§ SECTION 154 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

Indecent and scandalous questions

The court can shut them out. The court may forbid questions it regards as indecent or scandalous — even if they have some bearing on the case — unless they relate to the facts in issue or to matters needed to decide them.

How to read Section 154

The court may disallow indecent or scandalous questions — even if they are somewhat relevant — but not where they truly go to a fact in issue.

The power

The court may forbid any question it regards as indecent or scandalous.

Even with some bearing

This holds even though the question may have some bearing on the matters before the court.

The limit

Unless it relates to a fact in issue, or to a matter necessary to decide whether a fact in issue existed — then it may not be forbidden on this ground.

The bare Act

The section in its own words — a power, and its one limit.

Section 154 · verbatim

The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

In short: a witness box is not a place for gratuitous filth or scandal. This section gives the court a discretion to forbid any question or inquiry it regards as indecent or scandalous — and, importantly, it may do so even where the question has some bearing on the matters before it. Mere collateral relevance is not a passport for an indecent or scandalous line of questioning. But the power has a firm boundary: it does not reach a question that relates to a fact in issue, or to a matter necessary to be known in order to determine whether a fact in issue existed. In other words, where the indecent-sounding question is genuinely material to the very thing the case turns on, it cannot be shut out merely because it is unpleasant — the search for the truth of the facts in issue prevails. The line, then, is between the merely collateral (which the court may forbid) and the truly material (which it may not).

→ This carries forward IEA 1872 § 151 — the court may forbid indecent or scandalous questions, save those going to the facts in issue.

Glossary

indecent or scandalous

Offensive to decency, or gratuitously disgraceful.

may forbid

The court has a discretion to disallow the question.

some bearing on the questions before the Court

A degree of collateral relevance — not enough, by itself, to save it.

facts in issue

The core facts the case turns on.

necessary to be known to determine… facts in issue

Facts needed to decide whether a fact in issue existed.

the limit

An indecent question that is truly material to a fact in issue cannot be forbidden on this ground.

The picture

Merely collateral indecency can be shut out; indecency that goes to the very facts in issue cannot.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The power to forbidThe limit

the powerThe court may shut out the indecent or scandalous

In one lineThe court may forbid a question it regards as indecent or scandalous — even if it has some bearing on the matters before it.

The Court may forbid any questions or inquiries which it regards as indecent or scandalous,the court may disallow indecency/scandal…the discretion is the court’s — it may stop a line of questioning it finds indecent or scandalous.

although such questions or inquiries may have some bearing on the questions before the Court,→ even if it has SOME bearinga little collateral relevance is not a passport — the court may forbid it anyway.

ExampleA prurient line of questioning about a witness’s private life that touches the case only faintly may be forbidden — its slight relevance does not earn it a hearing.

✗ Not this‘It has some bearing’ is not an answer to the objection. Collateral relevance does not entitle counsel to press an indecent or scandalous question.

the limitMaterial to a fact in issue — and it cannot be shut out

In one lineThe power to forbid does not reach a question that relates to a fact in issue, or to a matter necessary to decide whether a fact in issue existed.

unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.unless it goes to the facts in issue…where the question is genuinely material — to a fact in issue or to determining one — it cannot be shut out merely for being indecent.

ExampleIn a case that turns on an intimate act, questions about it may be unavoidable — being necessary to decide the very fact in issue, they cannot be forbidden simply because they are indecent.

✗ Not thisThe exception is narrow. It saves a question only where it relates to a fact in issue (or is needed to decide one) — not every question with a general connection to the case.

Connected provisions

§ 153 · back

IEA 1872, § 151

Carried forward — the court may forbid indecent or scandalous questions, save those going to the facts in issue.

BSA 2023 § 154 — Indecent and scandalous questions