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How is a loaded question dealt with in a legal, or legalistic, context?

Is there particular language which is typically employed, or is there a strategy which is particularly effective?

The specific example would be of the form "when did you stop beating your wife?" The challenge being to prove a negative. Aside from asserting the negation as fact, how is the false premise embedded in the accusation best disputed?

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    Version 1: how to trap a witness with a leading / loaded question; version 2: how to detect and combat such a question, if you're not the person asking. Which are you asking about. Do you mean while under oath, or otherwise? – user6726 Jan 29 '18 at 1:43
  • Version two. Not sure about oath, but truthfully. – Thufir Jan 29 '18 at 1:45
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The first step is to be able to identify the presupposition, which is a claim that must be assumed to be true for the question to make sense. For instance, "Is the present king of France bald?" assumes that there is a present king of France, and that in fact is false. Such a blatant example is hard to miss (if you speak English), but a less obvious presupposition can be found in the question "When did you arrive at your subjective conclusion about the accused". Regardless of the time, answering the question accepts that the conclusion is subjective (not a god thing for an expert witness to be saying). If you want to study linguistic semantics, there are a number of ways to identify presuppositions: to keep it on topic for LSE, I'll just summarize it by saying you have to acquire the analytic skills for identifying presuppositions. The technical tests are probably not useful to a panicked witness being cross-examined. The Wiki on presupposition might be useful, for example pay attention to the negation test ("My car exploded" and "My car didn't explode" both presuppose that I have a car).

If you can identify the presupposition, you can simply answer "I have never beat my wife", or "My conclusion was based on objective scientific tests", and ignore the literal question that was asked. They can still rephrase and ask an unloaded version of the question. If you are forced to limit responses to yes and no, you may need to address the judge to explain why you can't just say "yes" or "no", or blurt out the explanation before you are instructed to stop talking (the judge would probably allow the explanation if it's obvious that you're addressing a presupposition problem).

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If you’re talking about this in the context of a witness being asked questions in a courtroom, then you should consider “leading questions.”

A leading question is one that essentially “puts words in the mouth of” the witness. The question itself contains the desired information or acts as a prompt toward certain information. In general, you can’t ask your own witness a leading question, but you may do so toward a hostile witness on cross examination.

An example would be:

Leading: “Didn’t the defendant appear to you to be speeding?”

Proper: “How fast did the defendant appear to be going?”

In terms of how such questioning is dealt with, it is up to the opposing counsel to properly object to a leading question should he or she deem it necessary/helpful to do so.

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The objection to be made by a lawyer would be "lack of foundation", if the untrue assumption hasn't been established, or "misstates the evidence" if the assumption has arguably been discussed in prior testimony.

A witness could also answer in the form, "That question doesn't make sense to me because . . . ."

  • Depending on the circumstances, I would usually assume the objection would most likely be "leading." But of course many "misstates the evidence," "assumes facts not in evidence," "argumentative," and some "confusing / misleading / ambiguous" objections, are made in response to questions which are, in fact, leading. – A.fm. Jan 30 '18 at 2:22
  • @A.fm. A question like that wouldn't be asked by his own lawyer, it would be asked on cross-examination or on a direct treated as a hostile witness, both of which would allow leading questions. – ohwilleke Jan 30 '18 at 2:30
  • Where does it indicate whose lawyer we are talking about? OP stated he is looking to detect and combat such a question while he is not the one asking. Seems as though "leading" would be the easiest objection, especially due to a relative proclivity a judge would have to overrule a "misstates the evidence" objection. – A.fm. Jan 30 '18 at 2:36
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    @A.fm The reality is that only lawyers who are allowed to exam by leading questions ask misleading false premise questions like that one. So, usually, leading isn't an available objection when a question like that one is asked. – ohwilleke Jan 30 '18 at 2:38
  • False premise. Exactly: embedded within the question or assertion. This isn't with lawyers, hence the "pseudo" in the the title. Perhaps faux would be more descriptive. @ohwilleke – Thufir Jan 30 '18 at 19:14

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