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.