Hypothetical Questions Revisited
| Jurisdiction | Colorado,United States |
| Citation | Vol. 7 No. 11 Pg. 1921 |
| Pages | 1921 |
| Publication year | 1978 |
1978, November, Pg. 1921. Hypothetical Questions Revisited
The following article may be considered an epilogue to a previous article written on the subject entitled "The Use of Hypothetical Questions in Criminal Cases."(fn1) It is prompted by the recent Colorado Supreme Court decision of People v. Reynolds.(fn2) Reynolds, because of its impact in the area of objections, merits special treatment.
It is to be noted at the outset, that this author was one of the prosecutors in the Reynolds case and, although he may not necessarily agree with said decision, will attempt to present the propositions contained therein as they pertain to hypothetical questions in as objective a fashion as possible. No attempt is made to criticize the Colorado Supreme Court nor in any manner to infer that the principles of law enunciated in said decision are unsound. On the contrary, this article was written to acquaint the practitioner with the law on the previously unsettled issue in Colorado as to whether or not the objecting party has the duty to supply the material omissions in a hypothetical question when opposing counsel has failed to do so.
The general rule is that a hypothetical question must include material facts essential to a fair opinion by the expert.(fn3) In addition, an objection to a hypothetical question is properly sustained where the question omits material facts whose existence is undisputed.(fn4) The purpose of this requirement, of course, is to insure that the expert's opinion will be based upon the issues to be decided by the trier of fact.(fn5)
Moreover, a hypothetical question must assume all facts which are material to the proposition intended to be established by the answer.(fn6) It has been held that any omission of a material fact destroys the probative value of the opinion.(fn7) Although a hypothetical question need not always include all undisputed facts,(fn8) any undisputed fact which is material and important to the formation of a fair, intelligent and sound opinion must be included.(fn9)
Prior to Reyn...
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