§ 20.03 LEADING QUESTIONS

• Jurisdiction: United States

§ 20.03. LEADING QUESTIONS

[A] Direct Examination

Rule 611(c) follows the traditional practice of prohibiting leading questions on direct examination. Leading questions are prohibited in this context because it is assumed that a witness is particularly susceptible to suggestion when questioned by the party calling the witness.²³ Here, again, the trial court has considerable discretion²⁴ and rarely will be reversed because an objection on this ground relates only to the form of questioning.²⁵

[1] Leading Questions Defined

A leading question is one that suggests the answer. A question that calls for a "yes" or "no" answer "may or may not be leading."²⁶ For example, the question, "Do you go to law school?" is not a leading question. However, even a question in the alternative form may be leading.²⁷ For example:

"State whether of not the defendant was the person in the brown pants, green shirt, red hair, wearing glasses and a beard, walking with a limp and speaking with an accent who robbed the bank?"

The specificity of detail makes this question leading. A question may also be leading because of its tone²⁸ or because of counsel's gestures.²⁹

[2] Exceptions

Rule 611(c) recognizes several traditional exceptions to the prohibition against leading questions on direct examination. They are permitted (1) on preliminary matters, (2) when necessary to develop a witness's testimony, (3) when the witness is "hostile," (4) when the witness is an adverse party, and (5) when the witness is identified with an adverse party.

Preliminary matters. Leading questions are typically permitted when eliciting "undisputed preliminary matters," such as a witness's name, address, etc.³⁰

Necessity. Leading questions are often necessary with a child witness³¹; "the adult with communication problems [and] the witness whose recollection is exhausted."³² Leading questions are also permitted when the witness is "a non-English speaking witness testifying through a translator,"³³ suffers from mental disability,³⁴ or is nervous.³⁵

Hostile witnesses. Leading questions are also permissible when examining a hostile witness. Providing damaging testimony, by itself, does not make a witness hostile. Rather, the witness must be evasive, reluctant, or unwilling to testify.³⁶ The decision to declare a witness hostile rests with the trial judge.

Adverse party and associates. An adverse party as well as a witness identified with an adverse party are automatically considered "hostile" witnesses.³⁷ For example, the plaintiff in a malpractice action often calls the defendant-physician to the stand to establish certain elements of the cause of action — i.e., this was the doctor who performed the operation.³⁸ Leading questions are permitted because the assumption of susceptibility is inoperative in this situation. Persons identified with an adverse party include an employee,³⁹ girlfriend,⁴⁰ or investigating agent.⁴¹

[B] Cross-examination

Leading questions typically are permitted on cross-examination. Here, the law assumes that the witness is not as susceptible to suggestion. The term "ordinarily" in Rule 611(c) addresses situations where this assumption is not operative. For example, if the plaintiff in a malpractice action calls the defendant-physician to the stand, on cross-examination, leading questions by the physician's own attorney should not be permitted.⁴²

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Notes:

^[23] See Fed. R. Evid. 611 advisory committee's note ("The rule continues the traditional view that the suggestive powers of the leading question are as a...