One of the most common trial objections is “Objection, non-responsive,” an objection which is often followed up by a motion to strike or to instruct the jury to disregard. Yet, conspicuously absent from the Texas Rules of Evidence is any rule providing that non-responsive answers are inadmissible or subject to exclusion.
The fact is, many non-responsive answers may be properly received into evidence, and when a court declines to exclude or strike a non-responsive answer, oftentimes no error is committed. Because there is no wholesale bar to admissibility of non-responsive answers, one must look to other rules for guidance to determine admissibility in specific circumstances.
Texas Evidence Rule 402 provides that relevant evidence is generally admissible. Rule 103(a)(1) provides that if the ground for objection is not apparent from the context, an attorney has the duty to enlighten the court as to why it is inadmissible. Reading the two rules together suggests that a court may allow non-responsive testimony into evidence if it is relevant and no other objection is lodged or apparent from the context. However, TRE 611(a) confers authority to the court to exclude that evidence as well:
“The court shall exercise reasonable control over the mode and order of interrogating a witness 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.”
Provided the court’s exercise of control is “reasonable,” in the quest for truth, efficiency and fairness, whether to admit or exclude non-responsive answers is left to the discretion of the trial court when no other ground of objection is lodged or apparent from the context.
In practical terms, when an attorney makes a “non-responsive” objection to evidence which otherwise appears to be admissible, the trial court has several permissible options. If an answer is completely non-responsive to the question posed, then a judge is very likely to sustain the objection. After all, attorneys are entitled to receive answers to questions properly propounded.
However, the outcome becomes less predictable if, after responding to the question, the testimony takes a non-responsive turn. In that situation, a judge might sustain a non-responsive objection on the basis that the additional testimony is repetitious. An objection might also be sustained to avoid a rabbit trail which the judge believes would result in ineffective presentation of the evidence. But a judge might also overrule the objection, especially if the testimony, albeit non-responsive, serves to clarify, explain or provide further details about the responsive portion of the answer in an effective and efficient manner. Finally, there is nothing to prevent a judge from applying a very rigid approach, requiring strict adherence to responsive answers in Q & A form at all times, sustaining all valid non-responsive objections raised. All of these approaches are well within the discretion of the trial court.
For that reason, a trial attorney should not rely on a “non-responsive” objection, especially when considering the preservation of error. Instead, attorneys should focus on whether non-responsive answers are objectionable on other grounds. Assuming other grounds exist to exclude the evidence, then the trial court’s discretion to admit or exclude the non-responsive answer can be substantially limited by combining another valid objection with the non-responsive objection.
If a non-responsive answer contains hearsay, for example, then a hearsay objection should be included, e.g., “Objection — non-responsive, hearsay,” or simply “Objection — hearsay.” Either objection will apprise the court of the true reason why the answer should not be admitted into evidence, i.e., that it is objectionable hearsay. By so doing, the court’s attention is focused toward a particular rule which would require, as opposed to simply permit, exclusion under the circumstances.
What does this mean for trial testimony? There is nothing inappropriate about making a non-responsive objection. It’s a great objection when an attorney wants the court to rein in a witness who is either evading questions or simply won’t shut up. But the court is not bound to do so. If the real problem is what is being said, as opposed to when it is being said, then the objection needs to identify that ground of objection, e.g., “Objection — irrelevant,” “Objection — hearsay,” “Objection — best evidence,” etc. By so doing, the court is forced to make an evidentiary ruling which carries with it far less discretion on review.
What does this mean for deposition testimony? Ironically, the only objection permitted to deposition answers under Texas Rules of Civil Procedure 199.5(3)(e) is “Objection, non-responsive.” Nonetheless, since non-responsive deposition answers, if otherwise admissible, may be received into evidence, an attorney cannot rely on the “non-responsive” objection alone as a basis for exclusion of the testimony at the time of trial. At the time of challenge to the admissibility of deposition testimony for use at trial, the attorney should focus on the substantive objection. As with live testimony, such an objection will serve to both apprise the court as to why the evidence needs to be excluded and preserve error for later review.
– Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas