The Use of Hypothetical Questions in Criminal Cases
| Publication year | 1977 |
| Pages | 610 |
1977, April, Pg. 610. The Use of Hypothetical Questions in Criminal Cases
Opinions of experts, in order to be admissible in evidence, must be based upon either: (1) facts within their own knowledge; or, (2) hypothetical questions embracing facts supported by the evidence and relating to the particular matter upon which the expert opinion is sought. The most difficult method of eliciting an expert's opinion is the hypothetical question.
The lack of familiarity with hypothetical questions and the fear of the inevitable objections thereto have caused even the most skilled trial attorney to shun them. Because the hypothetical question is a most useful tool and sometimes indispensable, it is hoped that this article will serve as the key to unlock the door to the mysterious world of the "hypothetical question."
A hypothetical question is a form of question framed in such a manner as to call for an opinion from an expert based on a series of assumptions claimed to have been established as fact by the evidence in a case.
It is imperative that the practitioner be familiar with the following general rules:
1. The hypothetical question must be framed in such a way as to require the expert to state: (a) whether he is able to form an opinion based on the recitals; and, (b) if so, his opinion.
2. The expert may testify as to the basis of his opinion and it is error to refuse to permit him to state the reasons for his opinion.
3. There must be sufficient facts in evidence upon which to base an opinion and such facts must be contained in the hypothetical question. An opinion cannot be based on pure conclusion.
4. A hypothetical question is improper if it either (a) omits a material fact in evidence essential to the formulation of a rational opinion; or, (b) includes a material fact or assumption which is not supported by the evidence.
5. An opinion based on facts in evidence cannot be admitted unless the particular facts are specified in the hypothetical question.
6. The purpose of a hypothetical question is to enlighten the jury and to enable it to reach a proper verdict.
7. The requirement that a hypothetical question contain a recitation of all the material facts presented in the record is based upon the premise that a jury must
determine the weight to be given to the opinion and, without knowledge of what facts the expert accepts as true, an evaluation of his opinion is impossible.
8. A hypothetical question can be based upon a state of facts which the evidence supports, although on the point involved there may be conflicting evidence.
9. It is only the omission of material, uncontradicted facts which renders a hypothetical question incompetent. Where there is a conflict in the evidence, the opposing party may base a hypothetical question upon a different set of facts.
10. A hypothetical question must always reflect the true state of the material facts in evidence.
11. A hypothetical question may not be based on hearsay testimony.
12. A hypothetical question is improper where it is speculative, pointless or repetitious.
The main purposes and functions of hypothetical questions are: (1) to allow a qualified expert witness to state an opinion based on facts not within his personal knowledge; (2) to reduce the speculative nature of facts so as to enable the jury to better understand the consequences;(fn1) (3) to provide "a logical and natural procedure through which scientific inquiry may be made;"(fn2) and, (4) to provide a lucid summary of all favorable points in the questioner's case.
The ultimate test for validity of a hypothetical question, as to both form and content, is fairness.(fn3) "Fairness" is generally considered a matter resting within the sound discretion of the trial court, whose ruling thereon will not be reversed in the absence of a showing of an abuse of discretion.(fn4)
A hypothetical question must include material facts essential to a fair opinion by the expert.(fn5) Objections to hypothetical questions have been held properly sustained where they omitted material facts whose existence were undisputed.(fn6) The purpose of this requirement is to insure that the expert's opinion will be based upon the issues to be decided by the trier of fact.(fn7)
A hypothetical question must assume all facts which are material to the proposition intended to be established by the answer.(fn8) The omission of a material and undisputed fact destroys the probative value of the opinion.(fn9) A hypothetical question need not always include all undisputed facts.(fn10) However, any undisputed fact which is material and important to the formation of a fair, intelligent and sound opinion must be included.(fn11)
A hypothetical question must be based upon facts in evidence(fn12) and any question that assumes facts not in evidence is improper.(fn13) Objections to hypothetical questions have been held to have been properly sustained where they included facts as to which there was no evidence.(fn14) Also, it has been held not to be error for the trial court to refuse to permit counsel to propound to an expert a hypothetical question assuming facts not in evidence.(fn15)
Hypothetical questions may be based on assumptions of what the evidence tends to prove where the assumptions "have a reasonable basis in the evidence."(fn16) In propounding hypothetical questions to experts, counsel is not confined to facts admitted or absolutely proven, but may assume for the purposes of the question, any statement of fact which
the evidence tends to establish.(fn17) It is to be kept in mind that rational inferences deductible from testimony, as well as positive evidence itself, may form...
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