Monthly Archives: November 1967

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1967.11.17: Profs oppose Murphy’s placement policy (UCLA Daily Bruin)

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1967.11.00: Waiver of Objections to Former Testimony, 15 UCLA Law Review 118-55 (1969) (OCR)

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15 UCLA L. Rev. 118 1967-1968

WAIVER OF OBJECTIONS TO

FORMER TESTIMONY

Leon Letwin*

The image of a lawyer poised to object the instant his adversary

asks a defective question is a familiar one. His desire to object

promptly is understandable. If he delays until the answer is given,

the testimony may have an adverse impact upon the factfinder even

if it is subsequently stricken. In any event, the court will probably

refuse to strike it, following the rule that failure to assert an objection

promptly constitutes a waiver.’

Assume now that the evidence is not offered through a witness

testifying viva voce, but rather through testimony given by the witness

on a prior occasion. Though classified under California law as

hearsay if offered to prove the truth of the facts recited,2 the prior

testimony might be received at a pending hearing under well established

hearsay exceptions for depositions and “former testimony. ‘

* Ph.B., University of Chicago, 1948; LL.B., University of Wisconsin, 1952. Acting

Associate Professor of Law, University of California, Los Angeles.

1 See generally C. MCCORIMCK, EVDENCE § 52 (1954) [hereinafter cited as

McCoRMcK].

2 The Evidence Code defines hearsay as evidence of a statement made “other than

by a witness while testifying at the hearing” in which it is offered. CAL. Evm. CODE:

  • § 145, 1200 (West 1966). Professor McCormick prefers this view. McCoRMiCK, supra

note 1, at § 230. On the other hand, under Professor Wigmore’s definition, such testimony

is not hearsay if there had been adequate opportunity for cross-examination. 5 J.

WiGmoRE, EVIDENCE §§ 1370-71 (3d ed. 1940) [hereinafter cited as WIGMORE]. Since

the requirements for use of such testimony are normally the same under either view,

there is little practical consequence in whether it is admitted under a hearsay exception

for prior testimony or because it is not hearsay at all.

3 The justification is that which usually supports hearsay exceptions: the need for

the testimony because of the witness’s present unavailability and its relative trustworthiness,

the witness having been under oath and subject to cross-examination at the prior

hearing. Issues as to whether the necessary statutory and constitutional conditions for

the use of such prior testimony have been met are beyond the scope of this paper.

These include such matters as the similarity of the issues and identity of party as between

the former and present proceeding. CAL. Evm. CODE § 1291 (West 1966). A

frequently litigated limitation is that which makes the unavailability of the witness a

condition of admissibility. For depositions in civil actions see CAL. Con CiV. PRO.

  • 2016(d) (West Supp. 1966). For depositions in criminal actions see CAL. PEN. CODE
  • § 1345, 1362 (West Supp. 1966). For former testimony see CAL. Evm. CODE §§ 1291(a),

1292(a) (1) (West 1966).

A constitutional issue may arise in connection with the offer of testimony from a

preliminary hearing in a criminal case upon the trial, under the Sixth Amendment’s

guaranty of the right of confrontation. Such right was held denied where the testimony

was offered against a defendant who had been unrepresented at the preliminary hearing.

Pointer v. Texas, 380 U.S. 400 (1965).

The term “former testimony” has at times been used to embrace all forms of testi-

WAIVER OF OBJECTIONS

The offer of such evidence presents a substantially different aspect

of the problem of timeliness of objections. Is it sufficient that the

opponent object promptly as the evidence is being offered, just as

in the case of a witness testifying from the stand? Or must he first

have stated his objection at the prior hearing as a precondition to

asserting it at the present hearing?

Statutory provisions contemplate an answer dependent on highly

technical distinctions. The result of the failure to object at the prior

proceeding may vary from no waiver, to waiver only of “form”

objections, to waiver of objections that are either “formal” or “obviable.”

Moreover, in some cases waiver is restricted to objections

merely to the form of the question, while in others it reaches objections

going to the answer as well.

Thus in a criminal case, if the testimony offered is from a

deposition taken in the same action, no objections would be waived,

and they could be successfully interposed for the first time at

trial.4 If, however, the deposition was taken in another action,

then its admissibility would be governed by California Evidence

Code section 1291(b)(1), with the result that “[o]bjections to the

form of the question which were not made at the time the former

testimony was given” would be waived.’ If the testimony offered is

mony from prior hearings, including depositions. See, e.g., MCCORMICK, supra note 1,

at § 230. CAL. EviD. CODE § 1290 (West 1966), however, employs a narrower definition

so as to exclude those depositions taken in the same action in which they are subsequently

offered, and this usage will be followed herein. The use of former testimony is

regulated by CAL. EvmD. CODE §§ 1291-92 (West 1966). See generally 5 WIGmROE, supra

note 2, at §§ 1370-83.

The rules as to the circumstances under which a deposition may be taken in a civil

action and the conditions for its use at the trial are interspersed in the Discovery Act,

CAL. CODE CIV. PRO. §§ 2016-36 (West Supp. 1966). Operative since January 1, 1958,

this Act is substantially patterned after FED. R. CIv. P. 26-37.

Depositions may, under certain circumstances, also be taken in criminal cases. If

the witness is within the state, the proceedings are governed by CAL. PEN. CODE

  • § 1335-44 (West 1956), § 1345 (West Supp. 1966); if the witness resides outside of

the state, by CAL. PEN. CODE §§ 1349-62 (West 1956). See CAL. PEN. CODE § 882 (West

1956) in which provision is made for taking depositions in lieu of bond.

It is quite possible that evidence of prior testimony (meaning either “former”

testimony or deposition testimony) may be admissible on some other ground, as where

it is offered for a non-hearsay purpose or under some other hearsay exception, e.g., the

admission of a party. In that case, of course, the testimony is admitted independently

of the exceptions for prior testimony and the conditions applicable to its use are

irrelevant.

4 CAL. PaN. CODE § 1345 (West Supp. 1966) provides “The same objections may

be taken to a question or answer contained in the deposition as if the witness had been

examined orally in court.” CAL. PEN. CODE § 1362 (West Supp. 1966) similarly provides.

5 The applicability of this section depends on the following reasoning: CAL. PEN.

CODE § 686(3) (b) (West Supp. 1966) makes deposition testimony admissible to the

extent otherwise admissible under state law. CAL. EviD. CODE § 1290(c) (West 1966)

defines former testimony to include a deposition taken in another action. CAL. Evim.

UCLA LAW REVIEW [Vol. 15:118

from a preliminary examination or a prior trial in either the same

or another action, such testimony would likewise be subject to the

form-waiver rule. 6

In a civil context, if the testimony offered is from a prior trial

in either the same or another action or from a deposition in another

action, again only objections to the form of the question would be

waived.7 If, on the other hand, the evidence offered is from a deposition

on oral interrogatories taken in the same action, then, under the

1957 Discovery Act waiver would extend to objections which went

either to the form “of the questions or answers” or which “might

have been obviated or removed” at the deposition.8 If, however, the

deposition had been conducted on written interrogatories, only objections

to form would be waived by the failure to make objection

in advance of trial.9 Finally, if former testimony were offered against

a person who was not a party to the former proceeding, no objections

would be waived.”0

In most of the cases mentioned above waiver is governed either

by the obviability test of the 1957 Discovery Act 1 or by the form

CODE § 105 (West 1966) defines “action” to include civil and criminal proceedings alike.

Since the deposition is, thus, “former testimony”, the waiver provision of CAL. Evm.

CODE § 1291 (West 1966) comes into play.

6 Such evidence is former testimony under CAL. EvID. CODE § 1290 (West 1966).

CAL. PEN. CODE § 686(3) (a) (West Supp. 1966) makes CAL. EvID. CODE §§ 1290-91

(West 1966) applicable through a general cross-reference to admissible hearsay. See

CAL. Evm. CODE § 1291, Comment by Assembly Committee on Judiciary (West 1966).

7 CAL. Evm. CODE §§ 1290(a), (c), 1291 (West 1966).

8 CAL. CODE CIV. PRo. § 2021(c)(1)-(2) (West Supp. 1966).

9 CAL. CODE Crv. PRO. § 2021(c)(3) (West Supp. 1966).

10 CAL. EviD. CODE § 1292(b) (West 1966).

11 CAL. CODE CIv. PRO. § 2016(e) (West Supp. 1966), provides that evidentiary

objections may be made at trial just as if the witness were present and testifying,

except so far as limited by CAL. CODE CIv. PRO. § 2021(c) (West Supp. 1966). That

section provides:

(c) (1) Objections to the competency of a witness or to the competency,

relevancy, or materiality or testimony are not waived by failure to make them

before or during the taking of the deposition, unless the ground of the objection

is one which might have been obviated or removed if presented at that

time.

(2) Errors and irregularities occurring at the oral examination in the

manner of taking the deposition, in the form of the questions or answers, in

the oath or affirmation, or in the conduct of parties and errors of any kind

which might be obviated, removed, or cured if promptly presented, are waived

unless seasonable objection thereto is made at the taking of the deposition.

(3) Objections to the form of written interrogatories submitted under

section 2020 or section 2025 of this code are waived unless such objections, together

with a notice of hearing thereon, are served in writing upon the party

propounding them within the time allowed for serving the succeeding cross or

other interrogatories and within three days after service of the last interrogatories

authorized.

Other portions of section 2021 provide for the waiver of objections directed to

— 15 UCLA L. Rev. 120 1967-1968

19671 WAIVER OF OBJECTIONS

test of Evidence Code section 129112 relating to former testimony.

The object of this paper is to compare and evaluate the respective

waiver tests.

Preliminarily it may be inquired whether the two tests in fact

differ or whether they merely represent alternate forms of verbalizing

the same rule. The draftsmen of Federal Rule 32, after which

the California discovery waiver rule was modeled, apparently

believed the latter to be the case. The obviability test was viewed

as merely incorporating the state waiver rules,'” even though those

rules generally purported to make waiver consequences hinge on a

distinction between formal and substantive objections rather than

the obviability of the objection. 4 In a few jurisdictions, the form

test is perhaps interpreted as the substantial equivalent of the obvierrors

and irregularities in the notice of taking the deposition, to the qualifications of

the deposition officer, and to the preparation or return of the deposition.

Sections 2016(e) and 2021 are substantially identical to FED. R. Civ. P. 26(e) and

32, respectively.

12 CAL. EvmD. CODE § 1291 (West 1966) provides:

Former testimony offered against party to former proceeding. (a) Evidence

of former testimony is not made inadmissible by the hearsay rule if

the declarant is unavailable as a witness and:

(1) The former testimony is offered against a person who offered it in

evidence in his own behalf on the former occasion or against the successor in

interest of such person; or

(2) The party against whom the former testimony is offered was a party

to the action or proceeding in which the testimony was given and had the right

and opportunity to cross-examine the declarant with an interest and motive

similar to that which he has at the hearing.

(b) The admissibility of former testimony under this section is subject

to the same limitations and objections as though the declarant were testifying

at the hearing, except that former testimony offered under this section is not

subject to:

(1) Objections to the form of the question which were not made at

the time the former testimony was given.

(2) Objections based on competency or privilege which did not exist

at the time the former testimony was given.

Former testimony is defined in CAL. EviD. CODE § 1290:

“‘Former testimony.’ As used in this article, ‘former testimony’ means

testimony given under oath in:

(a) Another action or in a former hearing or trial of the same action;

(b) A proceeding to determine a controversy conducted by or under the

supervision of an agency that has the power to determine such a controversy

and is an agency of the United States or a public entity in the United States;

(c) A deposition taken in compliance with law in another action; or

(d) An arbitration proceeding if the evidence of such former testimony

is a verbatim transcript thereof.”

13 4 J. MooRE, FEDERAL PRACTICE 32.01[21 [hereinafter cited as MOORE].

14 Former CAL. CODE CIV. PaO. § 2032 (West 1955). The same text is employed,

e.g., in the following statutes, in effect in the decade preceding the adoption of the

Federal Rules of Civil Procedure: ARiz. REV. CODE ANNOT. § 4440 (1928); KAN. GEN.

STAT. AmNor. § 60-2847 (1935); Mo. REV. STAT. § 1782 (1929); Omo GEN. CODE

ANor. § 11547 (1926); Wis. STAT. § 326.16 (1937). See generally Pike, The New

Federal Deposition-Discovery Procedure and the Rules of Evidence, 34 ILL. L. REv.

1, 8 nn.56-61 (1939) ; 1 WimooRE supra note 2, at § 18, at 326-30; McCoRMICK supra

note 1, at § 236; Annot. 159 A.L.R. 119 (1945).

— 15 UCLA L. Rev. 121 1967-1968

UCLA LAW REVIEW

ability standard. 5 But more commonly, the form test restricts waiver

to objections going to the “formal development of the testimony”-

those, for example, challenging a question as leading, overly broad

and inviting a narrative response, 16 compound or confusing, and in

some instances calling for an opinion, or those challenging an answer

as non-responsive or as an opinion. Excluded from the ambit of

waiver under this test are “substantive” objections, that is, those

going to the “relevancy, materiality or competency” of the testimony.’

7

In contrast, the test embodied in Federal Rule 32 (and in the

current California Discovery Act) embraces within the scope of

waiver not only “form” objections but all those the grounds of which

“might have been obviated or cured” had timely objection been

made at the deposition. If obviable, the designation “formal” or

“substantive” is of no consequence; the failure to object at the

deposition, when corrective measures might yet have been taken,

works a waiver.

The distinction between the two tests, however, is not merely

in the scope of waiver, but in the extent of judicial discretion in

making the determination. The form test can be viewed as an effort

to make the waiver determination a fairly automatic consequence

of the type of objection, leaving little to the discretion of the court.

For example, if no prior objection is made, objections to leading

questions are always waived; those to hearsay are never waived.

The approach of Federal Rule 32 on the other hand is to provide a

broad, functional standard, leaving a range of discretion to the court

to apply the test in light of the concrete circumstances of the case.

The virtues of this flexible approach have not always been

apparent to litigants. In California and elsewhere the tendency has

been to attempt to limit the scope of waiver by stipulating out of the

obviability test and providing instead that only objections to “form”

be waived as a consequence of the failure to object at the deposition.’

Lawyers for both discovering and non-discovering parties

15 See 1 WIGmORE, supra note 2, at § 18, at 326 n.5.

16 International Great N. Ry. Co. v. Prince, 77 Tex. 560, 565, 14 S.W. 171, 173

(1890). The cases in relation to leading questions, unresponsive answers and opinion

testimony are considered in text accompanying notes 37-85 infra.

17 See Pike, supra note 14, at 8.

18 The practice of stipulating out of the obviability test is widespread. Los Angeles

Trust Deed & Mortgage Exch. v. SEC, 264 F.2d 199, 212 (9th Cir. 1959). See Johnson

  1. Nicholson, 159 Cal. App. 2d 395, 324 P.2d 307 (1958). A suggested waiver provision

is found in D. LOUISELL, MODERN CALrFORNiA DIsCOvERY 105 (1963): “All objections to

the testimony except as to the form of the questions are reserved to the time of the

trial; however, objections to the form of the questions must first be made at the time

of taking the deposition in order to be available thereafter.” The use of this type stip-

[Vol. 15:118

— 15 UCLA L. Rev. 122 1967-1968

WAIVER OF OBJECTIONS

apparently wish to know “where they stand” and feel the obviability

test subjects them to an overly broad and ill-defined judicial

discretion. 9 This fear has led one commentator to call for the abolition

of the obviability test as one “creating unnecessary difficulties

at odds with practical experience.”20

The considerations relevant to waiver, however, are often too

complex to permit a fair solution in terms of a rigid distinction

between form and substance. And issues of fairness aside, even

under the form test the exercise of discretion is sometimes inevitable.

The terms “form” and “substance” are no more self-defining

here than in various other settings in which consequences turn on

the distinction. Nor does it solve the problem to equate substantive

objections with those going to “relevancy, materiality or competency”

of the testimony, and formal objections with those going to

the “formal development” of the testimony. The meaning of these

terms is not fixed. A complaint directed to a given evidentiary defect

can sometimes be effectively raised under a variety of conventional

headings, at which time the court must exercise choice as to how

to treat it for waiver purposes. The certainty valued by the supporters

of the form test is thus sometimes illusory, masking choices

the court must inevitably make.

In contrast, the obviability standard provides a rational, functional

basis for determining which objections are waived rather than

attempting conceptual distinctions between form and substance.

Furthermore, it recognizes rather than denies the role of judicial

discretion in making the decision. To the degree the obviability test

does enlarge the scope of discretion, it tends to expand the area of

the lawyer’s uncertainty. The relevant factors can, however, be

identified, and the results, it is believed, are reasonably predictable.

To put the waiver problem in proper perspective, it is useful

to view it from the tactical position of the attorney involved in litigation.

One can then judge both the extent of the lawyer’s need for

predictability as to the scope of waiver, and whether the obviability

test unduly obscures the issue.

  1. THE TACTICAL PROBLEM

The possibility that an objection to earlier testimony may be

waived has tactical implications at two points. First, former testiulation

is also recommended in Facher, Supreme Judicial Court Rule 15-Land Mark

in Massachusetts Procedure, 51 MAss. L.Q. 5, 32 (1966); 1 R. STANBURY, CALIFORNIA

TRIAL AND APPELLATE PRACTICE § 101 (1958).

19 E.g., 1 R. STANBURY, CALIFORNIA TRIAL AND APPELLATE PRACTICE § 101 (1958).

20 Facher, supra note 18, at 32.

1967]

— 15 UCLA L. Rev. 123 1967-1968

UCLA LAW REVIEW

mony or deposition testimony may be offered as evidence during the

course of a pending hearing. Each party in preparing for that

hearing will presumably consider the possibility that potential objections

to the earlier testimony have been waived. Secondly, the present

hearing in turn may become a source of testimony in the future.

Thus, the possibility that failure to object at the present hearing will

subsequently be deemed a waiver must be weighed. The likelihood

of such future use, however, varies from case to case and with it the

tactical significance of the waiver issue. To illustrate, consider a

trial, a preliminary hearing, and a deposition as potential sources

of testimony for a subsequent hearing.

  1. A Trial

There is at most a remote possibility that evidence given at a

trial will come to be offered as “former testimony” in a subsequent

hearing. It is unlikely a subsequent occasion will arise (such as a

new trial) at which testimony from the first trial would be relevant.

Attorneys in the trial situation therefore normally develop their

tactics without concern for the possibility that objections will be

deemed waived in the event testimony from that trial is offered as

former testimony in a subsequent proceeding.

  1. A Preliminary Examination Before a Magistrate

In contrast, there is a distinct possibility that a preliminary

examination will subsequently come to be used as a source of former

testimony. In the large majority of cases the outcome of that hearing

is an order committing the defendant for trial on a felony charge,21

followed by a trial. Counsel must therefore keep in mind the possibility

that if a witness who testified at the preliminary hearing

subsequently becomes unavailable his earlier testimony may be

admissible at the trial under Evidence Code section 1291.

This risk, to be sure, is not the only consideration bearing on

the attorney’s decision whether or not to object at the preliminary

examination. Other relevant considerations include the following:

Arguing against objecting is the fact that to do so might prematurely

“tip his hand” as to his intended tactics or as to weaknesses in his

opponent’s case. Or he may wish to hear the witness out in the

interest of discovery regardless of the inadmissibility of the testi-

21 In 1965, 84.9% of the felony filings in superior court were by way of preliminary

hearing compared to 3.6% by way of grand jury indictment. BUREAU Op CRIMINAL

STATISTICS, CRIME AND DELINQUENCY IN CALIFORNIA 66 (1965). Of 55,107 felony

complaints filed before the magistrate, only 14,355 were dismissed prior to superior

court prosecution. Id. at 47, 56.

[Vol. 15: 118

— 15 UCLA L. Rev. 124 1967-1968

WAIVER OF OBJECTIONS

mony. On the other hand, he may object in order to exclude certain

evidence, hoping thereby to secure a discharge before the magistrate.

Or (in the case of the defendant) he may object in order to preserve

error in the event he is held to answer and wishes to challenge the

legality of his commitment under Penal Code section 995.22

  1. The Civil Deposition

A primary purpose of a deposition is to procure evidence for a

subsequent trial. Here the objection has but one technical function.

It preserves the right that may otherwise be lost to object to defects,

if and when the testimony is subsequently offered at trial. It performs

no other function comparable to that of the objection at the

preliminary hearing, nor for that matter, normally associated with

objections. Nowhere, therefore, does the possibility of waiver take

on greater importance as a tactical consideration than here, since

it is the only legally relevant factor in determining whether or not

to object.

To illustrate: a) An objection does not prevent the interrogating

party from getting his answer at the deposition even if the

objection is sound from an evidentiary viewpoint.2 3 Code of Civil

Procedure section 2016(b) provides that the deponent “may be exarnined

regarding any matter, not privileged, which is relevant to the

subject matter” of the action. It requires no argument here that the

scope of examination afforded under this standard is broader than

that at trial.24 Because of the early reluctance of some courts to give

full recognition to the breadth of this provision, the following language

was added to the Federal Rules and incorporated in the California

Discovery Act:

It is not ground for objection that the testimony will be inadmissible at

the trial if the testimony sought appears reasonably calculated to lead

to the discovery of admissible evidence. 25

22 The failure to make timely objection during the preliminary hearing waives it

upon such review. People v. Robinson, 49 Cal. 2d 186, 316 P.2d 1 (1957).

23 E.g., Awani v. Pub. Nat’l. Bank of New York, 12 F.R.D. 263, 265 (S.D.N.V.

1952).

24 E.g., Greyhound Corp. v. Superior Court, 56 Cal. 2d 355, 390-91, 364 P.2d 266,

284, 15 Cal. Rptr. 90, 108 (1961). The scope of the discovery is reviewed in 4 MOORE.

supra note 13, at ff 26:15-.25[5.-2].

25 FED. R. Civ. P. 26(b); CAL. CODE Crv. PRO. § 2016(b) (West Supp. 1966).

For a review of the cases leading up to this amendment see Supreme Court Advisory

Committee Note of 1946 to Amended Subdivision (b) in MOORE, supra note 13 at

26.01[7]. Taken literally, the language quoted above is misleading, since it is

“ground for objection that the testimony will be inadmissible.” Indeed, as already

noted, the objection may be barred at trial if not made at the deposition, a fact made

explicit in FED. R. Civ. P. 30(c): “Evidence objected to shall be taken subject to the

objections.” The identical provision is found in CAL. CODE Cirv. PRO. § 2019(c) (West

Supp. 1966).

1967]

— 15 UCLA L. Rev. 125 1967-1968

UCLA LAW REVIEW

This does not mean the deponent’s duty to answer is limitless. If the

examiner attempts to invade privileged areas, seeks information not

“relevant to the subject matter,”.. or pursues tactics unfairly burdensome

to the deponent, protective devices are available. But the bare

“objection” is not such a device. The complaining witness or party

must proceed in other ways.

  1. b) The objection at deposition does not trigger an advance

ruling on the admissibility of the testimony. The deposition is normally

conducted before a notary public lacking the power to pass on

objections.2s No provision is made for pre-trial motions to suppress

evidence as was commonly the case under the deposition practice of

many states.29 Nor do the rules contemplate any other regular channel

for pre-trial determination of evidentiary questions.80 The normal

procedure is that evidentiary objections will be resolved when the

testimony is offered at trial.”‘

  1. c) The objection at the deposition does not necessarily constitute

an objection if and when the testimony is offered at trial. To be

26 CAL. CODE CIV. PRO. § 2016(b) (West Supp. 1966).

27 He may request a protective order from the court in advance of the deposition

under CAL. CODE CIV. PRO. § 2019(b) (1) (West Supp. 1966), move for a termination of

the deposition or a limitation upon its scope during the taking of the deposition under

CAL. CODE CIv. PRO. § 2019(d) (West Supp. 1966), or refuse to answer the question

and argue its invalidity defensively if the discovering party seeks relief under CAL. CODE

CIV. PRO. § 2034 (West Supp. 1966).

28 CAL. CODE CIV. PRO. § 2018(a). See Estate of Martin v. Savings Union Bank

& Trust Co., 170 Cal. 657, 665, 151 P. 138, 141 (1915) ; Burns v. Superior Court, 140

Cal. 1, 13, 73 P. 597, 602 (1903).

29 E.g., Webb v. Pacific Mut. Life Ins. Co., 348 IllA. pp. 411, 109 N.E.2d 258

(1952). CAL. CODE CIV. PRO. § 2021(d) (West Supp. 1966) provides for a motion to

suppress only with respect to errors and irregularities in the mechanics of the completion

and return of the deposition.

30 This is the case, in contrast, under Illinois procedure. ILL. ANNOr. STAT. ch. 110

  • 101.19-9(3)(d) (1956). In appropriate circumstances, however, such rulings could

be made by pretrial conference order, or otherwise on motion. See Sacramento & San

Joaquin Drainage Dist. v. Reed, 215 Cal. App. 2d 60, 31 Cal. Rptr. 754 (1963)

(“motion to exclude” anticipating evidence at the outset of a trial, while “not a conventional

procedure . . .was well conceived under the circumstances.”). Contra, e.g.,

Bradford v. Birmingham Elec. Co., 227 Ala. 285, 149 So. 729 (1933) (trial court’s

refusal to make such a ruling upheld since such a practice “would be wholly unjustified

by, and in violation of, all precedent.”). See generally Comment, The Evidence Ruling

at Pretrial in the Federal Courts, 54 CALIF. L. REv. 1016 (1966).

81 The need for judicial intervention in the pretrial stages of the case are thus

soundly minimized. The vast majority of cases are settled without trial. Even if the

case goes to trial it is conjectural whether the testimony in question will be offered.

If offered, it may not be objected to. In any event, many pretrial evidentiary rulings

would of necessity be tentative since the admissibility would depend upon the state

of the record at the time the challenged testimony was offered-unknowable to the

court in advance of the trial. Such pretrial ruling would therefore tend to call forth

pointless expenditure of judicial energy.

[Vol. 15:118

— 15 UCLA L. Rev. 126 1967-1968

WAIVER OF OBJECTIONS

certain that it is properly raised, the objection must be renewed at

trial.

32

Thus, the evidentiary objection at deposition does not prevent

an interrogating attorney from getting the testimony he seeks. It

does not produce an immediate (or pre-trial) ruling on admissibility.

It does not constitute an objection if and when the deposition testimony

is offered at trial. It serves but one legal function: with

respect to certain objections, it is an indispensable foundation for a

later objection at trial.8

Does the possibility of waiver really generate a tactical problem?

Could the non-interrogating attorney cope with the risk of

waiver by objecting indiscriminately, thereby assuring that all valid

objections were preserved for trial? The defect of Such a tactic is

that it purchases a hedge against a waiver at too high a price. If he

objects unnecessarily he needlessly educates his opponent. If he

remains silent his adversary may proceed to trial relying on important

deposition evidence only to be confronted with an unanticipated

objection at trial. It may then be too late for him to cure the error,

too late to find substitute testimony, too late to alter his theory of

the case to eliminate dependency on it. The party opposing the testimony

should retain this tactical advantage if he can. To do so

requires a more discriminating tactic than automatic objection. Furthermore,

the practice of cluttering the record of a deposition with

unnecessary objections interferes with its orderly conduct and has

been condemned.84 On the other hand, by keeping silent he incurs

the risk that he will lose the objection through waiver. Tactical

choice may then become a subtle problem. The better the attorney

understands the waiver doctrine the better his opportunity to exercize

sound tactical judgment.

  1. THE “FORM” OBJECTIONS

Three objections are frequently classified as formal: those

addressed to leading questions, non-responsive answers, and opinion

testimony. It is necessary to consider these because the form test

32 Parrott v. Byers, 40 Cal. 614, 626 (1871) ; 1 Wiomoaa, supra note 2, at § 18,

at 330. Cf. People v. Graves, 84 Cal. App. 2d 531, 535, 191 P.2d 32, 34 (1948)

(objection to testimony at preliminary hearing in criminal case deemed waived when

not renewed at trial).

33 If it is to serve even this function, the objection should be promptly presented

at the deposition, CAL. CODE CIV. Pao. § 2021(b) (2) (West Supp. 1966), and sufficiently

specific to provide the examining party the opportunity to meet the objection.

34 Detective Comics, Inc. v. Fawcett Publications, Inc., 4 F.R.D. 237,1 239

(S.D.N.Y. 1944).

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remains the exclusive basis for the waiver determination under

Evidence Code section 1291.85 Furthermore, it is helpful in illustrating

the relationship between the form and obviability tests.

Before proceeding, it is useful to draw a distinction with regard

to the party making the objection to the prior testimony. Objection

may come either from the party who himself elicited that testimony

or from his adversary, the “non-examinating party.” 6 We shall consider

the waiver issue first on the assumption that the proponent of

the prior testimony was originally the examining party (the objection

then coming from the non-examining party); and then on the

assumption that the proponent was the non-examining party (the

objection then coming from the party who himself originally elicited

the testimony).

  1. Leading Questions

Assume a leading question is asked at a deposition, preliminary

hearing, or trial, no objection is made, the testimony is subsequently

offered at trial, and that then, for the first time, objection is made.

Such objection is almost universally held waived under either the

form or obviability test.3 7 Perhaps because the result seems so eminently

sound, the reasons given are often rather sketchy, running in

terms of the curability of the defect, sometimes coupled with the

proposition that it would work surprise, injustice, or even fraud to

permit the objection to be first asserted at trial.

The argument for holding this objection subject to waiver

might be elaborated as follows:

85 Waiver is, however, there restricted to the “form of the question.” For a

consideration of the soundness of this limitation, see text Part V infra.

86 “Non-examining” does not mean the party conducted no portion of the prior

examination. He may have conducted either the direct or the cross-examination, but

so long as the testimony offered was elicited by some other party, he is for present

purposes the “non-examining party.”

87 Order of United Comm’l Travelers v. Tripp, 63 F.2d 37, 39 (10th Cir. 1933);

Kyle v. Craig, 125 Cal. 107, 114-15, 57 P. 791, 794 (1899) ; Hamilton v. Pulaski

County, 86 Ga. App. 705, 709-10, 72 S.E.2d 487, 492 (1952); Walsh v. Agnew, 12 Mo.

343, 347 (1849); Glasgow v. Ridgeley, 11 Mo. 26, 30 (1847); Whipple v. Stevens, 22

N.H. 219, 224-25 (1850) ; Chambers v. Hunt, 22 N.J.L. 552, 562 (1849) ; Mighaccio v.

  1. & S. Angolano, Inc., 87 R.I. 194, 200, 139 A.2d 383, 387 (1958); Texas & P. Ry.

Co. v. Mix, 193 S.W.2d 542, 550 (Tex. Civ. App. 1946). Contra, Craddock v.

Craddock, 13 Ky. 59 (1823) (objection to leading question not waived because the

objection could in any event not be ruled upon during the deposition), criticized in

1 WIO mORE, supra note 1, at § 18, at 328 n.8.

Decided under FED. R. Civ. P. 32(c): Elyria-Lorain Broadcasting Co. v. Lorain

Journal Co., 298 F.2d 356, 360 (6th Cir. 1961); Houser v. Snap-On-Tools Corp.,

202 F. Supp. 181, 187-88 (D. Md. 1962); Nutterville v. McLam, 84 Idaho 36, 41, 367

P.2d 576, 578-79 (1961) (state equivalent of the federal rule).

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The rule against leading questions functions not as an absolute

or substantive bar to testimony, but expresses rather a rule of preference

in the manner of examining a witness. 8 The rule permits the

court to compel the examining party to seek a way to formulate a

question involving a lesser risk of improper testimony. The risk

generated by a leading question is that the witness may acquiesce in

false suggestion. Similarly, in the case of an overly broad question,

the danger is that irrelevant, hearsay, or otherwise objectionable

testimony will be forthcoming, against which the opposing party is

denied his usual opportunity to object due to the unpredictable tenor

of the answer. He is left only with the unsatisfactory remedy of a

motion to strike. And in the case of the compound question there is

a substantial risk of a confused answer. In each of these cases the

court might properly sustain an objection though the question was

only mildly objectionable. The opponent would then be protected

against possible prejudice at little expense to the proponent who

remains free to elicit the testimony through more appropriately

phrased questions. This is a proper function of the court’s broad

scope of discretion.89

This view of the leading question objection as a flexible rule of

preference is supported by the fact that a form of question otherwise

clearly improper may in the court’s discretion be permitted because

of necessity, as when the witness is a child4″ (even though the risk

of such a witness being led is at its highest), is otherwise handicapped,

4 or has exhausted his recollection.42

The preference may become irrelevant when the objection is not

made at the time the witness is being examined but, instead, is first

noted when the deposition testimony or former testimony is being

offered in evidence.

First, the court then has before it not only the question, but

the answer as well. While the question standing alone may have been

objectionable, the anticipated risk may not have materialized.

Though the question was leading, the witness may not have permitted

himself to be led.43 The overly broad question may fortuitously

38 See generally McCoRmicK, supra note 1, at §§ 5-6.

89 E.g., California Wine Ass’n. v. Commercial Union Fire Ins. Co., 159 Cal. 49,

55, 112 P. 858, 861 (1910); People v. Harlan, 133 Cal. 16, 19, 65 P. 9, 10 (1901);

People v. Sparks, 44 Cal. App. 2d 748, 112 P.2d 974 (1941).

40 People v. Hinrich, 53 Cal. App. 186, 187, 199 P. 1058 (1921).

41 Estate of Cesare v. Cesare 130 Cal. App. 2d 557, 568-69, 279 P.2d 607, 613-14

(1955) (witness was “vague, uncertain, confused in his testimony”).

42 3 WIcMORE, supra note 2, at § 777, at 134.

43 McLenaghan v. Billow, 161 F. Supp. 835, 837 (D. Del.), aff’d, 260 F.2d 360

(3d Cir. 1958); Kemp v. Canal Zone, 167 F.2d 938, 940-41 (5th Cir. 1948).

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have yielded only admissible testimony.” The multiple and confusing

question may, contrary to expectation, have produced an unconfused

answer. To exclude such testimony would be to punish the

interrogating party for asking a potentially harmful question though

it resulted in no harm. The objection should then fall either on the

merits or by way of waiver. 45

Second, in the usual case the admissibility of testimony from

the prior proceeding is conditioned on the witness’s unavailability

at the present hearing. 6 Since he is unavailable the issue is no longer

whether there might have been a better way to elicit the testimony

but whether its defects warrant total exclusion of now irreplaceable

testimony. This would be a legitimate inquiry even had an objection

previously been made. In balancing the infirmities in the testimony

against the harm from total exclusion the court might reasonably

conclude that the testimony, if not as good as it might have been,

nonetheless did not warrant exclusion. 47

One California case has in fact expressed a view which if

accepted would be tantamount to abolishing the leading question

objection:

… [I]t is well understood that answers to leading questions do not

deserve, nor are they accorded, the same credence [by the factfinder]

as is given by answers to questions not in that category. It is purely

a matter of the weight of such testimony, and the objection to such

questions relates more to the weight of the evidence to be received,

rather than to its admissibility. 48

One need not go so far, as indeed the courts have not, to recognize

that the witness’s unavailability at the present proceeding is an

44 Call v. Linn, 112 Ore. 1, 10, 228 P. 127, 130 (1924).

45 It is not uncommon to find decisions resting concurrently on the grounds that

the objection was waived and without merit. E.g., Cordle v. Allied Chem. Corp., 309

F.2d 821, 826 (6th Cir. 1962) (qualifications of a physician); Illinois Cent. R.R. v.

Foulks, 191 Ill. 57, 74, 60 N.E. 890, 896 (1901) (witness asked the condition of a

carload of potatoes, answered it was “in bad condition”) ; Webb v. Pacific Mut. Life

Ins. Co., 348 Ill. App. 411, 417, 109 N.E.2d 258, 260 (1952) (objection to secondary

evidence) ; Cathcart v. Rogers, 115 Iowa 30, 87 N.W. 738 (1901) (interrogatory asked

owner of cattle, a farmer, their value); Walsh v. Agnew, 12 Mo. 343, 347 (1849)

(“[ble is obviously an unwilling witness, and the officer before whom his deposition

was taken would have acted properly in suffering leading questions to be put to this

witness, and overruling objections to that effect, if any had been made. None were

however made at that time. It is too late to except to these questions on the

trial; . . .”). See also Woodman v. Coolbroth, 7 Me. 181, 183-84 (1831).

46 This is a precondition for use of all former testimony under CAL. Evm. CODE

  • 1291 (West 1966), and for deposition testimony under CAL. CODE Cxv. PRO. § 2016(d)

(West Supp. 1966), except in the case of a deposition of an adverse party or “under

exceptional circumstances . . . in the interests of justice.”

47 Kemp v. Canal Zone, 167 F.2d 938, 940-41 (5th Cir. 1948).

48 Imperial Water Co. No. 1 v. Imperial Irrigation Dist., 62 Cal. App. 286, 292-93,

217 P. 88, 90 (1923).

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important consideration in ruling on the objection. It would be pointless

to exclude needed testimony by mechanical application of a rule

whose proper function is to regulate the mode of questioning witnesses

on the stand. It would be all the more pointless where no

prior objection was made. For had the objection been asserted at

the prior proceeding, the question could have been recast in neutral

form. Had it been so recast, it is likely that substantially the same

testimony would have been forthcoming. 49 Timely objections would

have enabled the presiding officer at the prior proceeding to nudge

the interrogator into perfecting the testimony through his rulings on

the objections. Or, if the proceeding were a deposition at which no

judicial officer were present, the objection would have at least indicated

the opponent’s displeasure and given the examiner an opportunity

to correct the defect.

Thus two basic considerations warrant the requirement of a

prior objection in the case of leading questions. The testimony despite

its defect is probably of sufficient value to be worthy of consideration

by the factfinder. Moreover, the defect could probably

have been remedied had the objection been made at the earlier

proceeding. If such testimony is to be excluded it seems eminently

fair that the burden should be cast upon the opponent to first state

his objection during the prior proceeding while corrective steps can

still be taken. This is especially true when one considers the illdefined

nature of the line between leading and non-leading questions.

The resulting uncertainty is merely a reflection of the broad discretion

of the court in controlling the form of the questioning. Under

such circumstances the opponent of the evidence should not be permitted

“to lie by and permit his adversary to take evidence, without

objection, and when it is offered to be read, then for the first time

to raise mere technical objections, calculated to produce costs and

delay.”50 Or, to cast the argument in functional rather than moral

terms, the waiver rule performs the useful function of motivating the

opponent to object and thereby help eliminate frequently minor,

“technical,” obviable defects from testimony.

  1. The Non-Responsive Answer

Before considering the applicability of the waiver rule to this

objection, it is necessary to consider the current status of the objection

itself. Wigmore regarded the rule for striking unresponsive

49 This, it should be noted, is not a certainty, only a likelihood. It is in fact

precisely the lack of certainty which may motivate the lawyer to ask the leading

question.

50 Goodrich v. Hanson, 33 IM. 498, 509 (1864).

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answers “novel and unwholesome.”51 So long as the answer furnished

admissible evidence, there was no reason to exclude it merely because

it was not specifically asked for. Nor did he recognize any distinction

in standing; neither the interrogating party nor his opponent

should be able to raise the objection if the answer produced admissible

testimony.

California Evidence Code section 766, on the other hand, recognizes

an objection to non-responsive answers at the instance of either

the examining party or his opponent, and without regard to whether

the answer would have been admissible had it been given responsively.

The rule first took statutory form in 1935,52 but California

cases both before and after its passage have not always displayed

great enthusiasm for it.5” Assume, however, the statutory rule is taken

at face value and objection is made on this ground at trial to testimony

offered from a prior proceeding. The objection should without

doubt be held one of form (or obviable) and waived. This has been

the most common result in decisions of various jurisdictions regardless

of which party raises the objection.5 4 Every consideration supporting

this result in the case of leading questions bears with special

force here. The testimony is sound except for the fact that it was

given in response to the wrong question. Had earlier objection been

made, the examiner, if he wished to retain the answer, could have reformulated

the question to eliminate the objection. Likewise, had the

non-examining party wished to preserve the answer, he could have

51 3 WiGuoRE, supra note 2, at § 785, at 160.

52 Cal. Stat. 394, ch. 57, § 1 (1935).

53 See Estate of Wirt v. Cox, 124 Cal. App. 7, 10, 12 P.2d 95, 96 (1932) (only the

interrogating party can object that answer is non-responsive). See generally WrrxiN,

CALiFORN A EVIDENCE § 1165 (1966).

54 Objection by non-interrogating party held waived: Finn v. J. H. Rose Truck

Lines, 1 Ariz. App. 27, 32, 398 P.2d 935, 940 (1965) (decided under rule patterned

after FED. R. Civ. P. 32); Dillingham v. Currie, 92 S.W.2d 1122, 1126 (Tex. Civ. App.

1936). Objection by interrogating party held waived: Matthews v. J. H. Luers Drug

Co., 110 Iowa 231, 81 N.W. 464 (1900); Sioux City & Pac. R.R. v. Finlayson, 16 Neb.

578, 587, 20 N.W. 860, 864 (1884). Whether objecting party was interrogator or not,

not stated: McCreary v. Turk, 29 Ala. 244 (1856); Chicago, R.I. & Ga. Ry. v. Harris,

28 S.W.2d 611 (Tex. Civ. App. 1930). Objection held not waived though first asserted at

trial: Estate of Short v. Bank of America, 7 Cal. App. 2d. 512, 518-19, 47 P.2d 555, 558

(1935); Ernst v. Estey Wire-Works Co., 21 Misc. 68, 46 N.Y.S. 918 (1897). The

result in the last case may be justifiable because of special circumstances. The deposition

was on written interrogatories. If the witness departs from the question asked,

both examiner and cross-examiner are deprived of the right to ask additional questions

that might have shed light on the testimony volunteered. See 5 WIGmORE, supra note 2,

at § 1392, at 115. Even in this situation, timely objection would have enabled the proponent

to cure the defect by retaking the deposition. Thus in a number of cases cited

above, the waiver rule applies to written interrogatories and requires notice or a

motion to quash prior to trial if the objection is to be preserved. E.g., Matthews v.

  1. H. Luers Drug Co., supra.

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pursued the point on cross-examination. In short, the objection is

obviable.

Indeed it is this very obviability which suggests the futility of

the objection even when raised in the case of a witness testifying

viva voce. Yet it may be thought there to serve several useful functions:

it better enables the examining party to develop the evidence

in the manner he sees fit by pressing the witness to answer the

examiner’s questions, not those the witness might prefer to answer.

It disciplines the witness to answer future questions responsively,

though this end could more efficiently be achieved by admonishing

the witness than by striking valid testimony. But even these limited

purposes are not served when objection is interposed to testimony

offered from a prior proceeding. To exclude otherwise valid testimony

on this objection is a doubtful procedure even if prior objection

has been made, and wholly indefensible if it has not.

However, the non-responsive answer may not be “otherwise

valid.” It may, for example, contain objectionable opinion testimony

or hearsay. If so, the objection takes on a different tenor. Its point

then is not merely that the answer was uncalled for, but that its

content is defective. Its non-responsiveness is not offered as sufficient

cause for striking, but merely as excuse for the attorney’s failure to

state his objection before the answer was given. It anticipates, in

short, the charge of untimeliness. Whether an objection raising these

additional grounds should be allowed for the first time at trial should

depend on the nature of the objection. If directed to the mere form

of the answer (i.e. an obviable defect) it should be deemed waived

for the same reasons that generally support the waiver of such objections.

If based on incurable grounds it should be held not waived.

This approach was not followed in Estate of Short v. Bank of

America National Trust and Savings Association,5 a California

case decided under the pre-1958 discovery provisions. It was there

held that an objection to an unresponsive answer from a deposition

was not waived, because the then applicable statutory provision

limited waiver to objections to the form of the interrogatory only.

The scope of waiver is not so limited under the present Discovery

Act and the opposite result would almost surely be reached today.

The same unjustifiable limitation remains, however, in Evidence

Code section 1291 governing former testimony.

Here, as in the case of the leading question objection, if the

“form” test operates satisfactorily it is only because in every case

55 7 Cal. App. 2d 512, 518-19, 47 P.2d 555, 558 (1935). See also Martyn v. Leslie,

137 Cal. App. 2d 41, 58, 290 P.2d 58, 68 (1955).

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where the objection is merely to the unresponsiveness of the question

the defect is one which could have been obviated had timely

objection been interposed at the original hearing.5″

  1. Objections to Non-Expert Opinion Testimony

The problem of determining the waiver of opinion objections

is more complex than either of the cases considered above. Such

objections have been flatly described by some as formal5″ and by

others as substantive” for waiver purposes. The fact is, however,

they have not been dealt with uniformly by the court s but sometimes

as formal59 and other times as substantive.6″ These variations in

treatment are attributable partly to different judicial attitudes toward

the “opinion rule” and partly to differences in the fact patterns of

the cases. In any event, the mere fact that an objection invokes the

opinion rule does not automatically solve the waiver issue. It is

merely a starting point for analysis.

Lay witnesses are today frequently permitted to testify in

opinion form, provided it is “[r] ationally based on the perception of

the witness” and “[h]elpful to a clear understanding of his testimony.”‘”

Suppose prior testimony is objected to under this rule on

the ground that it is in a conclusionary form not helpful to the

factfinder, i.e., that it should have been given in terms of perceived

“facts” rather than as a summarizing opinion (“inference” or “conclusion”).

An objection so interpreted was presented in Cozine v.

56 A similar coincidence in results would presumably be arrived at under both

tests in connection with objections to questions which allowed a witness to testify at

one deposition by incorporating by reference answers given at a previous deposition.

See Batelli v. Kagan & Gaines Co., 236 F.2d 167, 170 (9th Cir. 1956) (objections held

waived under FED. R. Civ. P. 32).

57 J. Duff, Admitting and Using Documentary Evidence and Depositions, CALIFORNIA

CIVIL PROCEDURE Dugina TRIAL § 11.68 (Cal. Cont. Educ. Bar 1960).

58 Pike, supra note 14, at 8.

59 Carlisle v. Humes, 111 Ala. 672, 20 So. 462 (1895); R. H. Macy & Co. v.

Robinson, 183 Cal. App. 2d 182, 190-91, 6 Cal. Rptr. 703, 707-09 (1960); Brown v.

Ball, 123 Cal. App. 758, 767, 12 P.2d 28, 31 (1932) ; Illinois Cent. R.R. v. Foulks, 191

Ill. 57, 74, 60 N.E. 890, 896 (1901); Cathcart v. Rogers, 115 Iowa 30, 87 N.W. 738

(1901). See Cozine v. Hawaiian Catamaran, Ltd., 49 Hawaii 77, 111-14, 412 P.2d 669,

690-92 (1966) (decided under state counterpart of FED. R. Civ. P. 32).

60 Rivera v. Hancock, 79 Ariz. 199, 206-07, 286 P.2d 199, 205 (1955) (testimony

held properly excluded, but without reference to form-substance distinction) ; Madera

Ry. v. Raymond Granite Co., 3 Cal. App. 668, 686, 87 P. 27, 34 (1906); Haddow v.

St. Louis Pub. Serv. Co., 38 S.W.2d 284, 287 (Mo. App. 1931); National Bankers Life

Ins. Co. v. Rosson, 400 S.W.2d 366, 370-71 (Tex. Civ. App. 1966). See South Atlantic

S.S. Co. v. Munkacsy, 37 Del. 580,,593-96, 187 A. 600, 606-07, cert. denied, 299 U.S. 607

(1936) (testimony held properly excluded, but without reference to form-substance

distinction).

61 CAL. EVID. CODE § 800 (West 1966).

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Hawaiian Catamaran, Ltd.62 The plaintiff’s husband testified at deposition

about his wife’s physical and mental condition resulting

from an accident in these terms:

“she was taking sedatives, she was taking drugs through most of the

time; . . . her general health and rest was completely abnormal;

  • . . emotionally she was completely upset and not herself; . . . it

became necessary that we use household help almost continuously.” 68

Objection was first made when the testimony was offered at

trial on the ground that it was hearsay and incompetent. The court

held the objection waived as one of form under Federal Rule 3 2 (c)2,

the provision after which Code of Civil Procedure section 2021(c)

is patterned. This result is easily justified on the same grounds that

support the waiver of objections to leading questions. The testimony,

even assuming it formally objectionable, has substantial utility to

the factfinder.64 It is indeed quite possible that under California law

the testimony complained of would have passed muster as it stood.65

But even if it were in objectionable form the opinion rule should

function not as an absolute bar but as a flexible rule of preference,

enforced at the time of the examination, for a less conclusionary,

more specific form of testimony.6 Since the witness is now unavailable,

the court has only the alternatives of accepting or rejecting

the testimony in its present form. Had objection been made at the

original proceeding, the form of the question could have been

altered and the defect probably cured.

Finally, but for the waiver rule, the objection would operate as

a trap for the examining party who had had to decide on the spur

of the moment whether testimony was “fact” or “opinion.” The distinction

between the two is one of degree rather than kind, of shades

of grey rather than blacks or whites.6 7 “There is no conceivable

statement however specific, detailed and ‘factual,’ that is not in some

measure the product of inference and reflection as well as observa-

62 49 Hawaii 77, 412 P.2d 669 (1966).

63 Id. at 112, 412 P.2d at 690-91.

64 If the testimony were indeed helpful (though not strictly necessary), such an

objection might be overruled on the merits under CAL. EviD. CODE § 800(b) (West

1966), even if it were not waived. See Nolan v. Nolan, 155 Cal. 476, 480-81, 101 P. 520,

522 (1909). Other decisions appear to condition admissibility of an opinion upon its

strict necessity. See, e.g., Holland v. Zolner, 102 Cal. 633, 637-39, 36 P. 930, 931-32

(1894). See also Chadbourn, A Study Relating to the Uniform Rules of Evidence-

Expert and Other Opinion Testimony, in CALIFORNIA LAW REvISION CommIssioN,

TENTATIVE RECOMIENDATION AND A STUDY RELATING TO TiE UNIFORM RULES OF

EVIDENCE, art. 7, 931-35 (March 1964).

65 See Robinson v. Exempt Fire Co., 103 Cal. 1, 5, 36 P. 955, 956 (1894); Holland

  1. Zollner, 102 Cal. 633, 637-39, 36 P. 930, 931-32 (1894).

66 See MCCORMICK, supra note 1 at § 11, at 22-23.

67 Finn v. J. H. Rose Truck Lines, 1 Ariz. App. 27, 33, 398 P.2d 935, 941 (1965).

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tion and memory.””8 Where the line will be drawn in a particular

case is therefore often unpredictable. The examiner should not be

required to shoulder the burden of this uncertainty, unaided by

objections from his adversary.69 The adversary’s right, in short, is

to have formal (obviable) defects corrected, not to have useful

testimony excluded.

In sharp contrast to the approach in Cozine is the mechanistic

treatment of a similar problem in South Atlantic S. S. Co. v. Munkacsy,

a Jones Act case.70 The plaintiff had injured himself falling

to the deck while working on ship’s ventilator. The boatswain who

assigned the plaintiff to the job and who superintended the work was

asked the following questions during a deposition:

Do you consider the weather on this particular day smooth enough to

make it safe to do this job? . . . Knowing the weather . . . as you

remember it on that day, can a man ordinarily support himself by

putting his hands on the ventilator and bracing his body on the bulkhead?

And would that make it a perfectly safe thing to do?71

No objection was made before trial, and court rule provided the

objection was therefore waived, apparently without regard to whether

the objection was designated formal or substantive. The trial court

nonetheless entertained an objection, and excluded the testimony.

The reviewing court recognized that the authorities dealing with the

admissibility of evidence in this form were “in confusion,’ 72 a fact

tending to underscore the importance of timely objection during the

deposition. It reasoned however that the testimony was “not evidence

at all,”78 and upheld its exclusion since the facts could have

been placed before the jury in non-conclusionary form. The proponent

was thus denied important testimony, on the application of

an admittedly unsettled rule of evidence, for defects which could

easily have been cured, despite the fact that under court rule the

objection had already been waived.

The criticism of this result is not intended to suggest that every

68 McCo~micK, supra note 1, at § 11, at 22.

69 For those who may view such a requirement as an incursion on the adversary

process, it should be noted that this is a normal function of the objection at trial,

Jackson v. Chesapeake & Ohio Ry., 179 Va. 642, 651, 20 S.E.2d 489, 492-93 (1942), and

is a principal justification for the insistence upon specific, rather than general, objections.

An interesting parallel to the waiver rule at hand is found in the proposition that

an otherwise inadequate general objection at trial is sufficient where the ground of

the objection is one which could not in any event have been obviated. Louisville &

N.R. Co. v. Scott, 232 Ala. 284, 289, 167 So. 572, 577 (1935) ; Smith v. Fine, 351 Mo.

1179, 1197-98, 175 S.W.2d 761, 768 (1943).

70 37 Del. 580, 187 A. 600 (1936), cert. denied, 299 U.S. 607 (1936).

71 Id. at 586-87, 187 A. at 603.

72 Id. at 590, 187 A. at 604.

73 Id. at 595, 187 A. at 606.

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opinion objection should be held waived if not asserted prior to

trial. In Rivera v. Hancock,74 the deponent who had witnessed an

automobile accident was asked at what speed the defendant was

going.

  1. Hard to estimate actual speed, but I would say roughly 30 miles an

hour. Awful fast to be coming into an intersection.75

The italicized portion was excluded by the court as a conclusion,

though no prior objection had been made at the deposition. The

result is obviously sound. The witness’s total fund of knowledge concerning

the vehicle’s speed had been exhausted with the first part

of his answer. The portion stricken added nothing but a bit of gratuitous

advice to the court as to how to decide the case. Moreover,

the worthless part of the testimony was easily severed from the

valid part. The testimony was not only defective, but unnecessary

and hence properly excluded.

A more interesting and difficult case would have arisen had

the witness’s entire answer to the question as to speed consisted only

of the excluded portion: “Awful fast to be coming into an intersection.”

How then would the defect be characterized? As one of form,

as in Cozine, on the theory that the testimony was merely the witness’s

shorthand form of expressing his observations?76 Or as one

of substance, on the theory that it represented only his totally irrelevant

value judgment? The fact is, of course, that it is difficult to

know (without additional examination of the no longer available

witness) whether it is the one, the other, or a combination of

both-and, if so, in what combination. The conclusionary nature

of the testimony obscures whether it is based on perceived facts,

hunch, hearsay, or value judgment.

Difficult as the determination may be, the court must resolve

the issue as best it can on the facts before it. This is precisely the

kind of preliminary or foundational fact determination as to the

witness’s personal knowledge the court is required to make under

Evidence Code section 403 in ruling on admissibility.77 But the

issue thus presented is simply whether the grounds of objection were

74 79 Ariz. 199, 286 P.2d 199 (1955).

75 Id. at 206, 286 P.2d at 205.

76 Such might well be the result under California law. See Dawson v. San Diego

Elec. Ry. Co., 82 Cal. App. 141, 151, 255 P. 215, 218-19 (1927) (witness permitted to

testify streetcar was traveling at a speed “faster than the ordinary rate.”). But cf.

Kline v. Santa Barbara Consol. Ry. Co., 150 Cal. 741, 749, 90 P. 125, 128 (1907)

(error, but not prejudicial, to permit testimony that a car was moving at “an unpardonable

high rate of speed.”).

77 The difficulty of making the determination in some cases is shown in Kingsbury

  1. Moses, 45 N.H. 222, 225-26 (1864).

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obviable. For if the court concludes the testimony is merely an

excessively conclusionary form for conveying “facts” actually perceived

by the witness, then the defect could have been cured by

reformulating the question and can appropriately be classified as

formal for waiver purposes. If the conclusion is that the testimony

violates the requirement of personal knowledge, then the defect

would be incurable and properly classified as substantive. Either is

a possible result under an opinion objection. As a matter of convention,

if not sound analysis, the opinion objection is double-barreled,

often expressly raising, or taken by the court to raise, either or both

of the above complaints 7

1 Whether the objection should be treated

as one of form or substance is thus not automatically determined

by the “opinion” label; it depends squarely on the court’s determination

of the foundational fact as to personal knowledge, i.e., the

obviability of the objection.

From the point of view of counsel preparing for trial this means

there is no certainty that the court will classify an objection as one

of form merely because it is labeled “opinion.” There is only the

probability that if the court’s analysis leads it to so classify it, the

objection will not be permitted if asserted for the first time at trial.

In California an objecion to opinion testimony has been classified

sometimes as one of form,79 sometimes as substance. 0 Though the

cases are not explained in these terms, they offer some support for

the proposition suggested above that the defect is held “formal”

where good reason is found to believe that the conclusion was merely

a manner of summarizing observed facts (hence obviable) and “substantive”

where there is an inadequate showing of the witness’s

personal knowledge (hence incurable).

Thus in Brown v. Ball,8 part of an amount owing plaintiff was

proved by deposition testimony taken on written interrogatories.

The questions objected to asked the witnesses to state the “balance

due” their respective corporations. The court characterized the ob-

78 Various commentators have found it useful to distinguish between the issues

dealt with by the opinion rule and by the rule requiring the witness’s personal knowledge.

See 7 WIGOROE, supra note 2, at §§ 1917-18. The distinction is also drawn in the

California Evidence Code, the knowledge requirement being set forth in section 702 (a)

and the opinion rule in section 800. There is, however, an area of overlap between

these two sections. See Chadbourn, supra note 64, at 928-29.

79 R. H. Macy & Co. v. Robinson, 183 Cal. App. 2d 182, 190-91, 6 Cal. Rptr. 703,

708-09 (1960) (“On the basis of the reports and data submitted to you, and on the

basis of your own reports, can you state that the programs of the Metropolitan Pass

Book Company were aired and televised and that the contracts were performed?”);

Brown v. Ball, 123 Cal. App. 758, 12 P.2d 28 (1932).

80 Madera Ry. Co. v. Raymond Granite Co., 3 Cal. App. 668, 686, 87 P. 27, 34

(1906).

81 123 Cal. App. 758, 12 P.2d 28 (1932).

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WAIVER OF OBJECTIONS

jections as going to the form of the interrogatories, probably on the

ground that they were witnesses in a position to know, and held the

objections waived for lack of a prior objection.

In Madera Ry. Co. v. Raymond Granite Co., 2 the question at

deposition called for the “deliberate judgment” of the witness as

to whether certain persons were the owners for practical purposes

of a corporation, “outside of the stock that appears to have been

issued.”88 The court permitted the objection to be first asserted at

trial, because it did not call for “the facts as to the matter” 4 and

was therefore not formal. Other testimony in the deposition made

it abundantly clear that the witness lacked personal knowledge of

the affairs of the corporation. 5 While the question could have been

reformulated, there was little reason to believe the effort would have

resulted in useful testimony.

III. THE OBVIABILITY STANDARD

The obviability standard expressly recognizes the principle that

waiver should not be limited to an arbitrarily restricted group of

“form” objections. If form objections are waived it is because they

are often minor, “technical” and obviable. The same can be said,

however, of certain objections that do not go to the “form of the

question or answer.” There is then no reason in principle that similar

waiver consequences should not attach. The obviability test thus

enlarges the scope of potential waiver to embrace “substantive” objections,

as well as certain objections that do not conveniently fit

under the heading of either form or substance, by introducing a

broad, functional standard that can be flexibly adapted to the

contours of the relevant policy.

The examples below are intended to illustrate the kinds of

objections that might be deemed waived under the obviability test,

and to demonstrate the utility of a flexible, purposive standard in

place of a test that makes waiver turn upon a conceptual distinction

between formal and substantive defects.

  1. Best Evidence Rule

Assume that, contrary to the best evidence rule, a party sought

at deposition to prove the contents of a writing either through a

copy or through testimony as to its content, without laying the

82 3 Cal. App. 668, 87 P. 27 (1906).

88 Transcript at 95.

84 3 Cal. App. at 686, 87 P. at 34.

85 Transcript at 69-70, 94-95.

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necessary foundation for secondary evidence.”6 If objection is not

made at the deposition, has it been waived? An early California

case”7 held that an objection to 6ral proof of the contents of a deed

was not, under the then-governing statute which restricted waiver

to objections to the form of the interrogatory. The basis for the

holding is unclear. The court may have felt the objection was one

of substance rather than form, or that the defect was in the answer

rather than the interrogatory. Whichever the case, had objection

been made the examining party could probably have cured the error

in either of two ways: by laying the necessary foundation for secondary

evidence at the deposition, facts so permitting, or by taking

timely steps to procure the original for trial. Here again the rule of

evidence is one which merely states a preference. It insists upon the

“best evidence” if available, allowing substitutes provided adequate

excuse is given for nonproduction.

For these reasons many courts have held the objection waived 8

though others have not.89

Under the obviability test waiver would be the expected result.

  1. “Objections to the Competency of a Witness”90

The common law-and early California view-was that persons

having a direct pecuniary or proprietary interest in the outcome

of an action, and persons for whose immediate benefit the action

was prosecuted or defended, were disqualified from testifying in

the action.Yl This view crumbled under the impact of nineteenth

century procedural reform movements and the disqualification was

generally abolished in California in 1863.12 While the objection as

86 CAL. Evin. CODE §§ 1501-03 (West 1966).

87 Lawrence v. Fulton, 19 Cal. 683, 689-90 (1862).

88 York Mfg. Co. v. Illinois Cent. R.R. Co., 70 U.S. 107, 113 (1865); Columbia-

Knickerbocker Trust Co. v. Abbot, 247 F. 833, 852-54 (1st Cir. 1918) (an expert

accountant who had worked on the railroad’s books for over a year testified as to

calculations made from those books which, though not produced at trial, had been

available during the deposition); Forehand v. White Sewing Mach. Co., 195 Ala. 208,

70 So. 147 (1915) (copy of an order or contract); Webb v. Pacific Mut. Life Ins.

Co., 348 Ill. App. 411, 416-17, 109 N.E.2d 258, 260 (1952) (photostatic copy); Sanborn

  1. Dentler, 97 Wash. 149, 156-57, 166 P. 62, 65 (1917) (witness read into

deposition entries from his original books).

89 Webb Coal Co. v. School Dist., 342 Mich. 116, 69 N.W.2d 132 (1955) (evidence

consisting of 7 original laboratory reports gave test results as to quality of

coal, which chief chemist testified were a true transcript of the laboratory’s records)

Great West Life Assur. Co. v. Shumway, 25 N.D. 268, 141 N.W. 479 (1913).

90 CAL. CODE CiV. PRO. § 2021(c)(1) (West Supp. 1966).

91 Former CAL. CODE CiV. PRO. § 1880(3). See generally 2 WiGmORE, supra note

2, at §§ 575-78(a).

92 Cal. Stat. ch. 428, § 2 [1863] Cal. Stat. 701. The California history is recounted

in Recommendation and Study Relating to the Dead Man Statute in 1 CAL. LAW

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WAIVER OF OBJECTIONS

such is of only historical interest, it is worth noting for its bearing

on the appropriate standard for waiver.

It was early held that if a person incompetent by reason of interest

was examined at a deposition, the opposing party waived the

objection if it was not made at the time of the deposition.9″ In Jones

  1. Love,91 the court held the objection waived because: “If a party

could be permitted to reserve his objection as to the interest of the

witness until the trial, and then, for the first time, urge it, he could

entirely defeat the right of the party to execute a release, and thus

restore the competency of the witness.”95 This objection, however,

cannot without considerable strain be classified as one to the form

of the question, nor did the court attempt to so classify it. Without

reference to the statutory waiver provision,98 it merely concluded

that the examining party was entitled to the opportunity to abandon

his claim against the witness if he wished and thereby render him

competent.97 Here, again, the obviability standard better accords

with purposes underlying the waiver doctrine than does the rigidity

of the form test.

A more contemporary problem is that presented by a challenge

to the mental capacity of a deponent on the ground that he is too

young or mentally defective. 98 Should prior objection be required?

If advance objection had been made, the proponent of the testimony

would undoubtedly have various paths open to try to obviate the

defect. By additional questioning during the deposition he could

attempt to demonstrate that the witness was competent. The witness

could be brought before a judge for an advance determination

of competency.9 A psychiatrist could be brought to the deposition

to observe the witness and then testify at trial as to the witness’s

competency if the deposition were offered.’ ° Or additional wit-

REVISION CoMMIssloN REPORTS, RECOMMENDATIONS AND STUDIES at D-9 to D-18

(1957).

93 Brooks v. Crosby, 22 Cal. 42 (1863) ; Jones v. Love, 9 Cal. 68 (1858).

94 9 Cal. 68 (1858).

95 Id. at 71.

96 Cal. Stat. ch. 5, § 430 [1851] Cal. Stat. 119 provided that deposition testimony

was “subject to all legal exceptions” except those to the form of the interrogatory.

97 Cf. Albers Comm’n v. Sessel, 193 Ill. 153, 61 N.E. 1075 (1901) (objection to

competence not waived by failure to object at deposition, under statute which barred

an incompetent witness from being competent by release or assignment of claim).

98 See CAL. Evm. CODE § 701 (West 1966).

99 See Clark v. Geiger, 31 F.R.D. 268, 270 (E.D. Pa. 1962) (dictum); State v.

Wilson, 156 Ohio 525, 532-33, 103 N.E.2d 552, 556-57 (1952) (dictum). Under the

Evidence Code, the witness’s competency is “to be determined by reference to the

time the former testimony was given.” CAL. EvID. CODE § 1291(b), Comment, Assembly

Committee on Judiciary (West 1966).

100 Clark v. Geiger, 31 F.R.D. 268, 271 (E.D. Pa. 1962).

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nesses might be produced at trial to testify to the witness’s competency

during the period surrounding the deposition.

These possibilities argue for waiver, just as in the case of the

“form” objections. There is, however, an important difference. In

the case of the form defects, not only had there been alternate,

preferable ways to elicit the testimony, but there was a substantial

likelihood that the defects would in fact have been cured. The defects

in the testimony as it stood could thus be regarded as relatively

minor; whereas here, if the objection were valid, the testimony

would probably be incurably worthless. This follows from

the fact that the witness is presumed competent and that the opponent

carries the burden of proving his lack of capacity.10′ The

objection would be sustained only if the opponent produced proof

sufficiently persuasive to overcome the presumption. If the court

concluded he had, this would normally support a finding also that

the defect was not obviable. Objections to competency of the witness

should therefore normally be permitted at trial though not previously

made.10 2

  1. Procedural Defects

All types of procedural defects in the notice for the deposition,

the manner of taking it, or in its completion or return are subject

to waiver if timely objection would have enabled the examining

party to cure the defect. 0 There are also certain requirements as

to the manner of examining witnesses that might be designated procedural.

For example, if a writing is to be shown a witness, California

rules provide that other parties are entitled to the opportunity

to inspect it before the questioning begins. °4 Would an objection

under this rule be to the “form of the question”? Under the obviability

test, any such dispute would be wholly irrelevant. If prior

objection were not made, it would be held waived at trial.

  1. Objections “To the Competency, Relevancy, or Materiality

of Testimony”‘105 and “Errors of Any Kind”‘e6

We have thus far examined the applicability of the obviability

standard in a number of specific cases. This waiver rule would, how-

101 CAL. Evm. CODE § 405, Comment, Assembly Committee on Judiciary (West

1966).

102 Houser v. Snap-On Tools Corp., 202 F. Supp. 181, 189-90 (D. Md. 1962).

See also cases collected at 1 WIGOORE, supra note 2, at § 18, at 329 nn.11-12.

103 CAL. CODE CIV. PRo. §§ 2021(a)-(b), (c)(2), (d) (West Supp. 1966). See

Appelhans v. Kirkwood, 148 Colo. 92, 99-100, 365 P.2d 233, 237-38 (1961); King v.

Green, 7 Cal. App. 473, 478-79, 49 P. 777, 778-79 (1908) ; 1 WIGMORE, supra note 2,

at § 18, at 327-28.

104 CAL. Evm. CODE § 768 (West 1966).

105 CAL. CODE CIV. PRO. § 2021(c) (1) (West Supp. 1966).

106 CAL. CODE CIv. PRO. § 2021(c) (2) (West Supp. 1966).

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ever, open a vast range of “substantive” objections to potential

waiver. Virtually any substantive defect “might” in theory be obviated-

not necessarily by the mere reformulation of the question

as, for example, in the case of leading questions-but by demonstrating

the existence of such other facts as are necessary to lay a

“foundation” for the desired testimony.

For example, the admissibility of a writing may depend upon

a foundation of authenticity.’0 7 Expert testimony hinges on a preliminary

showing that the witness is qualified by virtue of special

knowledge and skill.0 8 Evidence of past recollection recorded is

dependent upon a showing of the witness’s lack of present recollection

and of the accuracy of the writing. 9 A witness must generally

be shown to have personal knowledge of the subject of his testimony.

110 The hearsay exceptions generally are “a study of foundation

testimony,””‘ i.e., those facts necessary to demonstrate the

circumstantial reliability of the hearsay and, often, its need.” 2

Finally, relevancy issues may reduce themselves to foundational

problems, particularly in connection with circumstantial

proof. Such proof often depends on inferential leaps from several

facts, no one of which may have independent relevance. Admissibility

of a particular element of the circumstantial proof may therefore

depend squarely on “connecting” facts.” 8 Thus, with respect to

a wide range of objections “to the competency, relevancy, or materiality

of testimony,” the grounds for objection conceivably “might

107 See CAL. EviD. CODE § 1401-21 (West 1966). No attempt is made here or

in the ensuing examples to draw a distinction based on the character of the necessary

showing, i.e., whether there need merely be evidence “sufficient to sustain a finding

of the existence of the preliminary fact,” CAL. Evm. CODE § 403 (West 1966), or

whether the evidence must in addition persuade the court of the existence of the

preliminary fact. CAL. Evm. CODE § 405 (West 1966). The distinction has no relevance

for the purpose at hand.

108 CAL. Evio. CODE § 720 (West 1966). If an expert testifies in the form of an

opinion, he may be cross-examined as to the contents of technical or professional texts

not in evidence only if it is first shown that he considered such texts in forming his

opinion. CAL. EvrD. CODE § 721 (West 1966).

109 CAL. Evm. CODE § 1237 (West 1966).

110 CAL. Evm. CODE § 702 (West 1966).

111 Ladd, Objections, Motions and Foundation Testimony, 43 CORNELL L.Q. 543,

560 (1958). See generally id. at 559-65.

112 See CAL. Evm. CODE §§ 1220-1340 (West 1966).

113 An example taken from the official comments to the Evidence Code is that

if P sues D upon an alleged contract, negotiations between P and A are irrelevant

unless A is shown to be the agent of D. CAL. Evm. CODE § 403, Comments, Assembly

Committee on Judiciary (West 1966). Similarly, in a negligence case, whether a landowner

had knowledge of prior accidents on a certain staircase is irrelevant unless it

is shown that those accidents occurred because of the particular defect complained

of by the plaintiff. Thompson v. Buffums’ Inc., 17 Cal. App. 2d 401, 62 P.2d 171

(1936). See generally McCoRicx, supra note 1, at § 58; 1 WIGMORE, supra note 2,

at §§ 32-35.

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have been obviated” by foundational testimony had timely objection

been made at the deposition.

How liberally should the test be conceived? If, at its broadest,

the scope of waiver would be limited only by. the ability of the

proponent at trial to imagine hypothetical foundational facts that

might have been but were not shown to exist during the deposition.

(Had they been shown, the testimony would be unobjectionable and

the waiver issue would not arise.) A prior objection would then be

required no matter how remote or far-fetched the possibility of correcting

the error. If it were unlikely that the proponent could in

any event cure the defect, the objection would serve only the proponent’s

interest in advance warning of his adversary’s tactics. If

the proponent were apprised of defects in his case he would be

warned to secure other evidence or alter his theory of the case so

as to “obviate” the tactical problems caused by the objection. But

this is an interest not generally protected by the waiver rule.” 4 If

it were, what objection would not be “obviable”? The text of the

rule makes obviability of the “grounds” of the objection the test

rather than obviability of the tactical problems it might pose.” 5

Taking the narrowest view, on the other hand, the proponent

could be required at trial to demonstrate the actual existence of

obviating facts in order to have the objection held waived. This

would require him to prove the objection without merit in order to

effect a waiver. Such a rule would make the question of whether

the objection was waived or not a meaningless inquiry. Moreover,

the only witness through whom the obviating facts could often be

established would be the deponent himself whose very unavailability

at trial is the precondition for use of the deposition. This,

then, is tantamount to saying it is not waived.

It should be noted that wherever one draws the line between

waiver and nonwaiver, the results may not prove an unmixed blessing.

To the extent objections are held waived by the failure to raise

them at the previous hearing, unsound testimony may be admitted

in evidence. To the extent they are permitted without prior objection,

valuable testimony may be excluded. The point is to apply the

standard in a way that minimizes these risks. A reasonable solution

114 However, in some situations, e.g., in the case of the best evidence objection,

this interest is protected. See text accompanying notes 86-89 supra.

115 A contrary view has sometimes been expressed, e.g., Gregory v. Dodge, 12

N.Y. Com. L. 591, 14 Wend. 593 (1835) (quoted in 1 WIGMORE, supra note 2, at § 18,

at 326). In the context of an objection to the witness’s competence because of interest,

the court in Gregory suggested one of the functions of the objection was to give the

proponent the opportunity of “substantiating the facts by other witnesses.” Id. at

592, 14 Wend. at 595.

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would be to resolve the issue in term of the probabilities, a finding

of obviability being made to depend on a showing of a substantial

likelihood that the defect would indeed have been obviated if earlier

objection had been made.

The critical question then becomes whether there is a rational

basis for assessing the likelihood that the defects are obviable. Or

is this test merely an invitation for uninformed, arbitrary speculation?

Such rational grounds were most readily seen to exist in the

case of those objections traditionally classified as formal. With respect

to leading questions and unresponsive answers, curability was

indeed a characteristic of the entire class of objections. The range

of objections of “substantive” types on the other hand is, however,

so extensive, the facts of the cases so variable, the relevant factors

so numerous, that usable rules uniformly applicable to specific types

of objections cannot be developed. Waiver here cannot be made a

function of the label affixed to the objection. The determination, if

it is to be made at all, must be made on an individual basis in light

of the facts presented. Precisely this has been done in connection

with opinion objections, previously considered. It can be done as

well in other cases.

Consider the problem of authentication of a “writing.” One

case has singled out seven distinct foundational facts required for

the authentication of a tape recording of a conversation” 6 (which

is a “writing” under Evidence Code section 250). Assume a deponent’s

effort at authentication consisted only of his testimony that

he made the recording and knew it to be an accurate reproduction

of the conversation it purported to represent. The court might conclude

on the record before it that the detailed foundational requirements

would probably have been met if insisted upon at the deposition.

The witness’s testimony could in fact be characterized as

no more than a conclusionary form of the testimony as to constituent

requirements and the objection held waived on that ground.” 7

116 “(1) That the recording device was capable of taking the conversation now

offered in evidence. (2) That the operator of the device was competent to operate

the device. (3) That the recording is authentic and correct. (4) That changes, additions,

or deletions have not been made in the recording. (5) That the recording has

been preserved in a manner that is shown to the court. (6) That the speakers are

identified. (7) That the conversation elicited was made voluntarily and in good

faith, without any kind of inducement.” United States v. McKeever, 169 F. Supp.

426, 430 (S.D.N.Y. 1958).

117 See T. C. Young Constr. Co. v. Brown, 372 S.W.2d 670, 673-74 (Ky. Ct.

App. 1963) (objection first made at trial that “integrity” of X-rays concerning which

doctor had testified had not been established and because they had not been on

hand for purposes of cross-examination at the deposition, held waived as “niggling

technicalities”).

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Likewise, in Cordle v. Allied Chemical Corp.,”8 there was excellent

reason to believe that defects in testimony could readily have

been cured had prior objection been made. The issue arose out of the

deposition of plaintiff’s doctor. He gave as his medical opinion that

the plaintiff was totally and permanently disabled, an important

item of testimony in behalf of the plaintiff since the other doctors

in the case found only a partial disability. Under the Kentucky rules

of evidence, however, the testimony was objectionable as hearsay

in that, in giving his opinion, the doctor recited certain of plaintiff’s

subjective symptoms on which it was based. While the law permitted

the doctor to rely on these statements in arriving at his

opinion, it did not permit him, as a non-treating physician, to relate

them as a means of bolstering his testimony.

Defendant made no objection until trial. The court held the

objection obviable and therefore waived under Federal Rule 32 (c).

The defect, the court noted, could have easily been cured at the

deposition: the doctor could have been asked to state his opinion

without reciting the subjective symptoms. If plaintiff’s counsel had

wanted the subjective symptoms stated as a predicate for the opinion,

he could have posed hypothetical questions during the deposition

in which these symptoms were part of the assumed facts and

then at trial used the plaintiff’s own testimony as the foundation

for the hypothetical question. The waiver result was further supported

by the fact that it must have been evident to defendant’s

counsel the deposition was being taken solely for use as evidence

upon the trial. Plaintiff would hardly have had need for discovery

against his own doctor.

Facts in the deposition itself may, however, virtually preclude

the possibility that the error was correctable.” 9 Or the record may

offer no reason to justify a belief one way or another. Under such

circumstances, the objection should be held not waived. For reasons

previously stated, the burden should remain with the proponent to

establish the likelihood that no injustice would follow from the use

of the testimony in its defective form . 20 And were the rule other-

118 309 F.2d 821 (6th Cir. 1962).

119 E.g., Estate of Short v. Bank of America Nat’l Trust & Say. Ass’n., 7 Cal.

App. 2d 512, 518-19, 525-26, 47 P.2d 555, 561 (1935); Madera Ry. Co. v. Raymond

Granite Co., 3 Cal. App. 668, 686, 87 P. 27, 34 (1906).

120 Hearsay objections not waived: Johnson v. Nationwide Mut. Ins. Co., 276

F.2d 574, 579 (4th Cir. 1960); Martyn v. Leslie, 137 Cal. App. 2d 41, 58, 290 P.2d

58, 68 (1955) ; Bell v. Washam, 82 Ga. App. 63, 66-67, 60 S.E.2d 408, 410-11 (1950) ;

Clark v. Employers’ Liab. Assur. Co., 72 Vt. 458, 462-63, 48 A. 639, 640 (1900).

But see Hill v. Condon, 14 Ala. App. 332, 70 So. 208 (1915) (objection to testimony

indisputably hearsay was held waived since the accuracy of the testimony was not

disputed). Relevancy objections not waived: see cases cited note 124 infra. Objection

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wise, it would operate as a trap for the non-discovering party. For,

on the one hand, he is invited to adopt a “cooperative” attitude and

to abstain from cluttering the deposition with technical objections

in order to facilitate broad discovery; 121 on the other, he would be

confronted with an open-ended risk of waiver at trial.

Two further factors warrant mention. In some situations, not

only is there a likelihood that the defect could have been cured had

prior objection been made, but the cure is dependent upon testimony

from the deponent. This was, for example, generally the case with

“form” objections. With respect, however, to those objections which

can be met only by foundational testimony, that testimony may be

available from witnesses other than the deponent. If challenge is

made to the mental competency of a deponent, for example, other

witnesses may be able at trial to establish the deponent’s capacity.

In these cases there is less reason to bar an objection first asserted

at trial since its deferral does not prevent the proponent from then

attempting to correct the defect.

The extent to which the grounds for objection are apparent at

the time of the deposition is also a consideration meriting weight.

The opponent of the testimony should not, of course, be expected.

to object in advance to defects that are not then visible. It is a well

recognized principle that objections are not waived by failure to

assert them before the grounds for objection are reasonably ascertainable.

12 2 But the visibility of such grounds is often a matter of

degree. The less apparent they are, the greater should be the reluctance

to hold the objection waived.

At one pole are objections to leading questions and unresponsive

answers in which the grounds are immediately apparent and are

neither dependent on what other evidence is offered nor upon a

sophisticated analysis of the case. At the other pole are objections

to relevance, which in most cases could not be meaningfully made in

the context of a deposition. Objections on this ground often call for

a balancing process in which the logical relevance of the evidence is

weighed against the tendency of the evidence to prejudice, confuse,

or waste time. 23 The opponent cannot know whether he has grounds

to a question based on an unsupported conclusion not waived: Calley v. Boston &

Maine R.R., 93 N.H. 359, 362-63, 42 A.2d 329, 331 (1945) (former testimony).

121 Detective Comics Inc. v. Fawcett Publications Inc., 4 F.R.D. 237, 239

(S.D.N.Y. 1944).

122 This principle of course underlies the practice of permitting a motion to

strike when the inadmissible grounds first become apparent after the answer is given,

for example when the answer is unresponsive, or when it subsequently becomes clear

that the testimony was not based on personal observation. City Nat’l. Bank v: Nelson,

218 Ala. 90, 117 So. 681 (1928).

123 CAL. Evm. CODE § 352 (West 1966).

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for such objection at the deposition since this depends on the context

in which the evidence is later offered. Or the objection may be on

the grounds that the evidence lacks any logical relevance whatever.

But the opponent cannot normally know what further connecting

links the examining party may intend to produce at trial. If such

objections were made at the deposition, they would amount only to a

charge that the examining party has not proved his entire case

during the doposition. True, but hardly useful.’24

Though obviability is made the touchstone for waiver under the

discovery rule, several other considerations, not mentioned in the

rule, may appropriately bear on the determination in close cases.

1) The extent to which the deposition appears to be predominantly

intended for use as evidence rather than as discovery. It is,

of course, a basic feature of modern deposition practice that the

discovering party may simultaneously pursue evidentiary and discovery

objectives without election and without notice to opposing

counsel of the intended use.’25 Frequently the interrogating party

does have mixed objectives. There is then good reason to be reluctant

about effecting waiver, since, as noted, a liberal waiver rule would

encourage the opposing attorney to interject numerous protective

objections interfering with the discovery function. There are, however,

cases in which the context strongly suggests that the dominant,

perhaps exclusive, purpose of the deposition is evidentiary rather

than discovery.’26 This circumstance should be considered in favor

of waiver of those objections not stated at the deposition.

2) The extent to which the court views the objection as “technical”

or unsound in principle. “Technical” in this context may have

various connotations. It may be merely an alternate way of characterizing

an objection as obviable. It is “technical” because, though

the rule invoked is generally valid, the opponent is attempting to

exclude evidence for a defect which “everyone knows” under the

circumstances could have been met if timely insistence had been

made.

But the court may also take a dim view of the objection in

124 Objection to relevancy permitted at trial without prior objection: Hamilton

  1. Pulaski County, 86 Ga. App. 705, 709, 72 S.E.2d 487, 492 (1952) (employing a

flat rule that objections to “competency and relevancy” are not waived; “those affecting

the formal development” are); Nocar v. Greenberg, 210 Md. 506, 510, 124 A.2d

757, 760 (1956).

125 CAL. CODE CIV. PRO. § 2016(a) (West 1955). See 4 MOORE, supra note 13,

at f 26.04. But see Halperin v. Hot Springs Street Ry., 227 Ark. 910, 914, 302 S.W.2d

535, 537 (1957) (“a discovery deposition is not involved here”); ILL. ANNOT. STAT.

  1. 110, §§ 101.19-4, 101.19-10 (1956).

126 Cordle v. Allied Chem. Corp., 309 F.2d 821 (6th Cir. 1962).

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general, not only as applied in the particular case.1 27 The use of

waiver to narrowly circumscribe undesirable rules is an important

aspect of judicial discretion and would hardly represent an innovation.

3) The necessity for the testimony. If the defective portion of

the testimony was easily severable from the non-defective portion 1 28

or if the deponent was available during the trial and could have

been called to testify in non-objectionable form, the pressure to hold

the objection waived is reduced.

Thus, in Finn v. J. H. Rose Truck Lines,129 one of the defendants

had testified at a deposition that a co-defendant’s vehicle

had been “congesting traffic” and that the road was “completely

blocked.”8 0 The plaintiff offered the deposition, even though the

deponent was personally present at the trial. This was permitted

since unavailability was not a condition for admissibility of the

deposition of an adverse party. The court recognized the imprecision

of the fact-opinion dichotomy but nevertheless held the objection

waived under the state’s counterpart to Federal Rule 32(c). It did

so because there was a risk that the testimony would be misunderstood:

its conclusionary form left it unclear as to which of several

vehicles was responsible for the road blockage. Moreover, the risk

was unjustified since the deponent had been present during the trial

and could readily have been called as a witness to testify as to the

facts of the matter. With no need for the defective deposition testimony,

the court quite soundly found no reason to hold the objection

waived.

  1. OBJECTIONS BY THE EXAMINING PARTY

We have until now assumed that the party who elicited the

prior testimony is the proponent of the evidence at trial. The reverse

may, however, be the case. A deposition does not “belong” to the

examiner; other parties have an equal right to its use.13′ Assume,

then, that the non-examining party offers it at trial. May his opponent,

the party who had himself elicited that testimony, then object?

Or has he waived the objection by virtue of having asked the question

at deposition?

127 Incompetency for interest is an example. See text accompanying notes 90-97

supra.

128 Rivera v. Hancock, 79 Ariz. 199, 286 P.2d 199 (1955).

129 Finn v. J. H. Rose Truck Lines, 1 Ariz. App. 27, 398 P.2d 935 (1965).

180 Id. at 33, 398 P.2d at 941.

181 CAL. CODE Crv. PRO. §§ 2016(d), (f) (West 1955); Estate of Goldman, 86

Cal. App. 125, 129-30, 260 P. 586, 588 (1927).

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The California answer under pre-1958 discovery practice was

unclear. In Madera Ry. Co. v. Raymond Granite Co.,i”2 defendant,

in taking a deposition of an officer of the plaintiff corporation, had

made certain copies of the corporate records part of the deposition.

At trial, the deposition was offered by the plaintiff. Defendant

objected to the copies as secondary evidence. The court held the

objection waived since the documents had been incorporated into

the deposition at the defendant’s instance. The court cited that code

provision permitting the deposition to be used at trial by either

party and ignored another provision securing the right to object at

trial except as to formal defects in a question. 8 Taken at face

value, the court’s reasoning would bar the examining party from

objecting to any evidence he had produced at deposition. 4 On the

other hand, Martyn v. Leslie”5 held that the examining party did

not waive objections to hearsay and conclusionary testimony by

merely taking the deposition. He was permitted to object when the

non-examining party offered it, under the identical waiver provision

found in Madera. Cases decided under various discovery rules, state

and federal, have similarly refused to impose a general waiver consequence.’

Whatever the rule prior to 1958, under the new Discovery Act

any other rule would be an absurdity. Free-ranging discovery would

become a hazardous venture indeed if the examiner were held to

waive objections to precisely that inadmissible but useful testimony

the discovery rules encourage him to procure as part of trial preparation.

There is no more reason to hold the examining party has

automatically waived such objections by virtue of his examination

than to hold that his adversary has automatically waived them by

182 3 Cal. App. 668, 685-86, 87 P. 27, 34 (1906).

188 CAI.. CODE CIV. PRO. § 2032 (West 1955), then provided that the deposition

could “be used by either party upon the trial . . . subject to all legal exceptions”

except for objection “to the form of an interrogatory,” which this objection was not.

Madera Ry. Co. v. Raymond Granite Co., 3 Cal. App. 668, 686, 87 P. 27, 43 (1906).

184 Such a result was in fact reached with respect to incompetency because of

interest or under the Dead Man Statute: McClenahan v. Keyes, 188 Cal. 574, 576-77,

206 P. 454, 455-56 (1922) (Dead Man Statute) ; Brook v. Crosby, 22 Cal. 42 (1863) ;

Jones v. Love, 9 Cal. 68 (1858) ; Turner v. McIlhaney, 8 Cal. 575, 580 (1857) (“[tlhe

party who calls upon an adverse party to testify, makes him a witness”). Contra,

Duling v. Markun, 231 F.2d 833, 839 (7th Cir. 1956) (objection to competency under

Dead Man Statute not waived by mere taking of deposition under FED. R. Crv. P. 26).

1s5 137 Cal. App. 2d 41, 58-59, 290 P.2d 58, 68 (1955).

186 Johnson v. Nationwide Mut. Ins. Co., 276 F.2d 574, 578-79 (4th Cir. 1960);

Duling v. Markun, 231 F.2d 833, 839 (7th Cir. 1956); State v. McCall, 158 Kan.

652, 654, 149 P.2d 580, 581 (1944) (accused who took a deposition in a criminal case

did not waive his right to object to state’s use of it at trial on ground it violated right

of confrontation) ; Nocar v. Greenberg, 210 Md. 506, 510, 124 A.2d 757, 760 (1956);

Cudlip v. New York Evening Journal Publishing Co., 180 N.Y. 85, 72 N.E. 925 (1904).

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WAIVER OF OBJECTIONS

the failure to object. The current statutory provisions make amply

clear that a party assumes no such special responsibility for a witness

by the mere taking of his deposition. 18 7

If he does not waive all objections, does he, however, waive at

least those very same defects that the non-examining party waives

through silence? The Discovery Act makes no specific reference to

the problem, but precisely such a line is drawn under the California

statute with respect to the use of former testimony. The examining

party there is made to face waiver consequences co-extensive with

those of the non-examining party, no greater, no less.’88 The reason

offered is that “the party against whom the former testimony is now

offered phrased the question [at the former proceeding] himself. 1 89

This is also true in the deposition context. But in the deposition

context the question may have been asked either in pursuit of evidence

or discovery. To the extent it is the latter, the attorney may

knowingly elicit inadmissible testimony relying on his right to object

if it is offered against him at trial. If by asking the question he is

now held to waive objections to obviable defects, the risk involved

in conducting thorough-going discovery is expanded.

Nevertheless, this does not seem to raise a serious problem. The

discovering party always faces a risk of producing admissible testimony

more helpful to his opponent than to himself. The risk is often

worth taking and is not appreciably increased merely because

defective-but-obviable testimony as well as wholly unobjectionable

testimony is made admissible.

Furthermore, if the interrogating party does elicit some obviably

defective testimony, say, testimony in opinion form, he can

always protect himself at deposition by examining the witness further

to attempt to establish that the opinion is ill-founded. Taken

literally, Code of Civil Procedure section 2021(c) would permit the

interrogating party to “object” to his own question at the deposition

and thereby preserve the objection in the event his opponent later

offered the testimony at trial. The notion that an attorney would

ask an objectionable question and then object to it, has a thoroughly

improbable ring. Moreover, all it would accomplish is to shift the

burden to the opposing party to elicit the same testimony on crossexamination.

Assuming the opposing party asked the same objection-

187 CAL. CODE CIv. PRo. § 2016(f) (West 1955). Cases decided under the analogous

federal rules have so held. Johnson v. Nationwide Mut. Ins. Co., 276 F.2d 574,

579 (4th Cir. 1960); Duling v. Markun, 231 F.2d 833, 839 (7th Cir. 1956).

188 CAL. EvID. CODE § 1291(b) (West 1966).

189 CAL. Evm. CODE § 1291, Comment, Assembly Committee on Judiciary (West

1966).

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able question, the burden would then be back with the original

interrogating party to object or waive the error if it were curable.

Thus, the reasons against extending waiver consequences to the

examining party equal to those confronting the non-examining party

are minor. The reasons supporting it are the same as those which

apply when the objection comes from the non-examining party.

  1. WAIVER OF FORMER TESTIMONY

Evidence Code section 1291, governing the use of former testimony,

provides that the only objections waived by failure to assert

them at the prior hearing are those to the “form of the question.” 4

Why the scope of waiver for former testimony took this precise form

is not clear. It was, on the one hand, patterned after neither the

predecessor to section 12911 nor the analogous provision of the

Uniform Rules of Evidence, rule 63(3), each of which made no

provision for waiver of objections. Nor does it follow the waiver

provisions of the current Discovery Act though they had been on the

books for several years at the time Evidence Code section 1291 was

adopted.1

42

Professor Chadbourn’s study for the California Law Revision

Commission recommended that the waiver provisions of section

1291 duplicate those of the Discovery Act. 43 Instead, the narrow

waiver rule was adopted which limited waiver to “form” objections

and then only to objections directed to formally defective questions,

and not to similarly defective answers. The model most likely followed

was the waiver rule that had been applicable to deposition

testimony prior to 1958.114

So long as waiver is restricted to defects in a question alone,

there is an obvious potential for anomalous results. An objection

140 The statute is set forth supra note 12. The form-substance distinction has

been urged as the basis for making the waiver determination. 3 JONES, B. EVIDENCE

  • 1177, at 2156-57 (1926); McCoRmiCK, supra note 1, at § 236, at 497; annot. 159

A.L.R. 119 (1945).

141 Former CAL. CODE CIV. PRO. § 1870(8), repealed, Cal. Stat. ch. 299, §§ 55-60

(1965).

142 CAL. CODE CIV. PRO. § 2021 (West Supp. 1966) was enacted in 1957; CAL.

EVID. CODE § 1291 (West 1966), in 1965.

143 CALIFORNIA LAW REVISION COMmIvssION, A STUDY RELATINO TO THE HEARSAY

EVIDENCE ARTICLE OF THE UNIFORM RiULES or EVIDENCE (Tentative Recommendation

and a Study Relating to the Uniform Rules of Evidence), art. VIII, 401, 445 (1962).

144 Former CAL. CODE CIV. PRO. § 2032, repealed, Cal. Stat. ch. 1094, § 1 (1957).

It provided that the use of a deposition was “subject to all legal exceptions; but if

the parties attend at the examination, no objection to the form of an interrogatory

shall be made at the trial, unless the same was stated at the time of the examination

. .. .”

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might be held waived if directed to a question expressly seeking

opinion testimony, but not if the identical opinion were volunteered

by answer.”‘ If the waiver result under a provision of this type

turns on whether an objection goes to the question or answer, Wigmore

observed, “it had better be amended.”‘1 46 And, indeed it was in

the New Discovery Act, but it was incorporated afresh in Evidence

Code section 1291.

The need for a flexible standard is even more acute here, given

the manifold situations governed by section 1291, than in the case

of the Discovery Act. The deposition waiver rule is concerned with

only one problem: the use of a deposition in a later proceeding in

the same case, always a civil case. In contrast, the former testimony

provisions embrace a variety of dissimilar situations. The testimony

may have been originally produced in a civil or a criminal

proceeding in the same or another case; the earlier proceeding may

have been a trial, a deposition, a preliminary examination, or an

arbitration proceeding; and it may be offered in a similar variety of

proceedings. The relevant waiver circumstances may therefore vary

greatly. A sound approach to waiver is far less susceptible to categorical

treatment under the former testimony statute than it is in

the deposition context. Fair results require sufficient flexibility to

permit the court to give due weight to the particular circumstances

of the cases. This argues in support of Professor Chadbourn’s proposal

that the deposition waiver rule be extended to this area.

In addition to the considerations previously discussed that bear

on waiver in the deposition context, a sound approach to waiver

under Evidence Code section 1291 would permit the court to weigh

the following factors:

First, the extent of the lawyer’s reliance on the waiver rule at

the time of the former proceeding. The greater the reliance, the

more need for predictable results. As already noted, the extent of

reliance varies greatly depending on the nature of the proceeding.’47

Second, the extent to which the party against whom the former

testimony is offered had the same motive and interest in objecting

at the former proceeding that he does in the present one. Where the

motive and interest in cross-examination are too dissimilar, the testi-

145 See Martyn v. Leslie, 137 Cal. App. 2d 41, 58-59, 290 P.2d 58, 68 (1955).

146 1 WIGMORF, supra note 2, at § 18, at 329 n.9. The comment was with reference

to Estate of Short v. Bank of America Nat’l. Trust & Say. Ass’n, 7 Cal. App.

2d 512, 47 P.2d 555 (1935), which held that an objection to an answer from a

deposition as unresponsive was not waived under the statute by failure to state it

at deposition.

147 See Part I supra.

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mony would be wholly inadmissible. 14 8 But even where this is not the

case, there may be sufficient dissimilarity to be worthy of consideration

in the waiver determination.

Third, whether the former testimony is offered in a civil or

criminal case and if the latter, whether in behalf of the prosecution

or defense. To admit former testimony denies the opponent a present

opportunity to cross-examine. There may understandably be greater

reluctance to permit this as against a criminal defendant than in

other contexts. 49

  1. CONCLUSION

The obviability test presently applicable to discovery testimony

serves in minimizing the importance of rigid distinctons between

form and substance and in focusing instead on the underlying function

of the waiver mechanism. Properly interpreted, it confers a

useful area of discretion upon the court to admit evidence worthy of

the fact-finder’s attention but which, nonetheless, happens to run

afoul of “technical” rules of evidence. 5 ‘ The objections that are

subject to such waiver are those the court would in any event be

tempted to overrule if compelled to face them on the merits. Indeed,

if there were no implied waiver rule, if all objections were deemed

preserved for trial without prior objection, many of those today held

waived would probably be overruled on the merits.

Since the waiver of non-formal defects is and should be narrowly

circumscribed, the obviability standard ought not impose any

significant strain on the discovery process. Attorneys may rationally

assume that seriously objectionable testimony can be objected to at

trial whether or not prior objection had been made. They can thus

afford to adopt a cooperative attitude at the deposition without need

to interpose a flurry of protective objections. The same reasons suggest

that the obviability test should be extended to those situations

governed by Evidence Code section 1291, in place of the oddly constricted

rule presently in effect.

148 CAL. Evm. CODE § 1291(a)(2) (West 1966) conditions admissibility of

former testimony against a party upon his having had a similar motive and interest

in cross-examining at the prior hearing. Similarity of motive and interest “should be

based on practical considerations,” including the desire not to cross-examine searchingly

in order “to avoid premature revelation of the weakness in the testimony of

the witness or in the adverse party’s case.” CAL. Evm. CODE § 1291, Comment,

Assembly Committee on Judiciary (West 1966).

149 Cf. State v. Wilson, 156 Ohio 525, 103 N.E.2d 552 (1952) (deposition testimony

excluded in a criminal case based on incompetency of the witness).

150 4 MOORE, supra note 13, at 32.02, at 2203.

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To the extent the form waiver rule achieves greater predictability

than the obviability rule it does so by arbitrarily restricting

the scope of waiver. But a good deal of the “certainty” under the

form test is illusory. The arbitrary limitations of the form test may

encourage an unpredictable expansion of the scope of waiver since

the court may proceed independently of the statutory rule where

circumstances seem to require it.15’ Furthermore, courts have considerable

leeway to reduce the grade of an objection and treat it as

one of form or upgrade it and treat it as one of substance, depending

on the determinations made under Evidence Code section 403 as to

the existence of preliminary facts. The vice of the form rule in this

connection is that it provides little guidance as to how the choice

is to be made and in fact tends to conceal the very fact that one

is being made.

The obviability standard in contrast represents a desirable

recognition of the underlying function of the waiver rule and of the

intractability of the problem to solution by precise rule.

151 As in the treatment of disqualification for interest. See cases cited note 134

supra.

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