An outstanding Seattle plaintiff’s trial lawyer & I have been discussing the common objection made during cross examination that the question is “argumentative” because of a trial we have a common interest in where the judge sustains cross examination questions that directly challenge the witnesses testimony as untruthful where the objection of “argumentative” is made. My position is that cross examination is confrontational and a testing ground for witness credibility by challenging the witness. I believe that judges who sustain an objection to the confrontation as “argumentative” do not fully understand the function of cross examination and the rules of evidence. I decided to share my viewpoint for your consideration.
To start in my state, Washington, the rules of evidence do not specify objections that are authorized. The rules cover admissibility. It’s up to trial counsel to object relying upon a rule of evidence as a basis for the objection or rely upon cited case law. Yet, there are well over thirty common objections routinely made by a name only without citing a rule. For example objections like: “foundation, leading, misstates evidence, assumes facts not in evidence, counsel is testifying, lack of personal knowledge, hearsay, privileged, best evidence” and on and on. There are some judges who require counsel to cite the rule of evidence for the objection, but in state court the common practice is for the lawyer to make a generic objection like “confusing, vague and ambiguous” and the judge rule without discussion.
One of the more common objections like these is “argumentative.” Judges routinely sustain this objection because of their subjective interpretation of their personal idea of what is appropriate cross examination without reference to rules of evidence. In the trial my friend and I are discussing the judge sustains an objection of argumentative when it involves a direct challenge to the witnesses testimony as not being truthful.
Too many judges think that is improper, but is it really objectionable cross examination? For example, is it against the rules of evidence and cross examination to say to the witness in a professional manner: “Isn’t true that everything you just said is a total fabrication and you are a proven liar?” I say that is totally appropriate but a large number of judges would label it “argumentative” and incorrectly sustain the objection because what they really mean is that the judge finds the question impolite and bad manners which is not a valid reason.
When the great white collar criminal defense lawyer Edward Bennett Williams defended Governor John Connolly charged in connection with the famous Watergate scandal many years ago he cross examined his accuser Jake Jacobson, a disbarred Texas lawyer. The cross examination has been cited over and over as a classic example of great cross examination. Here is the key section:
Q: Mr. Jacobson, you’re a liar, aren’t you, sir?
A: No, I’m not!
Q: Take a look at this document. It says “Statement of Jacob Jacobson” on the top. That’s you, isn’t it?
Q: And that’s your signature on the bottom?
Q: And the first sentence says, “I lied when I testified before the grand jury,” doesn’t it?
Q: So you are a liar, aren’t you?
Now, I submit that in most trial courts in my state an objection: “argumentative” to the very first question would have been sustained because of a mistaken belief that cross examination is not supposed to be cross or confrontational. Rather, a sort of logical discussion between two people over a cup of English tea. Yet all the great textbooks on cross examination and the famous trials involve exactly this kind of challenge. It is my belief the majority of lawyers and judges are not really well versed in the true purpose of cross examination and the actual rules of evidence.
Instead trial judges too often exercise their discretion about their personal view of what they think is fair or not. If they don’t like the way the question is asked or think it is confrontational or see it as professionally improper they sustain vague objections like “argumentative.” My belief that lawyers and judges have commonly created an umbrella objection they label “argumentative” which they apply to a great garden variety of questions asked on cross examination, but particularly confrontational questions .
However, tradition and the rules of cross examination make , “arguing” with the witness on cross a basic function of cross examination and not grounds per se for valid objections. I’m not talking about abusive demeanor. I’m talking about challenging the witnesses testimony as untrue for some reason including bias, lack of credibility and so on. What is impeachment by an inconsistent statement if it is not “arguing” with the witness about which point is correct? What happened to classic cross examination advice in that situation: “OK Mr. Witness, was what you said then the lie or is the lie what you have just testified to? I’m not recommending the question, but I am defending the right to ask it.
I think we have to accept the fact that “argumentative” will continue to be a vague catch all objection, but what we need to educate judges about is that challenging a witnesses about truthfulness is accepted cross examination and not subject to an objection of argumentative. The fact the witness is being confronted with a contrary position may fit Webster’s definition of arguing but the rules of evidence on cross examination expect and condone it. That’s the real issue, we need to educate judges that appropriate arguing with a witness is the essence of cross examination.