Speculative Questions

• Author: Ashley S. Lipson
• Pages: 231-248

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C 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

§11.100 Is It Admissible? 11-2

§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.

Testimony 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,”

“conjecture,” 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

probably 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

individual is automatically improper and speculative.

Mind-reading has never been established as being

scientifically acceptable.

EXAMPLES OF SPECULATIVE

QUESTIONS:

1. Why do you suppose O.J Simpson took off

in the white Bronco?

2. What were Frank’s real feelings about

firing 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 person’s

“feelings.” Such a question is speculative because

of its form. The witness could have properly 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.

WHAT TO LOOK FOR:

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.

OBJECT AND RESPOND

OBJECTION:

“Objection. The question calls for

speculation.”

POTENTIAL RESPONSES TO

OBJECTION:

A. “On the contrary, the question calls for

an estimate, which is admissible.”

B. “The witness has demonstrated

knowledge with respect to this

particular subject 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 introduction.

Conclusions, on the other hand, most often involve

the opinions (right or wrong) that one might be

tempted to de rive 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 might,

in the absence of test results, guess or “speculate”

about whether or not they actually linked the

accused to the victim. However, after tests reveal

that the stains do in fact match the victim’s blood