SPECULATION (S)

FRE 602

Any question or answer that is characterized as a “guess” or mere conjecture is objectionable on the basis of speculation. Speculation as to what could have happened in a case is of little probative value. Questions calling for the witness to “speculate” about certain events or evidence are inadmissible. Similarly, answers that are not grounded in first-hand information from personal knowledge are inadmissible.

An objection based on Speculation indicates that regardless of how much foundation may be attempted to be laid, a witness could never answer the question.

Often times, a speculation objection will also call for a lack of foundation objection, and vice versa.

Examples

• “How many rebels thought the same way you did?”
• “Was everyone paying attention in the theatre?”
• “The success of a murder like this required intimate knowledge of Ford’s Theatre, wouldn’t you agree?”
• “Is there intelligent life in the Vega Star System?”

FRE 602. Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

Summary

The Speculation objection falls within the realm of competency for a witness, since a witness can only be competent to testify if he/she is testifying about things that are within the witness’s own personal knowledge. Speculation, by definition, is absent of personal knowledge.

However, the required threshold showing to the judge that a witness possesses the requisite personal knowledge is low. The rule states that only enough personal knowledge “to support a finding” by a rational juror is required, even if the judge believes the witness does not possess the requisite personal knowledge.

Speculation and lack of foundation can often be used interchangeably. However, some practitioners believe that the objection of speculation should only be used for questions or answers where no possible foundation could be laid under any circumstance. For example, the examining counsel asked the witness, “What was everyone in the theatre thinking about at that time?” No matter what, foundation could never be laid for the witness to accurately answer that question based on personal knowledge. Indeed, the only way the witness could answer that question properly without triggering a speculation objection is if the witness could read the minds of every single person in the theatre at that exact time. In this instance, the objection of speculation would be more proper than the objection of lack of foundation because although foundation is absent, no foundation could ever be laid to properly answer the question. Therefore, the question and answer call for pure speculation.

On the other hand, assume examining counsel asked, “How full was the theatre that night?” The witness could properly answer this question if foundation had been laid previously that placed the witness at the theatre on that night. Once foundation is laid that she attended the theatre that night and sat in a viewing box where she could visibly see the majority of the theatre sections, then she can properly answer this question with her personal knowledge. However, if foundation is not laid, then her answer lacks foundation. Additionally, because it lacks foundation, it is speculative at the time of asking. Therefore, either lack of foundation or speculation could be used as a proper objection in this situation.

Case Law (Speculation)

• U.S. v. Wilkens, 742 F.3d 354 (8th Cir. 2014) (evidence which is vague and speculative is not competent proof and should not be admitted into evidence)
• Chapa v. U.S., 497 F.3d 883 (8th Cir. 2007) (testimony about what action witness would have taken if she had known grandchild was being abused properly excluded as speculative)
• Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004) (hypothetical question called for speculation)
• Athridge v. Aetna Cas. and Sur. Co., 474 F. Supp. 2d 102 (D.D.C. 2007) (testimony by witnesses as to what they would have done is purely speculative)
• Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991) (opinions and inferences must be grounded in observation or other first-hand personal experience and may not consist of flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience)