TEST Blog Post Title

Practice Point

TEST Blog Post Title

When examining a witness, counsel should ask questions that are intelligently phrased, concise, and clear in meaning. No one should have to guess at what the question means. If opposing counsel asks a question that can’t be understood or may be misunderstood by the witness, object on the ground that it’s ambiguous or unintelligible.

Ambiguous and unintelligible questions present two major dangers:

  • The witness (and therefore the jury) will be confused or misled. This could result in the witness inadvertently giving incorrect, erroneous, or uncalled-for testimony.
  • The record won’t accurately reflect the witness’s testimony. For example, counsel may be examining a witness about one document, hand the witness a second document, and ask the witness to identify the date on which it was signed. Although the question itself isn’t ambiguous, the witness’s reply may appear to refer to the first document.

When you hear such a question, object to it under the authority of Evid C §765(a):

(a) The court shall exercise reasonable control over the mode of interrogation of a witness so as to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.

Even if the witness understands the question, you should nonetheless object to it if you don’t understand it. Counsel may object to a question on the ground that it’s ambiguous “to me,” regardless of whether the witness understands the question. Keep in mind that, if you don’t understand the question, the trial of fact may be similarly confused.

The “ambiguous/unintelligible” objection is often overlooked, resulting in a witness unknowingly giving mistaken testimony in response to a poorly worded question. But on the flip side, it can be abused by counsel. For example, it may be used as a way to alert the witness to a danger presented by the examination or to present what’s in effect a brief argument to the jury. Although it’s difficult to prevent isolated abuses, bring persistent abuse to the court’s attention with a request that such “speaking objections” cease.

Here’s a tip to look better at trial: Don’t object to a question as being “vague and ambiguous.” There’s no difference between these two criteria; the objection should be that the question is ambiguous.

Get specific guidance on objections to use at trial and in depositions in CEB’s California Trial Objections.

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