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F 2.82 n1 Hypothetical Questions: Improperly Placing Burden On Defendant To Prove Hypotheticals.
CJ 2.82 requires that the party who asks an expert a hypothetical question prove the truth of the assumption and if the assumption is not proved, the jury is to determine the effect of that failure of proof on the value and weight of the expert opinion. People v. Frye (98) 18 C4th 894, 960 [77 CR2d 25] rejected an argument that this instruction shifted the burden of proof to the defendant in violation of due process, but the matter has not been resolved in federal court.
F 2.82 n2 Hypothetical Questions: Improper If “Divorced From The Evidence.”
“Although the field of permissible hypothetical questions is broad, a party cannot use this method of questioning a witness to place before the jury facts divorced from the actual evidence and for which no evidence is ever introduced.” (See People v. Boyette (2002) 29 C4th 381, 449 [127 CR2d 544] [prosecutor “crossed the line” separating permissible from impermissible hypothetical questioning].)