Lamson, Dugan and Murray, LLP, Attorneys at Law

As A Trial Lawyer, Form Can Trump Substance

Posted in Cross Examination, Depositions, Direct/Redirect Examination, Discovery, Trial

 As trial lawyers, events often move quickly and we make sure the substance of a particular position is made in order to protect the interests of our clients.  Unfortunately, substance doesn’t always win the day and there are times when form is extremely important.  An example of this is the Nebraska Supreme Court’s opinion in State v. Ford, 279 Neb. 453, 778 N.W.2d 473 (2010). 

During the course of this criminal trial, the prosecutor objected to a number of answers by character witnesses called by the defense as being “non-responsive” and requested the statements be stricken.  778 N.W.2d at 481.  The trial court sustained the prosecutors objections and motions to strike.  Id.  In considering the defendant’s assertion the trial court erred in sustaining the prosecutor’s objections and motions, the Nebraska Supreme Court restated the following rule:

One who wishes to object to an answer given by a witness to a question posed by opposing counsel may not object on the ground that the answer is not responsive, but must object on the ground that the answer is a voluntary statement or for some specific reason such as hearsay or a conclusion of the witness. Only the party asking the question can object on the ground that the answer is not responsive.

 Id.  Based on this rule, the Nebraska Supreme Court agreed with the defendant and determined the trial court erred in sustaining the objections and the motions. Id. 

The interesting part about all of this is Black Law Dictionary defines “nonresponsive” as “(of a reply to a question, esp. from a witness under oath) not directly answering the question asked.”  The word voluntary is defined as “unconstrained by interference; not compelled by outside influence <voluntary statement>.”  In comparing the two definitions, there isn’t much difference.  In other words, the substance of the prosecutor’s point may have been correct, the witness was not responding to the question that had been asked.  Unfortunately for the prosecutor, form mattered and as a non-questioning attorney it was a voluntary statement issue.

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