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It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing unless the lawyer has some basis for asking those questions.

For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash.

Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here in civil cases than criminal, where a defendant's Sixth Amendment rights might complicate the question.

  • Are you asking about the "defendant" or a "random witness"? Generally, the defendant isn't random... – sharur Oct 19 '18 at 20:28
  • I'm asking about any witness, including a defendant. – bdb484 Oct 20 '18 at 14:14
  • Leading questions are never allowed, but suggestions without evidence are permitted (though often ineffective). Not sure which you are asking about, but either way I would imagine the judge would insist that the suggestion be put to the witness directly. – Tim Lymington Oct 20 '18 at 17:37
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    Why do you say leading questions are never allowed? – bdb484 Oct 20 '18 at 19:42
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    Leading questions certainly are allowed under certain circumstances, such as on cross exam. – A.fm. Oct 22 '18 at 10:20
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It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing, unless the lawyer has some basis for asking those questions.

This is not true. A lawyer is allowed to guess and ask such a question, although if it assumes a fact not in evidence it could be objected to for lack of foundation.

For example, the opposing counsel could object if the lawyer asked, "After you drank twelve beers at BigTown Sports Bar, isn't it true that you got into a car and drove away?", because there would be no evidence in the record at that point that he drank twelve beers at BigTown Sports Bar.

For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash.

Sure he could. He could ask, "Isn't it true that you were drunk at the time of the crash?" There is nothing objectionable about that question.

If the answer was "no", however, and the lawyer had nothing else to back up that suggestion, the question might not help the case, but the question is proper. Sometimes a lawyer just has a hunch and goes with it, and sometimes the hunch is right.

Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here with civil cases than criminal, where a defendant's Sixth Amendment rights might be complicate the question.

It isn't codified because such a rule does not exist.

There are some special rules that apply to prosecutors, who are ethically required to bring criminal cases only when they believe that the cases are supported by probable cause. But, that rule applies at the case level and not at the question by question level.

Lawyers are also prohibited, especially in criminal cases, from making statements asserting personal knowledge of the credibility of a defendant or witness. This is because this transforms the lawyer from an advocate to a credibility witness. But, the lawyer can ask a judge or jury to find that someone is not credible in closing argument based upon X, Y and Z evidence presented at trial.

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The requirement of a good-faith basis for impeachment and other assertions in cross-examination is rooted in common law principles and codified in many jurisdictions' rules of evidence.

Federal Rule of Evidence 607, for instance, is generally interpreted to require "a good faith basis on the part of examining counsel as to the truth of the matter contained in questions":

Innuendoes and insinuations of inadmissible or nonexistent matters are improper. Thus counsel on cross-examination may not ask Bob, “Isn't it true that Piagano's is located on Birch?” without having a reasonable basis in fact for believing that Piagano's is in fact on Birch and not Apple. Nor may counsel on cross-examination inquire of Bob whether his wife was related to the plaintiff absent a good faith basis. Note that the requirement of a good faith basis applies only when the cross-examiner is effectively asserting in the form of a question the truth of a factual statement included within the question.

4 Handbook of Fed. Evid. § 607:2 (8th ed.)

The rule is recognized in most jurisdictions -- sometimes very broadly with respect to any subject of cross-examination, but sometimes limited specifically to specific instances of untruthfulness, other "past acts" evidence or other categories of evidence.

Sometimes it is explicitly embedded in the state's rules of evidence:

  • Ohio Evid.R. 607(B): "A questioner must have a reasonable basis for asking any question pertaining to impeachment that implies the existence of an impeaching fact."
  • Maryland Rule 5-608(b): "... The court may permit the inquiry only if (A) the questioner, outside the hearing of the jury, establishes a reasonable factual basis for asserting that the prior instances occurred or that the convictions exist."
  • Massachusetts Guide to Evidence, Section 611 (Notes): "Cross-examination must have a reasonable and good-faith basis."

In other jurisdictions, the requirement is a judicial creation, derived from the rules of evidence, from the court's inherent power to control the conduct of trials, or from another source:

  • "It was prejudicial error for the trial court to permit cross-examination of defendant as to prior criminal acts, for the purpose of impeaching his credibility, without ascertaining whether the prosecutor had a reasonable basis for his questions and was therefore acting in good faith." People v. Korn, 40 A.D.2d 561, 561, 334 N.Y.S.2d 115, 116 (1972)
  • "Where counsel elects to attack the credibility of a witness on cross-examination through questions designed to impeach on collateral matters, he impliedly represents to the court that he is prepared to dispute a denial. In order to ask such questions, the attorney must have a reasonable basis for believing that the answer will be relevant, that is, impeaching. Without information upon which to form a reasonable belief that the witness's response will be impeaching, reasonable basis for asking a question which is intended to degrade the witness does not exist. Indeed, if the attorney has no reasonable basis to believe the question is relevant to the case and the question degrades the witness, asking it violates Disciplinary Rule DR 7-106(C)(2) of the Code of Professional Responsibility." Marsh v. State, 180 Ind. App. 175, 387 N.E.2d 1346, 1348, superseded, 271 Ind. 454, 393 N.E.2d 757 (1979)
  • "The trial court does have a right to inquire as to whether the cross-examiner has a reasonable basis for asking the questions as to prior inconsistent statements... The purpose of such an inquiry is to make sure that the cross-examiner is not merely taking a random shot at a reputation imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury box." State v. Hilling, 219 N.W.2d 164, 171 (N.D. 1974)
  • "It is unfair to allow -- and we cannot countenance -- questions, such as that propounded here, which can cause a doubt in the jury's mind as to the prosecutrix' credibility when there is no reasonable basis in fact for the interrogation." People v. Simbolo, 188 Colo. 49, 52, 532 P.2d 962, 963–64 (1975)
  • I would note that Federal Rule of Evidence 607 says nothing of the kind by its terms. – ohwilleke Oct 23 '18 at 20:17
  • That's definitely correct. As far as I can tell, though, it's universally treated as imposing that requirement, as are most state parallels. I'm guessing you're in California? It's the only state that my research suggested may not impose this requirement. – bdb484 Oct 23 '18 at 20:37
  • I'm in Colorado and have never seen any mention of that requirement or seen it imposed or utilized. – ohwilleke Oct 23 '18 at 20:41
  • Interesting. I saw a couple CO cases when I was researching, but it sounds like it just doesn't come up that often. In Ohio, at least, it's a well-known rule, but I didn't come across a single person who could articulate where it comes from, hence the question. – bdb484 Oct 23 '18 at 21:05
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    FWIW, not from me. – ohwilleke Oct 24 '18 at 3:20
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Actually, the plaintiff’s lawyer could. He may not choose to. Also, the court may not allow him to. Although he could. And it could.

See:

Federal Rules of Evidence Rule 611


Edit to include more detail, as suggested in the comment:

For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash.

Actually, the plaintiff's lawyer could. According to FRE 611(c), leading questions should be allowed "(1) on cross examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party."

However, he may choose not to if it does not advance his case.

Also, the court may not allow him to... but, it could. According to FRE 611(a), "The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence...

If it determines a line of questioning is way off base, FRE 611(a)(3), providing a reason why a court would exercise such control over the examining of witnesses, lists "[to] protect witnesses from harassment or undue embarrassment." Arguably, if you were implicated as being a drunk driver when, in fact, you were not, that could constitute harassment or undue embarrassment.

Expanding on both what the lawyer may ask as well as what control the court may exercise over the questioning, FRE 611(b) says that "[c]ross-examination should not go beyond the subject matter of the direct examination and matters affecting witness's credibility. The court may allow inquiry into additional matters as if no direct examination."

So, the plaintiff's lawyer could cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash. Why not? @bdb484, in the answer your provided yourself, it appears you are putting too much weight onto the idea of the lawyer having a reasonable basis to believe something. This is a low bar. If you were at a bar, left the bar, and got in a crash, there would almost certainly be a reasonable basis to inquire as to whether you were drunk.

The rule you cite includes,

Innuendoes and insinuations of inadmissible or nonexistent matters are improper.

Note that it does not bar those insinuations based on evidence not admitted at the trial. Rather, it bars those insinuations based on evidence that can not be admitted at the trial.

  • This isn't detailed enough, you should at least look at which rules might apply from your link. A3 in particular appears to be what the court might cite if they prohibited the line of questioning. The question also mentions leading questions, so going over how the rules in part C apply would be helpful. – IllusiveBrian Oct 21 '18 at 5:01
  • It seems like this is arguing against the hypothetical rather than engaging it. I'm asking about when there is no reasonable basis for an assertion of drunkenness ("the absence of any evidence indicating that alcohol was involved"), and you're just saying that there is a reasonable basis for the assertion, based on a fact that you invented ("if you were at a bar"). – bdb484 Oct 23 '18 at 23:46
  • I'm not arguing against the hypo, but rather against the central premise of your question: that there is a rule on this topic. @ohwilleke has provided you the most correct answer among the answers appearing here. If, for some reason, you are determined to couple this notion with a "rule," your best bet would probably be that one may object to question(s) for which no foundation has been laid in evidence. – A.fm. Oct 26 '18 at 20:39

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