Hypothetically Summing Up Case Improper

The prosecution may not ask a hypothetical question to an expert that would ask them to assume a piece of disputed evidence as fact.

State v. Simms, 2016 BL 78140, N.J., No A-14, 3/15/16

     The New Jersey Supreme Court ruled that experts are forbidden to summarize disputed evidence or give opinions on ultimate issues that most jurors could resolve without any help. It also indicated that prosecutors may not use an expert's hypothetical as a proxy for closing argument.

     "A hypothetical question in a drug case should not be used as a prosecutorial tool to sum up an entire case in a single question for the purpose of eliciting an expert's opinion on a defendant's guilt," the court ruled. In this case, the hypothetical question was improper because it called on the expert to assume facts that weren't established through testimony.

http://www.bloomberglaw.com/public/desktop/document/State_v_Simms_No_A14_September_Term_2014_2016_BL_78140_NJ_Mar_15_?1459440312