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Monthly Archives: November 1967Image
View in searchable PDF format: 1967.11.00 – Letwin, Waiver of Objections for Former Testimony (UCLA L.Rev).OCR
15 UCLA L. Rev. 118 1967-1968
WAIVER OF OBJECTIONS TO
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
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
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
(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
(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
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
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
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
(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.’
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
- 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-
— 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.
- 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.
— 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.
- 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.
- 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
- 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 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
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.
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. 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
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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.
- 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.”‘
- 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.
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WAIVER OF OBJECTIONS
certain that it is properly raised, the objection must be renewed at
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.
- 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
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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
- 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.
- & 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).
[Vol. 15: 118
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WAIVER OF OBJECTIONS
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
… [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.
- 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
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
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.
- H. Luers Drug Co., supra.
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WAIVER OF OBJECTIONS
pursued the point on cross-examination. In short, the objection is
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″
- 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
61 CAL. EVID. CODE § 800 (West 1966).
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WAIVER OF OBJECTIONS
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
- 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
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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WAIVER OF OBJECTIONS
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
- 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
- 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
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.
- 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.
- “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
- 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  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
- 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
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  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
- 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.
- 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
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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WAIVER OF OBJECTIONS
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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WAIVER OF OBJECTIONS
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
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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
[Vol. IS: 118
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WAIVER OF OBJECTIONS
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
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
But the court may also take a dim view of the objection in
124 Objection to relevancy permitted at trial without prior objection: Hamilton
- 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.
- 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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WAIVER OF OBJECTIONS
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
- 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
127 Incompetency for interest is an example. See text accompanying notes 90-97
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
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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.
- 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
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
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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WAIVER OF OBJECTIONS
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
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
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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WAIVER OF OBJECTIONS
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
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