A question is argumentative if it is rhetorical in nature, meaning its effect is in the question itself, not in its answer. The question is designed to be an argument to the jury and not a solicitation of relevant facts. Example: Doesn’t it seem convenient that by the time the police arrived, the person you say was actually driving the vehicle had walked away from the scene of the accident?
The question calls for a yes or no answer. The question does not begin with a “who,” “what,” “where,” “when,” “why” or “how”? Essentially, the attorney tells the witness the answer to the question while the question is being asked. Example: Isn’t it true that you had intended to hurt the victim in this case?
Calls for Speculation/Lack of Personal Knowledge
The question asks for an answer that is not within the personal knowledge of the witness. Example: What was the victim thinking when you attacked him?
Misstates the Facts/Assumes Unproven Facts
Question assumes that facts are true, when those facts have no evidentiary support. Example: Why do you think that the victim wanted you to leave him alone? (This assumes the inquirer cannot prove that the victim wanted the witnesses to leave him alone.)
The question calls for an answer that is a statement made out of court and offered to prove that that statement is true. Example: What did the police officer say about the car accident to the driver?
The question calls for an answer that has no tendency to prove or disprove a material fact that is in dispute.
The question calls for an answer that is highly inflammatory and emotional and is marginally relevant or not relevant such that the value of its relevance is substantially outweighed by the prejudice it would cause. Example: Isn’t it true that you were cheating on your wife at the time of the crime?
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Scott Hullinger, Esq.
Criminal and Civil Attorney