon. Gregg Costa

The author is a judge on the U.S. Court of Appeals for the Fifth Circuit.