Often during trials, opposing counsel will object to a question I pose on cross examination as being “asked and answered.” Too often I will note that the question may have been “asked” but it was never “answered.” And all too often the trial judge will sustain this objection. The problem: there is no “asked and answered” prohibition under the South Carolina Rules of Evidence and it is clearly allowable to ask a question that has already been answered.
If it’s not in the rules of evidence, where does this “asked and answered” objection come from? In In re Anonymous Member of the S.C. Bar, 346 S.C. 177, 193, 552 S.E.2d 10, 18-19 (2001), the South Carolina Supreme Court analyzed the “asked and answered” objection in the context of a deposition:
[I]instructing a witness not to respond to a question because it has been “asked and answered” will generally be improper. No rule prevents a deposing attorney from asking the same question more than one time or different variances of the same question. The witness’s attorney can question the witness after the opponent’s examination is done to clarify any confusion brought about by the witness’s answers. An attorney may use the “asked and answered” objection without an instruction not to answer the question to establish a record of abuse where the attorney believes the questioning is approaching the level of harassment. If repetitive questioning reaches the point of harassment, the witness’s attorney should make a motion under Rule 30(d), SCRCP.
Asking a question multiple times, even when that question has been answered, is a perfectly acceptable method of cross examination. There are myriad reasons to ask repetitive questions on cross examination. “A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” SCRE 611(b). Often making a witness answer the same questions multiple times is an excellent method of testing credibility. Under the same rule of evidence, the court retains the authority to limit cross examination if the repetitive question becomes time wasting or harassing:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Questions are not objectionable merely because they have been “asked and answered.” The real objections to such repetitive questioning is that they are needlessly consuming time or harassing the witness. One can demonstrate familiarity with the South Carolina Rules of Evidence by banishing the “asked and answered” objection from one’s vocabulary and instead objecting to such repetitive questioning as harassing.
Thank you Judge Berry L. Mobley! I was in a trial years ago before Judge Mobley. The adverse attorney objected that the question was “asked and answered.” Judge Mobley asked, “What is the authority for that objection?” Since that time, I have never used that as the basis for an objection. I appreciate the way you developed this subject. Very helpful.
My problem is that I ask a simple yes or no question and the witness gives a long winded answer without every answering yes or no. I ask the question again, sometimes several times. The judge will frequently rule that the witness has answered the question even though the witness has not.
One reason why “asked and answered” is a defined objection in many jurisdictions is that repeatedly asking the same question can put undue weight on something, thereby biasing a jury into thinking something is more important than it really is. That is often why someone wants to ask a question multiple times, of course, but that doesn’t make it legitimate. Another reason is that allowing the same question over and over again can turn the cross examination into a soliloquy rather than a genuine exchange of questions and answers. I understand that your jurisdiction allows it. Nevertheless, it makes sense why others do not.
I assume “asked and answered” means that a. the question was already and asked and b. the person responded. It may not necessarily mean that the response was satisfactory or desired.