Speculative Questions

AuthorAshley S. Lipson
chApter 11
Speculative Questions
§11.100 Introduction
§11.200 Quick Explanation
§11.300 General Legal Analysis
§11.400 Lay Witnesses
§11.500 Experts and Existing Forms of Evidence
§11.600 Experts and New Forms of Evidence
§11.601 Frye Rule
§11.602 Fed. R. Evid. 702
§11.603 Daubert v. Dow - 1993
§11.604 Kumho v. Carmichael - 1999 Landmark
§11.605 Amendment to Rule 702
§11.700 Selected State Rules and Cases
11-219 Speculative Questions §11.300
1 No one, expert or otherwise, can know what another person is thinking. See S.E.C. v. Lipson, F.Supp.2d 758 (N.D. Ill. 1998).
§11.100 Introduction
A question that requires the witness to guess,
conjecture, or present information that he or she
does not actually possess is objectionable. Testimo-
ny should be based upon knowledge, not guesswork
or speculation.
§11.200 Quick Explanation
A question is speculative if, by its very nature, it
asks the witness to provide information that he or she
does not possess. A question is likewise objectionable
if it specifically requires the witness to speculate.
Questions that employ terms such as “guess,” “con-
jecture,” or “speculate,” are likely candidates for a
valid objection. However, a question calling for an
estimate or approximation may be proper as long as
it has been demonstrated that the witness has some
factual basis for presenting it. The answer might be
thought of as an “educated guess,” even though a
question that specifically used that term would prob-
ably fall on the objectionable side of the dividing line
between speculation and approximation.
As a rule, any question that asks the witness to
state what was, or is, in the mind of another indi-
vidual is automatically improper and speculative.
Mind-reading has never been established as being
scientifically acceptable.
1. Why do you suppose O.J Simpson took off
in the white Bronco?
2. What were Frank’s real feelings about fir-
ing Jim?1
3. Could you venture a guess as to the weight
of the subject Ford van?
The first question is speculative by its very nature.
No one knows what a person’s inner motives are other
than the person who actually formulated them.
The second question asks about another per-
son’s “feelings.” Such a question is speculative
because of its form. The witness could have proper-
ly been asked questions such as: “What was Frank’s
stated purpose for firing Jim?” or “What was the
reason given for Frank’s firing of Jim?” But no one
can know Frank’s feelings, except Frank.
It is the form of the third question that creates
the problems. Someone with relevant experience or
knowledge, such as an automotive engineer, might
be permitted to “approximate” the weight of a Ford
van. But any question that specifically calls for a
“guess” or “speculation” is objectionable.
Questions that ask witnesses to guess about
information that they do not personally possess. Ask
yourself, “How could this witness know the answer
to the question”? If not from personal knowledge or
hearsay, then speculation must be involved.
“Objection. The question calls for
A. “On the contrary, the question calls for
an estimate, which is admissible.”
B. “The witness has demonstrated knowl-
edge with respect to this particular sub-
ject matter.”
§11.300 General Legal Analysis
This objection is very closely related to the
Conclusion objection discussed in Chapter 3; the
two overlap and may be tricky to distinguish. For, it
often happens that a witness’ conclusions are based
upon speculation or guesswork. There is, however,
a difference between the two objections.
The speculation objection generally applies to
facts and events at the threshold of their introduc-
tion. Conclusions, on the other hand, most often
involve the opinions (right or wrong) that one might
be tempted to derive from those facts and events,
after they have already been properly established
(see Chapter 3). For example, if blood stains were
found on the person of an accused murderer, one

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