GREGORY CHANDLER ON CROSS-EXAMINATION HYPOTHETICALS

In cross-examinations, hypotheticals are sometimes used. In United States v. Kellogg, 510 F. 3d 188 (3d Cir. 2007) the Court affirmed a mail fraud conviction against the owner of an environmental laboratory who had been charged with falsely certifying that certain tests had been conducted. The Court found no abuse of discretion when a defense character witness was asked whether his opinion that the defendant was a

law-abiding citizen would be different if the witness knew that lab reports misstated the analytical tests used. The Court noted that a guilt-assuming hypothetical is irrelevant in testing a character witness' reputation testimony, but for opinion testimony "[s]uch evidence may aid in the jury's ultimate credibility determinations and in deciding how much weight to give to a defendant's character evidence."

While such a question "may prove problematic if it arises in circumstances that implicate the presumption of innocence or otherwise undermine due process,...there is nothing inherent in guilt-assuming hypotheticals, in the abstract, that makes them unfairly prejudicial, let alone so prejudicial as to constitute a per se violation of due process." One judge thought that the particular question asked was not sufficiently hypothetical.

GREGORY CHANDLER, Attorney at Law