Courtroom Drama With Yes/No Questions

April 6, 2016 5:09 PM

Courtroom dramas on TV often depict an expert witness giving complex testimony about possibilities and likelihoods, only to be shot down by a lawyer insisting that they answer only yes or no, thereby giving a false impression of their testimony. Does this happen in real life?

An example would be a lawyer asking, "can you be 100% sure this drug killed the man, yes or no". The doctor tries to reply that the drug usually has a fatal effect but it's impossible to know given the complexity of the situation/lack of direct evidence/various possibilities (and so on), but the lawyer butts in and insists, "answer yes or no." Obviously the expert has to say "no", thereby suggesting that the drug didn't kill, when the opposite is more likely.

Would a judge not shut down this kind of nonsense and let the expert give an answer as complex as needs be? Or could a lawyer really pull such a trick and get away with it? It seems to me cooked up simply for dramatic effect and not something that would (or should) ever fly.

Info about different jurisdictions is welcome, though common law (specifically US and UK) specifically wanted.

posted by Emma May Smith to Law & Government (17 answers total)

I think the answer is it depends on the jurisdiction, it depends on the case, it depends on the expert, it depends on the question, it depends on the lawyers, it depends on the judge, it depends on whether it's raining that day...
posted by Chocolate Pickle at 5:23 PM on April 6, 2016

This may help as a reference. Can't help much in terms of direct experience.

[Emphasis mine]

From brown.edu link [DOC file]

"Remember to ask LEADING questions. The witness’s answer should be limited to yes or no by the question. Also, keep the questions fairly simple – only one question at a time, and the shorter the questions the better. It is important to be firm with your witness, but be careful about how aggressive your cross becomes. You never want to sound like you are yelling at or arguing with a witness.

LEADING QUESTION, WHAT TO DO:
You were on the 30th floor at 8:45 PM, weren’t you?
The defendant was wearing, black, right?
Her shirt wasn’t white, was it?
And there was nothing blocking your view of her?

NEVER EVER ASK A QUESTION that is open ended or allows the witness to go into a lengthy explanation, such as any question beginning with “why”.

For Witnesses:
The cross examination is not an attack on you – it is merely an examination from a different perspective. However, you will need to think quickly and answer questions carefully and cleverly. You don’t have to make sure you only agree or disagree with everything the crossing lawyer asks you – be confident of your observations and opinions. Remember what is helpful and hurtful for your side, and if you can, skew your answers in favor of your side, but don’t contradict your affidavit or blatantly invent facts. The only time you are not bound by your affidavit is if the crossing lawyer asks you something completely outside of your affidavit (but you still cannot contradict yourself). Memorize your affidavits carefully and plan ahead for potential problem areas. Also, you are entitled to explain all answers. Remember – if you can’t answer a question with just a yes or no, say so."
posted by circular at 5:23 PM on April 6, 2016 [4 favorites]

Lawyers can do this, but they have to be extremely careful not to annoy the judge. Also, both sides can ask the witness questions (potentially two times each, or more if they can convince the judge there's more the witness can offer,) so there's not a ton of value in this kind of rhetorical gamesmanship.

There's a separate thing of getting someone declared a "hostile witness," which none of the trial lawyers I know have ever done outside of classrooms/competitions. Most of the time, trials are really boring and the hardest thing about a witness is that they're completely inconsistent or confusing. Also, most criminal matters never actually get to a "questioning witnesses on the stand" phase.
posted by SMPA at 5:26 PM on April 6, 2016 [1 favorite]

Also: some lawyers are weirdly good at getting away with this, while some judges are completely intolerant of lawyers trying it. This is one reason why people try to get on different dockets if they can, why some lawyers get hired by people like OJ Simpson, etc. It's also why having a special judge come into a small town (because the local guy has a conflict of interest) becomes highly entertaining: the rules change overnight. Not just "leading the witness" rules - everything, including things like "can anyone wear jeans in the courtroom."

You would not believe how much everything depends on the mood and opinions of the judge.
posted by SMPA at 5:32 PM on April 6, 2016 [3 favorites]

I gave a deposition once and my lawyer told me that there are only four good answers:

1. Yes
2. No
3. I don't know
4. I don't remember

Unless the witness is an expert, explaining something, brevity is optimal. When you start yammering on, you hang yourself.
posted by Ruthless Bunny at 5:33 PM on April 6, 2016 [5 favorites]

I have been an expert witness a few times in the past. Unlike TV, the lawyers are not really allowed to interrupt you, and you can request to finish your answer if you are interrupted and want to (at least in the places I testified). So even if you are asked a yes/no question you can provide an explanation along with your answer.

I also read some "How to be an expert witness books" that recommended an answering technique that makes it hard for you to be misquoted later. For example, if asked a yes/no question and you say "No, but ...(explanation)" the other side can later, when quoting you, edit the quote to omit the explanation, like: "No...", and this causes grief for you later.

For important yes/no questions that you know the answer is misleading and you want to explain, you can phrase things in a way that prevents this. Instead, you say "Although the answer is no, it is misleading because...(explanation)". Now there is no place for them to make a decent edit cut to make it look like you said no. This also helps when someone might be trying to limit you to yes/no - you get a full answer out with an explanation and you are answering the question directly.
posted by procrastination at 5:38 PM on April 6, 2016 [15 favorites]

It does depend on the judge. It's also important to keep in mind that insisting on a yes/no answer generally only plays well with the decision-maker if the question really can reasonably be boiled down to such an answer and/or the witness appears evasive, bloviating, or dishonest. Most people understand that many questions require more than a yes or no answer and tend to appreciate rather than resent a fuller answer to a question. So this tactic's usefulness is limited.

Instead, you say "Although the answer is no, it is misleading because...(explanation)". Now there is no place for them to make a decent edit cut to make it look like you said no.

Sure there is. "[T]he answer is no."

If the counsel is too dim-witted to handle either such misleading form of quotation, she deserves to lose her case.
posted by praemunire at 5:47 PM on April 6, 2016 [1 favorite]

It's (99.9% of the time) not as dramatic as TV, but yeah, a witness does have to answer the questions asked, and it's not the witness' place to decide to answer things that weren't asked, and lawyers are entitled to--and need to-- get the witness to answer what was asked. (How obnoxious they can be in doing this varies.)

This is why there is direct and cross examination, and redirect and recross, etc etc. So if one side has gotten the expert to admit that something is POSSIBLE, then the other side then gets to ask the expert in their experience how LIKELY that would be. The witness is there for a reason, and it's not to be a lecturer.

This sort of questioning is not always to lead, or protect, either. Sometimes it's to present information clearly and concisely step-by-step to a jury. If a witness yammers on, the jury is not going to note or remember pertinent case info and a yammering witness will introduce ambiguity or confusion. Human speech and human memory make it surprisingly hard to relay facts and events of even the most mundane events (try telling the events of your morning four days ago off the top of your head without backtracking, contradicting yourself, forgetting, etc.) If you're ever called for jury duty you will appreciate pointed questions and short answers.
posted by kapers at 6:41 PM on April 6, 2016 [2 favorites]

In my experience, the witness has a lot of control. I've used "I don't think I can answer that question with a simple yes or no without misleading the court" to good effect. You can almost always clarify -- even if you are cut off. I've found judges to be much more tolerant towards my rambling than the opposing attorney would like. "May I finish?" also usually works pretty well.
posted by Lame_username at 7:06 PM on April 6, 2016 [7 favorites]

I was deposed by a lawyer who wanted to do this and only this, it was his sole trick, and it was infuriating. Most of the transcript is him asking questions in the form, "Have you stopped beating your wife? Yes or no, please," me responding, "I can't answer that question," and then him and my lawyer arguing for five minutes over whether I was being uncooperative. I was not called in the case, but his courtroom strategy was basically the same. He got away with less of it in the courtroom because there was a judge there to make a ruling rather than a pair of lawyers arguing for the deposition record, but he still got away with some of it.

(It was a wrongful termination case where a dude falsified a bunch of HR evaluations and paperwork for his subordinates (to their detriment) and really didn't feel he should be fired for this.)
posted by Eyebrows McGee at 7:42 PM on April 6, 2016 [3 favorites]

then him and my lawyer arguing for five minutes over whether I was being uncooperative

See, if he had a legitimate argument that you were being uncooperative, he could have called the judge or made a motion afterwards. But he didn't, so he knew he wasn't solidly in the right. Thus, he just wasted some big chunk of his 7.5 hours with those shenanigans. Sometimes lawyers, especially dude lawyers, get so enamored at the thought of getting away with something "clever" that they fail to ask themselves whether they're actually benefiting from it.
posted by praemunire at 7:59 PM on April 6, 2016 [1 favorite]

I gave a deposition once and my lawyer told me that there are only four good answers:

1. Yes
2. No
3. I don't know
4. I don't remember

Also good is, "I don't understand. Please rephrase/repeat the question."

To answer the original question, keep in mind that, in theory, every witness has an attorney looking out for them, trying to ensure their testimony helps their case, as opposed to being discredited. If an attorney gets out of hand, the other attorney can raise an objection on all sorts of grounds, including badgering the witness.
posted by Cool Papa Bell at 8:17 PM on April 6, 2016 [2 favorites]

I've wondered about this too. If you've taken an oath to tell the "whole truth", how can a lawyer limit your testimony to a half-truth?
posted by Jode at 5:00 AM on April 7, 2016

So this has a lot to do with the interplay of direct examination, cross, and redirect.

On direct examination, where you've called your own witness (and normally had plenty of time to prepare them beforehand), you're not allowed to ask leading questions. "What time did you arrive?" is allowed. "Did you arrive at 7:35PM?" should prompt a quick "objection -- leading the witness" if the other side cares about the answer.

On cross examination, where you're challenging a witness called by the other side, you are allowed to ask leading questions, because the witness is assumed to not want to cooperate with open-ended questions. (And in practice there's no way to prep opposing witnesses, so if you couldn't lead them you'd have to waste a lot of everyone's time.)

The idea of having a witness declared "hostile" would be to say, the usual assumptions don't hold here -- I called this witness myself but they're acting like an opposing witness and refusing to give useful answers, so I should be allowed to ask leading questions to get anything out of them. You'd have to be in dire straits to call a witness like that in the first place, though.

So anyway, the usual strategy on cross examination is to ask only questions with an unambiguous "yes" answer. If it looks like you're trying to hide something that comes after the "yes," you've screwed up. Those TV shows need a sense of unfairness for drama, but if there's a sense of unfairness it's bad lawyering. The impression should be that you're just bringing out some facts that everyone agrees on but that the other side was hoping wouldn't come out (probably because that's what you're in fact doing -- there's always some inconvenient facts).

The trick here is to know when to stop. If the answers are going to be "yes," "yes," "yes," "yes," "yes but ...," you ask the first four questions -- and you don't ask the fifth. Save the fifth point for closing arguments, when the expert isn't around to respond anymore.

The trick for a witness is knowing the difference between a "yes" and a "yes, but" -- on the first four questions, the lawyer's actually hoping you'll try to deflect or explain, because we all know the answer, and not giving it will just make it look like you have something to hide -- and hopefully lead you to say something you haven't prepped for.

Of course the whole time the other lawyer is listening, and has the opportunity to come back and clarify anything on redirect. So their job is to know where all the "yes" questions are heading, watch the witness and see when they really have a response they'd like to give, know whether that response is actually going to be helpful, and go back and ask the clarifying question.

I'm generally an optimist and think that all these micro-optimizations don't matter all that much -- what's mostly important is the sum of information that comes out in direct and cross and redirect. Misleading quotes are just going to hurt you. And in the particular case of expert witnesses, if both sides have competent experts with nice resumes and the facts are unclear enough to go to a jury in the first place, it probably ends up pretty much a wash.
posted by john hadron collider at 6:09 AM on April 7, 2016 [8 favorites]

I sued my landlord, who happened to be a lawyer, in small-claims court several years ago, and he tried this on me. He asked a question, I started giving my narrative answer, and he interrupted me with "Yes or no? YES OR NO?!" I explained to the judge that a yes or no answer wouldn't be telling the whole truth, and asked if I had to answer that way. The judge looked at the other guy with raised eyebrows and gave a pretty annoyed-sounding "He can't dictate the way you answer questions, no." But I think that judge was pretty annoyed that the guy was trying to act like a TV-drama lawyer in small-claims court in the first place.

I did get the $850 the guy owed me.
posted by pupsocket at 9:56 AM on April 7, 2016 [3 favorites]

I was just reading up on a case where a known legal scholar had to testify before a parliamentary committee. Toward the end, the committee chair asked him a series of yes/no questions and tried to make him give yes/no answers. He refused and kept adding qualifications to his yes/no answers, arguing that because he was under oath, he was obligated to answer with all possible precision.
posted by bleston hamilton station at 11:20 AM on April 7, 2016

I gave a deposition once and my lawyer told me that there are only four good answers:
1. Yes
2. No
3. I don't know
4. I don't remember

But what if the question is the classic, "Have you stopped beating your wife?" ?
posted by w0mbat at 8:09 PM on April 7, 2016