With rare exception, the correct answer to any yes/no question (also known as a polar question) in your family law proceeding is: “yes,” “no,” or “I don’t know/I don’t remember” (if you really don’t know/don’t remember and could not easily know and/or refresh your memory). If you are asked a yes/no question, you are obligated to answer properly, and that means answering with: yes, no, or I don’t know/I don’t remember.
Most lay witnesses (i.e., non-lawyers) in any legal proceeding feel the need to explain their yes/no/I don’t know answers on cross-examination. It is tempting to think, “This lawyer is trying to make me look bad (which may very well be true), and so I need to set the record straight and protect myself by explaining my simple yes/no/I don’t know answer.” Resist this temptation, as alluring as it is. In the act of trying to save face, you are likely causing or laying the groundwork for causing the very damage you are trying to avoid. Your job as a witness is to give a simple, honest, and straightforward answer. Maybe examining attorney will let you explain your answer after you provide your yes/no/I don’t know response, maybe the attorney will not; regardless, it is your attorney’s job to help you provide any missing context to your answer with follow up questions in cross-examination or redirect examination.
Answering a polar question with anything else besides yes, no, or I don’t know/I don’t remember, leaves you open to at least three potential pitfalls.
- First, judges are not impressed by evasive witnesses. Unless a question is objected to and the judge sustains that objection, you must answer the questions posed to you, even if the answers are not helpful to you. Your credibility will suffer and you will likely will turn the judge against you if you appear to be avoiding tough questions. Better to own up to your flaws and show the court you can be trusted to be honest when faced with unflattering questions, rather than trying to divert the attention of opposing counsel and the court—that usually backfires.
- The second pitfall is the other side will likely object to your answer as non-responsive. For instance, when opposing counsel asks, “Did you fail to pay child support for that 12-month period?”, if the answer is yes, JUST SAY YES! Not, “Well you must understand, we own two horses, and . . .” or “But my ex is such a horrible person who never lets me see our kids . . .” If you avoid the question, opposing counsel can draw attention to that fact, which draws more attention to the question itself. Besides, with the exception of invoking your 5th amendment right against self-incrimination (when applicable), you cannot simply refuse to answer questions that you don’t like. If you refuse to answer, the court can (and will) direct you to answer the question or be held in contempt and sanctioned for it (which usually means going to jail until you answer the question).
- Third, you could end up weakening your case by providing too much information. You shouldn’t lie on the stand, but it is within your rights to answer the question that was asked of you—no more, no less. For example, if the question posed to a witness were, “And were you wearing your glasses on the day of the accident?” and the witness responded with, “Yes, and I wasn’t taking my medication that day either, so you can’t accuse me of being drowsy when the accident occurred,” that attorney may have never learned about the possible “he takes medication that can make him drowsy” angle. As they say in the navy, “Loose lips sink ships.” Giving the other side more rope with which to hang you is dangerous. An experienced attorney will pounce at such opportunities and use whatever information you unintentionally give to your detriment.
Some attorneys who question you will let you provide context to your answers, but many will not. That is why your attorney has the opportunity to follow up and help you provide that context. Be patient. Be wise. Wait for the appropriate time. Until then, answer polar questions with yes, no, or I don’t know/I don’t remember.
Utah Family Law, LC | divorceutah.com | 801-466-9277
