"To object to a question requires timing, precision, and anticipation."
"To object to a question requires timing, precision, and anticipation."
Some law students look forward to the day when they will appear in court to examine and cross-examine witnesses. I recall both my excitement and nervousness when I attended the summary hearing of my first case, an action for injunction with an application for a temporary restraining order and preliminary mandatory injunction. Then a new lawyer, I was afraid that my opponent, a more seasoned one, would shower me with objections in the presence of other lawyers and my client.
An objection is a procedure whereby a party asserts that the witness cannot answer the question for the reason stated in his or her objection. The objection to the question made in the course of the oral examination of a witness must be raised as soon as the grounds become reasonably apparent (Section 36, Rule 132, 2019 Amended Rules on Evidence [2019 ARE]). There are judges who welcome objections but there are those who frown upon repeated objections because for them, it only delays the conduct of the oral examination.
There is an advantage in making an objection because it alerts the judge that the subject of the question/s is irrelevant or immaterial to the case. It is also possible that the objectionable question may be relevant but the manner of how it was elicited, obtained, seized, or presented as evidence is not allowed or excluded by the 2019 ARE. For example, illegal substances or drugs are relevant object evidence in the prosecution of a criminal action for the violation of the Comprehensive Dangerous Drugs Act of 2002, but if the manner of its seizure is illegal the court may exclude the evidence.
On the other hand, making oral objections is a disadvantage if the sitting Judge feels that you are nitpicking on the questions of the opposing counsel, potentially delaying the proceedings of the case. Confronted with this situation, some judges will ask the objectionable questions themselves or allow the witness to answer the questions even if these are objectionable. The objective of the Judge here is to allow all evidence to be admitted to form part of the court records which he can later accept and/or reject when he renders the decision.
The most common objection to a question is that it is “leading.” A leading question suggests to the witness the answer which the examining party desires (Section 10, Rule 132, 2019 ARE). The reason for the exclusion of a leading question is that it suggests to the witness the answer. A witness testifies only on matters he perceived with his senses and by perceiving he can make known his perception to another (Section 21, Rule 130, 2019 ARE). The witness must not be influenced by another or coached directly or indirectly.
However, a leading question is allowed in the following situations: (a) on cross-examination; (b) on preliminary matters; (c) when there is difficulty in getting direct and intelligible answers from a witness who is ignorant, a child of tender years, of feeble mind, or a deaf-mute; (d) on an unwilling or hostile witness; or (e) on a witness who is an adverse party (Section 10, Rule 132, 2019 ARE). Under the Judicial Affidavit Rule, the objections to the questions or striking out of answers in the judicial affidavit must be made before the witness identifies the judicial affidavit as his or her direct testimony (Section 6, A.M. No. 12-8-8-SC).
Another objection is that the question is “misleading.” It is one that assumes a fact not yet testified by the witness, or contrary to that which he or she has previously stated (Section 10, Rule 132, 2019 ARE). It is a trick question, one that is calculated to make the witness give a false or inconsistent answer (Evidence, Ricardo Pronove). While leading questions are allowed in certain instances, a misleading question is disallowed in direct, cross, redirect or re-cross examination. For example: “You said in your previous testimony that you did not finish college, why are you now insisting that you graduated from the State University.”
Asking a “compound” question is also objectionable. It is objectionable because it contains two or more questions. It is identified by the use of the conjunction “and” or “or” (Evidence, Ricardo Pronove). It is not allowed because it may open the door to the introduction of an irrelevant and inadmissible testimony. It may also be hard for the court to determine which part of the question is being answered by the witness (Evidence, Ricardo Pronove).
A “vague” question is objectionable. Some lawyers have the habit of asking “what happened next.” It is objectionable because you cannot elicit definite answers or responses from the witness. It also allows open-ended answers. While sometimes this may be unnoticed or ignored in a practice court class, this will definitely be objected to by the adverse party if asked in court. Furthermore, it is difficult to answer this question because it is worded in indefinite terms.
A question is objectionable because it calls for a “narration.” While the Rules on Evidence requires the witness to testify on matters he perceived, the witness is not allowed to say anything that pleases him or her. The real danger of a narration in a testimony is that there is a chance that the witness will speculate, opine, or conclude. While an opinion can be given by an expert who has special skill, knowledge, experience, training, or education, an ordinary witness, as a rule, is not allowed to give an opinion. Besides, to make a conclusion from the facts and law presented in evidence is the function of the court.
A “hypothetical” question is objectionable because it is based on conjecture. This question is not allowed because it assumes facts not testified on or not forming part of the evidence on record. Only an expert is allowed to give an opinion on matters hypothetically presented to him such as opinions of medical doctors on the progress of certain illnesses, ballistics experts on the processes of firing a gun, or handwriting experts on the authenticity of the penmanship or handwriting.
Another objectionable question is a question that tends to degrade the witness’ reputation unless it is the fact in issue. For example, in an action for settlement of the estate of the deceased husband, the wife, in a hearing to determine the amount of the widow’s allowance, was asked about her previous employment as a pimp. It is a question that degrades the witness and has no direct relation to the fact in issue and therefore, must be denied (Section 3, Rule 132, 2019 ARE).
The lawyer must not argue with the witness otherwise the question may be objected to for being “argumentative.” Sometimes lawyers tend to push an issue by insisting or repeating certain questions to be able to elicit new information. The lawyer using this tactic may be seen as badgering the witness.
The witness must respond to questions but he or she is not expected to answer questions previously asked and answered. To allow this is to waste the time of the court. However, on cross-examination the cross-examiner may repeat certain questions in the direct examination as a predicate to some of his cross-examination questions.
Certain types of evidence need a foundation before they can be admitted. The foundation is a preliminary fact (Evidence, Ricardo Pronove). Thus, before the photocopy of a document is presented, its existence, due execution, and loss or destruction must first be established. Likewise, before questions about the terms and conditions of a private document is asked it must first be authenticated, and before an audio or video recording is presented its recording and chain of custody must first be established.
The ruling of the court to an objection must be given immediately after the objection is made, unless the court desires to take a reasonable amount of time to inform itself on the question presented. The reason for sustaining (granting) or overruling (denying) an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection must specify the ground or grounds relied upon (Section 38, Rue 132, 2019 ARE).
There are times when before an opportunity to voice an objection is made, the witness: (a) gives an answer not responsive to the question; (b) testifies without a question being posed; or (c) testifies beyond the limits set by the court or gives a narration. In these cases, the court shall sustain the belatedly raised objection and order the answer to be stricken off the record. This remedy is availed of by a party so that the judge will no longer consider the same in rendering the judgment (Section 39, Rule 132, 2019 ARE).
To object to a question requires timing, precision, and anticipation. A lawyer who examines a witness in court must always be on his toes. Like a wind that swiftly blows, the examination of a witness may bring surprises that can unsettle an unprepared lawyer.
