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When an attorney's question has crossed the line from cross-examination into argument, opposing counsel objects with "Objection, argumentative" or "Counsel is badgering the witness." The judge uses discretion to determine whether the attorney is legitimately testing the witness's testimony or is simply making arguments to the jury disguised as questions. Argumentative questions often involve the attorney inserting their own characterization, drawing conclusions for the witness, or repeating the same challenge after the witness has answered. The judge may also intervene sua sponte to protect a witness from harassment.
Attorney: "So you expect this jury to believe that you just happened to be at that exact location at that exact time? Come on!" Opposing Counsel: "Objection, argumentative." Judge: "Sustained. Counsel, ask a question."
Attorney: "How convenient that you suddenly remember this detail now, isn't it?" Opposing Counsel: "Objection, argumentative and badgering the witness."
Judge: "Counsel, you've asked that question three times and received an answer. Move on or I will sustain the next objection."
Students often confuse aggressive cross-examination with argumentative questioning. Vigorous cross-examination using leading questions is perfectly proper. The line is crossed when the attorney stops seeking information and starts making arguments or browbeating the witness.
773 F.3d 216 (8th Cir. 2014)
Discussed the trial court's broad discretion under FRE 611(a) to sustain argumentative objections when questions amount to counsel testifying.
610 F.3d 1283 (11th Cir. 2010)
Upheld sustaining argumentative objections where prosecutor's questions were designed to make arguments rather than obtain testimony.
355 F.3d 804 (5th Cir. 2004)
Affirmed that trial courts have discretion to control questioning that becomes argumentative or harassing.
| Argumentative | Leading |
|---|---|
| Attorney makes own argument | Attorney suggests the answer |
| Objectionable on direct and cross | Generally only objectionable on direct |
| No proper answer possible | Witness can answer yes or no |
| Counsel is testifying | Counsel is directing testimony |
| Always improper | Permitted on cross-examination |
What makes a question argumentative during cross-examination?
A question is argumentative when the attorney is making an argument or stating their own conclusion rather than seeking information from the witness. It involves badgering or attempting to get the witness to agree with the attorney's characterization.
Is the argumentative objection only applicable during cross-examination?
While most common during cross, argumentative questions can occur during any phase. The court has broad discretion under FRE 611(a) to control the mode of interrogation.
How does an argumentative question differ from a leading question?
A leading question suggests the answer but still seeks a response. An argumentative question is the attorney testifying or making a closing argument disguised as a question, challenging the witness to agree with an inference.
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