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Suppose that a lawyer asks a question that may breach some court protocol. Is it acceptable for a witness to turn to the judge and say "Objection!" and possibly go on to explain the nature of the objection, whereupon the judge makes a ruling?

chasly - supports Monica
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1 Answers1

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Generally, a witness cannot object to a question on the grounds that it fails to conform to a rule of evidence (e.g. hearsay).

A witness can refuse to testify on a matter either due to the 5th Amendment privilege against self-incrimination, or on the grounds that some other privilege (e.g. attorney-client, clergy confession, spousal) applies.

A witness can also say that they don't understand the question as phrased (either because it is complicated or because it contains terminology or concepts that the witness doesn't understand), or that the witness didn't hear the question, or that the witness forgot what the question was while the lawyers and judges were discussing whether it could be asked. This often results in the question being restated or rephrased.

A witness may also answer a question by stating that there is no answer to the question as it is based upon a false premise (e.g. "on which day of the week did you beat your wife?"). And, if true, a witness can properly answer that they don't know the answer, either because they never knew or because they don't currently recall the answer.

ohwilleke
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    Also worth noting. I dont know is a perfectly acceptable answer. It even is the correct answer if you dont know and want to tell nothing but the truth. – Neil Meyer Feb 21 '23 at 01:00
  • @NeilMeyer True, although it is not a perfectly acceptable answer if you do not the answer, especially if the nature of the question and the context makes it obviously clear that you do know the answer. Updated to say so. – ohwilleke Feb 21 '23 at 01:02
  • What if the question calls for speculation? – Acccumulation Feb 21 '23 at 04:34
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    @Accumulation the appropriateness of the question remains a matter between the court and counsel for each party. Unless the question is withdrawn it's the witness's job to give an answer if they know it. Speculation inherently goes beyond the witness's knowledge, so depending how explicit the call for speculation is, the answer would either be "I don't know" or "I don't understand" as per above. – Will Feb 21 '23 at 10:33
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    What if answering the question would violate an interest not currently/properly represented in the court? National security is the obvious case, but there are others, such as court seals, grand jury evidence, etc. In many of those cases it might actually be illegal (and cause harm) to reveal such information, but the court may not be aware that it crosses into such territory. – RBarryYoung Feb 21 '23 at 14:10
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    Your last paragraph "no answer to the question" answers something I had always wondered. You're on the stand and sworn not just "to tell the truth" but "to tell the whole truth". So when a lawyer says firmly "YES OR NO, DID YOU _____", it is an answerable question but you may not have a real answer that conforms to yes/no. – Paul Feb 21 '23 at 15:20
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    Are you suggesting a witness would/should answer "I don't know" if asked "On which day of the week did you beat your wife?" – Azor Ahai -him- Feb 21 '23 at 16:02
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    ISTM that the answer to that question (assuming you didn't beat your wife) would be simply "no day". Probably not a good idea to go the facetious route: "On Wednesday my wife woke up at 7am. I got up at 6:45, so I beat her to the shower." – Barmar Feb 21 '23 at 16:11
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    @RBarryYoung This basically falls into the claim of privilege category. In some cases, a judge would also intervene sua sponte. – ohwilleke Feb 21 '23 at 16:39
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    This makes me wonder how it would change if instead of an ordinary witness, it was a self-represented defendant. I suppose they'd have to be able to object because there's nobody else to do so, but that would be ... weird. – bta Feb 21 '23 at 22:26
  • @bta When a self-represented defendant testifies, it just is weird. Often the self-represented defendant offers direct exam in narrative form and does object to cross-examination question like an attorney. – ohwilleke Feb 21 '23 at 22:34
  • In what jurisdictions is the witness prohibited from Asking the Court's guidance? Most basically 'Please, Your Honour, do I have to answer that?' – Robbie Goodwin Feb 21 '23 at 23:55
  • @RobbieGoodwin It is rarely clearly codified or contemplated at all by statutory enactment or court rules. It is a matter of custom and tradition in the manner in which most judges administer their courts which ironically is often more uniform nationally that law that is actually codified in a statute or a rule. – ohwilleke Feb 21 '23 at 23:57
  • @ohwilleke Thanks and that side-steps the point. It's clearly allowed, or not, or it's down to the judge… yes?

    Leaving aside what might be meant by '… more uniform nationally that law that is actually codified in a statute…'

    Is it not clear that where asking the Court's advice is clearly allowed, or is down to the judge, the witness might be expected to expand 'Please, Your Honour, do I have to answer that?' to 'Please, Your Honour, do I have to answer that? Doesn't it breach the protocol on (whatever)?'

     – Robbie Goodwin Feb 22 '23 at 00:05
  • @RobbieGoodwin Usually a judge won't take umbrage of one or two questions like that from a witness although the judge will usually quickly shut them down and direct the witness not to object further. – ohwilleke Feb 22 '23 at 00:33
  • @ohwilleke Could you stick to the facts and the law? If you think it's clearly allowed, or it's not, or it's down to the judge, why not simply say so?

    How could 'Usually a judge won't take umbrage of one or two questions like that…' be helpful, even if you'd used 'umbrage at…'?

     – Robbie Goodwin Feb 22 '23 at 22:20
  • @RobbieGoodwin Not all aspects of the law are matters for umpires. The way that a judge chooses to handle it is the law for the most part. There are settled expectations about how things are done, but they aren't always codified and the lines aren't always black and white. – ohwilleke Feb 22 '23 at 23:52
  • Would you like to be thrown into Chat, or could you bring yourself to say whether it's clearly allowed or not, or it's down to the judge?

    Even now, do you not see that 'The way a judge chooses to handle it is the law for the most part…' pretty-much contradicts 'Not all aspects of the law are matters for umpires…' or do you not see 'judges' as 'umpires'?

    Please, why not decide whether in your view it's clearly allowed or not, or it's down to the judge?

     – Robbie Goodwin Feb 22 '23 at 23:56
  • @RobbieGoodwin Like most things that are a matter of judicial discretion, there isn't an exact line between what is allowed and what is not, but it also isn't entirely up to the judge who can cross the line of what the judge is permitted to do by abusing that discretion. So, none of the three answers you'd like to see are correct. – ohwilleke Feb 22 '23 at 23:59
  • Again would you like to be thrown into Chat, or could you find a clear view to adopt? – Robbie Goodwin Feb 23 '23 at 00:08