written by NITA guest bloggers Marina Kunina and Michael J. Dale
Walk into any courtroom in the United States during a trial and one will hear lawyers ask questions like, “What, if anything, happened next?” or “What, if anything, did you do after that?” This article seeks to understand the background, purpose, and place in a modern legal practice of the use of the phrase “if anything” in questioning a witness. It raises the question as to whether the phrase actually has any legal significance.
The historical background for the use of the phrase is not particularly helpful. One of the earliest case in the United States dealing with the effect of the “if anything” phrase is Albatross v. Wayne, 1847 WL 71 (Ohio Dec. 1847) In that case, the Supreme Court of Ohio was asked to determine whether the question “‘What do you know, if anything, of any custom of trade in delivering goods at Memphis by steamboats, different from the usages of other ports on the Mississippi River?’” was “unfair, leading, argumentative, and faulty in effect, if not in form.” The court, affirming the lower court’s overruling of the objection, held that the question was not “fairly liable to any such objection.” Explaining that the question was not susceptible to objection, the Ohio Supreme Court stated that “the witness, if ignorant of the customs of all the places on the river, would have answered negatively, and so the plaintiff would have gained proof from the mere ignorance of the witness against the existence of the special custom sought to be established as a valid custom at the port of Memphis.” The court further held that the question containing the “if anything” phrase “was as far from being leading as anything could be; nor was there anything unfair in it.”
In 1899, the Court of Criminal Appeals of Texas held that a prosecutor was permitted to ask, “If there was any inducement or consideration for the first act of intercourse[,] state what it was.” The Court explained that this type of question, which approximates the “what, if anything” approach, was not erroneous, as “leading or suggestive of the answer.” Harvey v. State, 53 S.W. 102 (Tex. Crim. App. 1899).
In 1855, the Supreme Court of Judicature of New Hampshire was asked to determine whether the plaintiff could introduce his own statement by asking the witness what the plaintiff said to him. The court held that the plaintiff could not introduce the statement at issue in his own way. The court said, however, that a party might ask his witness what, if anything, was said by him that induced him to take notice of what occurred. Wiggin v. Plumer, 31 N.H. 251, 271 (1855). Here, the court seemed to explain how particular wording can avoid a question to be susceptible to a hearsay objection.
In Prickett v. Sulzberger & Sons Co., 57 Okla. 567, 157 P. 356 (1916), the Supreme Court of Oklahoma, dealing with the issue of whether the administrator could introduce the deceased’s statement made to the eyewitness of the fatal incident, found prejudicial error in not allowing the question “‘[W]hat, if anything, did [the deceased] say about the elevator just before he stepped? What, if anything, was said by you and by him in reference to the elevator just as he was stepping off the bridge?’” as calling for a hearsay. Thus, the “what, if anything” phrase did not cure the hearsay.
In Nickell v. State, 205 Wis. 514, 238 N.W. 508 (1931), the Supreme Court of Wisconsin held that the question “[w]hat, if anything, did the defendant . . . say about treating or healing headaches?” was not objectionable as leading. Therefore, older case law, while recognizing the use of the phrase, does not offer much guidance about the justification for its use. Contemporary jurisprudence still uses the “if anything” phrase as, for want of a better term, a trick to rebut a leading objection. Although introductory “if anything” may sometimes correct the leading question, in the present case the question can still remain “leading and may objectionable if it improperly suggests ‘treating’ or ‘healing’ or even ‘headaches,’ or if it is disputed that the defendant said anything on those subjects.” § 27:7, Leading questions, 23 MINN. PRAC., TRIAL HANDBOOK FOR MINN. LAWYERS § 27:7 (2017–2018 ed.).
Morphologically, or form-wise, “if anything” can be regarded as a connective incorporated into the question “to prompt and guide the witness in telling his story.” In a practical sense, “if anything” phrases are utilized as the witness’s “go ahead” signal. When the witness stops testifying because of uncertainty of the appropriateness of proceeding with his answer, “if anything” “[c]onnectives help to lead the witness over such troublesome situations without being subject to [leading] objection.” § 11:37, Connectives, 2 LANE GOLDSTEIN TRIAL TECHNIQUE § 11:37 (3d ed.).
Similarly, when the question “When did you stop beating your wife?” assumes that the witness did, in fact, beat his wife and is not permissible, the question “What did the defendant do to you, if anything?” according to one writer, would be proper as not assuming anything and not being leading. Michael Catalano, 6 AM. JUR. TRIALS 605 (originally published in 1967). The authors suggest that the practical application of the “if anything” phrase may also be an effort to avoid the assuming facts not in evidence objection.
Despite the fact that historically some courts have approved “if anything” questions as not being leading, it certainly can be argued use of the phrase does not solve the problem. It has been argued that such questions tend to suggest to the witness that a positive response should be given. For instance, the question “What did you say to him, if anything?” suggests that the witness, in fact, said something to the person. Stephen E. Arthur, Leading questions; hostile witnesses, 22A IND. PRAC., CIVIL TRIAL PRACTICE § 30.20 (2d ed.).
The extreme directedness of a question can be minimalized by using “a less leading way of getting the same information available.” A leading National Institute for Trial Advocacy instructor has argued that the desired answer to an “if anything” question is not regarded as leading and, hence, would not be objectionable while producing almost the same effect as an aggressive suggestive question. Frederick C. Moss, Beyond the Fringe: Apocryphal Rules of Evidence in Texas, 43 BAYLOR L. REV. 701, 744 (1991).
It is also suggested that including the “if anything” phrase in a question may help to avoid the prejudicial effect of the testimony and even prevent some constitutional violations. For example, in State v. Underwood, 281 N.W.2d 337, 338 (Minn. 1979), the Minnesota Supreme Court found the responses by a prosecution witness to a question “Did you talk to him [defendant] any after you got back to Owatonna?” constituted comments on the defendant’s constitutional right to remain silent and, hence, were prejudicial even though elicited by defendant’s counsel on cross-examination. In absence of the appropriate defense attorney’s objection, the prejudicial effect of the testimony could have been reduced by asking, “What, if anything, did the defendant say?” § 5042 Insulating The Jury From Inadmissible Evidence, 21 FED. PRAC. & PROC. EVID. § 5042 (2d ed.).
“If anything” also is thought to be a useful tool for a redirect examination. As the scope of redirect examination is strictly limited to the scope of cross-examination, it is usually hard for the examiner to effectively develop the testimony on redirect examination, because leading questions are not generally permitted. To reduce the objectionable effect of a leading question to get at the desirable information, the “if anything” technique is widely utilized, especially where a leading question seeks to incorporate particular factual matters by refutation in the form of a denial or affirmation. § 611:12 Redirect and recross examination, WINNING EVIDENCE ARGUMENTS § 611:12.
It is obvious that hearsay objections cannot easily be eliminated by use of “if anything” in a question. For example, the question “What, if anything, did you see the officer do next?” itself may not be objectionable due to the wording used. However, the examiner cannot fully control the witness’s response, and the answer “The officer came into my store and said . . .” will still be impermissible hearsay and the objection made must be sustained. § 13:50, Hearsay, 3 LANE GOLDSTEIN TRIAL TECHNIQUE § 13:50 (3d ed.).
And finally, the “If anything” phrase is also not helpful to rebut the hearsay objection against so-called “implied hearsay,” when, although visibly not calling for a hearsay and not being leading, the “if anything” question calls for an answer that does not have any relevance except as to show what one witness said to another witness. David F. Binder, HEARSAY IN A NUTSHELL, VERDICTS, SETTLEMENTS AND TACTICS 360, 362 (1989). See Com. v. Farris, 251 Pa. Super. 277, 280, 380 A.2d 486 (1977).
In conclusion, research suggests that the phrase “if anything” is used to avoid leading questions and assuming facts not in evidence, to guide the witness, and improbably to avoid hearsay. Oddly, there are few reported opinions on the subject, and the commentary in practitioner guides seems conclusory. If the phrase “if anything” is necessary to avoid a leading objection, does that mean that multiple, otherwise open-ended questions will require use of the phrase or something like it? For example, lawyers will have to ask “What, if anything, happened next?” or “Where did you go, if anywhere, after that?” The question then to ask is whether the questions are really leading without use of the phrase. The question can also be asked in the context of the objection assuming facts not in evidence. Does the “if anything” phrase cure the facts coming first from the mouth of the attorney? The authors suggest that the phrase should be abandoned because it does not solve any of the problems it seeks to address, except perhaps to help the witness understand the question. The phrase just seems to be a traditional question filler.
Marina Kunina is a Russian attorney and May 2018 graduate of Nova Southeastern University Shepard Broad College of Law, Fort Lauderdale, Florida. She was a research assistant to Professor Michael J. Dale.
Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at email@example.com. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.
To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.
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