Speculative Questions

• Author: Ashley S. Lipson
• Pages: 243-262

11-1

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.

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 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.

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 per-

sonal 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.”