ASSUMES FACTS NOT IN EVIDENCE (G)

FRE 611(a)

An objection based on Assumes Facts Not in Evidence indicates that the attorney is asking a question, but some information contained in the question has not yet been established in the trial through a particular witness. The purpose of this type of question is to usher in facts before the jury that have yet to be proved or may never be proved during trial. The classic example of this type of question is “When did you stop beating your wife?” Regardless of how the witness answers that question, the implied assumption is that the witness beats his wife, when no evidence has been introduced to prove that assertion. Questions that assume facts not in evidence are objectionable on both direct and cross examination

Examples

• “Mr. Booth, when did you stop kicking puppies for a hobby?” (when this witness has never admitted that he ever kicked puppies during his life)
• “In spite of your drinking that night, you claim you remember your husband was sitting to your left?” (and testimony regarding the witness drinking that night has not been introduced)
• “How much did your flu diminish your ability to observe events accurately on April 14th?” (and testimony about the witness suffering from the flu has not been introduced)
• “At the moment when you and the audience erupted into laughter, you were still oblivious to the murderous plot of George Atzerodt?” (and nothing has been established to show that the witness had any knowledge of an alleged “murderous plot of George Atzerodt”)
• “What is your response to the papers that reported you viewing President Lincoln as ‘the head of the Union Beast’?” (and no evidence has been introduced to show that the papers ever said that)

FRE 611

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Summary

Rule 611 deals generally with the scope of a trial judge's authority to exercise reasonable control over the trial proceedings, including the mode of interrogating witnesses and presenting evidence. The rule contemplates flexibility and discretion so that the truth will be ascertained and the interests of the public and the parties promoted. In short, the three main objectives of Rule 611 are to discover the truth in an efficient manner, avoid wasting time, and protect the witnesses from improper examination questions.

Possible Objections under Rule 611: Argumentative, Compound, Narrative, Leading, Mischaracterization, Nonresponsive, Asked & Answered, Vague, Assumes Facts not in Evidence

Although the phrase “Assumes Facts Not in Evidence” does not appear anywhere in the F.R.E., the court has discretion to sustain this objection under Rule 611. Furthermore, an objection under Rule 103(a) may also be permissible if the assumed facts would be inadmissible even if they were not “assumed.” Rule 103(a) states that inadmissible evidence should not be “suggested to the jury by any means.”

The ABA Standards for Criminal Justice provide that “[a] prosecutor should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.” This objection is meant to prevent an attorney on cross-examination from sowing the seeds of a fictitious accusation in the minds of jurors by framing questions in a certain way that inject information not yet introduced.

Case Law

• U.S. v. Abair, 746 F.3d 260 (7th Cir. 2014) (government lacked good faith basis for believing defendant lied on tax and school aid forms)
• U.S. v. Taylor, 522 F.3d 731 (7th Cir. 2008) (when sidebar revealed proposed questions were just shots in the dark without good faith basis, court properly barred them)
• Friese v. Mallon, 940 S.W.2d. 37, 41 (Mo. App. 1997) (“When an objection is made to a hypothetical question on the ground that it assumes facts not in evidence, counsel so objecting must point out what matters not in evidence are assumed in the hypothetical.”)
• U.S. v. Adames, 56 F.3d 737 (7th Cir. 1995) (questions about alleged involvement in murder properly excluded when counsel failed to provide good faith basis for them)
• U.S. v. Elizondo, 920 F.2d 1308 (7th Cir. 1990) (when prosecution asks damning questions that go to central issue in case, those questions must be supported by evidence, available or inferable)
• U.S. v. DeGeratto, 876 F.2d 576 (7th Cir. 1989) (government lacked sufficient evidence to permit a good faith belief that defendant knowingly helped a prostitution operation)
• Williams v. Mensey, 785 F.2d 631 (8th Cir. 1986) (counsel should refrain from displaying a disputed document during trial to the jury in a way that suggests the content of the document is true when that document has not yet been introduced into evidence)
• U.S. v. Davenport, 753 F.2d 1460 (9th Cir. 1985) (new trial ordered where government failed to establish factual predicate for question about planning other bank robberies)