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Published on February 22nd, 2013 | by Trey Cox


Deal with the Volunteering Witness

If you do not insist on one word answers, some witnesses will abuse the process volunteering material that is simply not called for by the question in a partisan effort to reach out and hurt your case.  For example,

Q:      You recognized the driver in the car, didn’t you?

A:      Yes.

Q:      It was Frank Jones, wasn’t it?

A:      Yes.  He was weaving and looked drunk.

That answer was totally inappropriate and exceeded the bounds of the questions.  Most commentators suggest that you should appeal to the judge to instruct the witness to answer only the question asked.  I disagree for three reasons.  First, an appeal to the judge gives your adversary an opportunity to argue his case in response to your objection.  Second, the judge may agree with the witness, overrule your objection and milk your credibility in the process.  Third, your appeal for help shows weakness, when you could have exercised self-help and demonstrated the partisan nature of the witness’s answer.  When a witness volunteers information, it can only be of two kinds.  The information is either relevant and legally admissible or it is evidence that the examiner has a legal right to keep out of the record.  Let’s take a look at how to deal with each of these.

About the Author

specializes in courtroom fights between businesses. His jury trial experience and courtroom success have earned him the distinction of being Board Certified as a Trial Advocate by the National Board of Trial Advocacy. Trey represents Fortune 500 corporations, entrepreneurs, and leading firms in a wide array of industries. His dedication to his clients and winning track record have repeatedly earned him recognition as one of the top trial lawyers in the country.

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