Sparked by this question: Can a judges decision to allow a matter to trial be appealed immediately, or only after the trial?

On appeal, the appellate court grants an over-comeable presumption correctness of judicial opinions on questions of fact, but not on questions of law. Would classification of an item in a specific legal category be a question of law, or a question of fact, e.g. would whether or not a specific item falls into a prohibited or restricted category be a question of law or a question of fact?

Some scenarios that I thought of that might affect the answer:

  1. Without any guidance from law or regulation

  2. With unclear definition in law or regulation

  3. With a clear definition in law or regulation that supports the judicial decision

  4. With a clear definition in law or regulation that supports the judicial decision

  5. With multiple definitions in law or regulation, some of which support and some of which (i.e. a choice of definitions to apply)

2 Answers 2


Not sure what you mean by "would wether[sic] or not a specific item fall into a prohibited or restricted category be a question of law or a question of fact?"

But if you're asking something like: "If someone is caught with drugs, when figuring out what class of drug it is, is it a question of law or fact?"

The answer is it would be a question of fact.

Whether something falls within or does not fall within a specific regulatory category is a question of fact. Evidence will have to be obtained to determine this.

A question of law never requires evidence (as in, exhibits), only legal argument. A question of law is something like: "Does it count as self defence if I am protecting not myself but someone else?" Lawyers will make submissions to the judge and the judge will be the one who answers the question of law.

In civil cases, all questions of fact are determined by the judge, in criminal cases it will be by the jury or magistrate.

An easy way to seperate them is this:

If the way to answer the question is by obtaining evidence, then its a question of fact ("Is this a drug? Let's obtain evidence about its chemical composition, Did the car drive faster than the speed limit? Let's find a video recording of it speeding")

If the answer is obtained through theory and researching previous cases, laws, and decisions by judges, its a question of law. ("Does a butter knife count as a weapon?" "When are you not in trouble for killing someone")

  • 1
    Would that it were so clear cut- many questions are of mixed law and fact.
    – Dale M
    Commented Aug 9, 2019 at 23:38
  • Yes, that is true. I would argue, however, that every mixed question of law and fact may be broken down into two or more questions of law or questions of fact. Commented Aug 10, 2019 at 2:55
  • 2
    Civil cases do in fact get Jury trials. In both civil and criminal trials, you can have bench trials (The Judge is both trier of law and fact). It is more common in civil trials as typically, the case relies on nuances that may cure the jurist of insomnia he or she wasn't aware of, so the decision to go to Bench is more convient. In Criminal trials, the decision to have a bench trial is the sole right of the defense, and it was famously used in the case against the Baltimore officers involved in Freddy Grey's death in 2015.
    – hszmv
    Commented Aug 12, 2019 at 13:05
  • I agree with your first point, but am unsure about your latter point that "in criminal trials, the decision to have a bench trial is the sole right of the defense". This implies that someone on trial for say, murder, may elect to have a bench trial rather than trial by jury. Although I am not qualified in the US, I dont believe this is the case. Commented Aug 12, 2019 at 22:27
  • @ShazamoMorebucks: This is indeed the case in the US, with some caveats. In the US, the right to a jury trial is granted to the defendant, regardless of charge, and can universally be waived in favor of a bench trial; depending on the jurisdiction, the prosecution may be consulted or it may be at the sole discretion of the defense (though this decision does have to be made before a jury is empaneled).
    – sharur
    Commented Aug 4, 2021 at 18:36

So a question of law would be "what do our laws say about the crimes charged?" And a question of fact is "does the evidence support that in this specific scenario, the law was broken?"

Suppose in a trial where Mr. Jimmy Jones was on trial for the Murder of Alice. Bob takes the stand as witness for the prosecution and the prosecutor asks Bob, "What did Charlie say about Alice and Jimmy?"

"Objection!" Shouts Jimmy's lawyer, point enthusiastically, "Hearsay!"

Now, at this point, Bob has not answered the question and thus has not testified (which is evidence) and the lawyers will meet with the judge to discuss the objection. In Law, Hearsay is Testimony for someone else. The defense is as asking the judge to stop this line of questioning because the Prosecutor should have asked Charlie about Alice and Jimmy, not Bob and that the prosecution should not be allowed to introduce this evidence in this way. Jimmy has a right to hear Charlie's statement from the horses mouth. There are a few exceptions to hearsay that would make this the best way to testify and the prosecutor would likely argue to one of these exceptions.

Whether or not Bob can answer this question is a question of law. Bob's response if allowed is will be used by the jury to answer the question of fact ("Did Jimmy commit the act of murder aka unjustified homicide?"). The jury might not know what hearsay is (being a pool of 12 people who are not smart enough to get out of jury duty) but they will understand that the judge told them not to consider Bob's answer when answering the questions of fact in the case.

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