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
§11.100 Is It Admissible? 11-2
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. Tes-
timony 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 like-
wise 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 approxima-
tion may be proper as long as it has been dem-
onstrated 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 specu-
lative. 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
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 specula-
tive 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.
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 per-
sonal 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
B. “The witness has demonstrated
knowledge with respect to this
particular subject matter.”

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT