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Federal Evidence • Examination of Witness
EVID#008
Legal Definition
This means the facts that are being presented to the witness are presumably not yet in evidence and, therefore, the witness cannot properly answer the question since those facts have not been put before the jury.
Plain English Explanation
This rule prevents lawyers from asking witnesses questions that assume facts that haven't been qualified as evidence yet. The purpose is to avoid biasing the witness with information the jury hasn't heard, or making them speculate based on facts not yet proven. For example, if a lawyer asks "Did you see Bob with the murder weapon?" but no evidence has yet shown there was a murder weapon, the lawyer is assuming a fact not yet in evidence. The lawyer must first introduce evidence to establish there was a murder weapon before asking the witness about it. This ensures witnesses respond based only on facts the jury has heard. This way, witnesses aren't pressured to agree with unproven or untrue statements, and the jury isn't misled by baseless assumptions.
Hypothetical
Hypo 1: During a court case about a car accident, an attorney asks Bob, a witness, "What did you see the driver of the black van do at the scene?" Before any evidence of a black van being involved is presented. Sam, acting as a self-represented party, objects, "Objection. This assumes facts not in evidence about a black van and its driver's actions." Result: The objection is valid because it has not been established there was a black van involved or that its driver did anything at the scene.
