New York City Personal Injury Law Blog

Question Assumes Facts not in Evidence

Posted on May 18, 2015 in Legal Terminology

Raising the Objection

In a personal injury lawsuit such as medical malpractice case, accident case, or even a wrongful death case the defense attorney can jump up during the trial, yell out an objection, and provide the reason that question assumes facts not in evidence. The defense lawyer does not like the way the question was asked of a particular witness by the plaintiff’s lawyer.

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Presenting evidence comes with its own style, difficulty, and finesse.

By raising this objection, the defense is trying to say that the question is hypothetical and it assumes certain facts to be true. The witness is being asked to agree or disagree with a statement that is based on certain facts. The defense does not like the facts that are being raised by the plaintiff’s attorney because they are not in evidence.

The other Attorney will be Given a Chance to Explain

In instances where the defense raises such an objection, the judge will usually give the plaintiff’s lawyer the opportunity to explain why he believes those facts are in evidence, or they may be coming into evidence through another witness’s testimony, or those facts might have come in through pre-trial testimony that will be entered into evidence later on. In many instances, the judge will allow the witness to answer the question based upon the hypothetical question asked by the attorney.

Additionally, in all likelihood the judge will also give the jury certain instructions. For instance, the judge will say, “Ladies and gentlemen of the jury, you have heard a hypothetical question, which means the attorney is asking the witness to assume certain facts to be true. If you find that those facts are true, then you are permitted to give that witness’s testimony whatever weight you believe it deserves. However, if you find those facts to be untrue, then obviously you are permitted to disregard that witness’s testimony”.

A Valid Objection

The objection of question assumes facts not in evidence is a valid one, and can be raised by either attorney, when he is asking hypothetical questions to a witness based upon certain facts that have not yet been presented as evidence in the trial. There could be different reasons for these facts not to be in evidence, and judge will give the attorney the opportunity to explain the reason in order to counter the objection.

If the lawyer says that such facts will be presented as evidence later during the course of the trial, then the judge might allow such a line of questioning. However, the judge will still instruct the jury about the matter, and tell them to disregard the witness’s testimony in case these facts are not presented into evidence later.

The judge might also sustain the objection of question assumes facts into evidence, if he feels that such facts are not going to be presented, or such facts are going to be disallowed to be presented as evidence later during the trial. Therefore, this objection might be sustained or overruled, and it will mainly depend on the explanation given by the attorney.

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