Chapter 6 - 6.4 Objections To Form

• Jurisdiction: Virginia

6.4 OBJECTIONS TO FORM

6.401 In General. An objection goes to the form of the question if the objection by its own terms would allow opposing counsel to cure the objection by rephrasing the question. Examples of how these objections can be framed follow.

6.402 Argumentative.¹⁶⁸ An argumentative question uses the form of a question to insinuate the examiner's point of view. Examples include: "Why aren't you telling the truth?" and "How is it that you can remember the events of September 1st but cannot remember the events of September 5th?"

Objection: The question is argumentative.

Reply: This is cross-examination.

[If sustained] Permit me to rephrase the question.

Discussion: Although argumentative questions are generally improper, they may be allowed on cross-examination.

It would be equally objectionable for counsel to summarize facts, state conclusions, and demand that the witness agree with the conclusions.

6.403 Assumes Facts Not in Evidence.¹⁶⁹ This generally refers to an instance where there is a fact in the question that has not been testified to. This is also called a "loaded question." A question that begins with "Did you know that . . ." is typically of this type. A variation of this objection is: "Counsel is, in effect, testifying." These types of questions are often beyond the scope of direct examination and are subject to that objection as well.

Objection: The question assumes facts not in evidence.

Reply: Permit me to lay a foundation for the testimony.

The question is permissible to impeach the witness during cross-examination.

The question is directed to an expert witness and is, therefore, permissible.

6.404 Beyond the Scope of the Direct Testimony.¹⁷⁰ The American rule, which is the law in Virginia, limits cross-examination to matters elicited during direct examination.¹⁷¹ The court has discretion to prohibit cross-examining counsel from going beyond the scope of matters raised during direct examination.¹⁷² If counsel exceeds the scope of direct examination, objecting counsel should ask that the witness be treated as the witness of examining counsel.

Objection: The question is beyond the scope of the direct testimony.

Reply: The question goes to inferences and deductions from the direct testimony.

It saves the court's time to cover this material now rather than calling the witness later. Latitude should be allowed in questioning a party or an expert.

The scope of questioning was expanded when the witness was asked on direct why [he] [she] did __________. This is an attempt to bring out the remainder of the matter.

Credibility is, of course, always within the scope.

6.405 Badgering or Bullying Witness. The question is being used to bully the witness.¹⁷³

6.406 Bolstering. It is improper to bolster the credibility of a witness before the credibility has been attacked.

6.407 Compound Questions. If a question is compound or multipart, it is subject to objection because it can be confusing to the witness and may elicit nonresponsive answers.

6.408 Improper Hypotheticals. The question is objectionable if phrased as a hypothetical without an adequate factual foundation.¹⁷⁴ Things to look for in hypothetical questions are:

• The record must already contain admissible evidence of the facts as stated in the hypothetical;

• The question must contain adequate facts for the expert to form an opinion;

• The hypothetical must not misstate the evidence;

• The hypothetical cannot rest upon other opinions. It must be based upon fact;

• The hypothetical cannot be based upon argumentative inferences; and

• The question asked the witness to resolve conflicts in the evidence.

On cross-examination these rules may be relaxed. For instance, on cross-examination it may be permissible to frame questions based on assumed facts to test the credibility or competence of the witness as stated in Rule 2:704.

6.409 Impeaching Own Witness. The question is designed to impeach counsel's own witness.¹⁷⁵

Objection: Counsel is impeaching [his] [her] own witness.

Reply: Request leave of court to direct the witness to a prior inconsistent statement.

Objection: This witness was obviously called for the sole purpose of impeaching [him] [her].

Reply: The witness was called to show a pattern of untruthful behavior exhibited by the defendant.¹⁷⁶

Rule on impeaching own witness does not apply to simply presenting contradictory evidence. It may also be couched in terms of refreshing the witness's memory if the witness is avoiding the question.¹⁷⁷

Discussion: When a witness changes his or her testimony from what was expected, section 8.01-403 of the Virginia Code permits counsel, with leave of court, to direct the witness to a prior inconsistent statement made by the witness. The statute also provides that either party can request a cautionary instruction to the jury that any prior statements introduced can only be considered for the purpose of contradicting the witness.

6.410 Improper Attempt to Impeach. An attempt to impeach a witness may be objectionable on the grounds that a proper foundation has not been laid or that the subject is only a collateral matter.

Objection: Impeaching the witness without laying a proper foundation.

Reply: Permit me to show the witness __________.

Permit me to remind the witness that [he] [she] stated __________.

Counsel is testing witness's ability to observe, remember, or relate facts.

Objection: Attempted impeachment violates section 8.01-404 of the Virginia Code through the use of an ex parte statement in a personal injury action.

Reply: Counsel will use the statement as direct evidence.

Objection: Impeaching the witness on a collateral matter.

Reply: This is evidence that could be presented during my case-in-chief and, therefore, is not collateral.¹⁷⁸

Discussion: The general rule is that if the evidence could not be presented during that party's case-in-chief, then it is collateral and therefore should not be the subject of impeachment.

Objection: Counsel is attempting to impeach the witness based on statements made to counsel.¹⁷⁹

Reply: If the objection is well founded and if a second person, such as a paralegal, was present during the witness interview, then the appropriate reply is that the other witness will be called to impeach the witness on the stand.

The elements of impeachment are:

1. Calling the witness's attention to the inconsistent statement and asking if he or she in fact made the statement. In directing the witness's attention to the statement, sufficient details about the date, place, and circumstances of the statement must be given to enable the witness to explain or disprove the alleged incon-sistency.¹⁸⁰

2. Once the witness has been put on notice as to the nature, place, and time of the alleged inconsistent statement, counsel should ask if he or she in fact made the statement. If the witness denies making the statement, then the proper foundation has been laid for introduction of evidence of the prior inconsistent statement. Even if the witness replies that he or she has no memory of making the statement, the foundation will

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