Section 9.16 Leading

• Library: Evidence 2017

A. (§9.16) Leading

Generally, counsel should not ask leading questions during direct examination; however, whether leading questions are allowed is largely within the trial court’s discretion. State v. Allison, 845 S.W.2d 642, 647–48 (Mo. App. W.D. 1992); King v. Copp Trucking, Inc., 853 S.W.2d 304, 309 (Mo. App. W.D. 1993).

Missouri courts have allowed leading questions in cases:

where the witness is shy, timid, or unwilling, State v. George, 214 Mo. 262, 113 S.W. 1116, 1118 (Mo. 1908); where the witness is hostile, State v. Preston, 673 S.W.2d 1, 5 (Mo. banc 1984); for preliminary or formal matters, Hesse v. Wagner, 475 S.W.2d 55, 62 (Mo. 1971); where the witness had difficulty understanding English, Vodicka v. Sette, 223 S.W. 578, 581 (Mo. 1920); or for where the answer has already been produced and the attorney is merely repeating that answer, Boulos v. Kansas City Pub. Serv. Co., 359 Mo. 763, 223 S.W.2d 446, 451–52 (Mo. 1949).

State v. Miller, 208 S.W.3d 284, 289 (Mo. App. W.D. 2006).

Additionally, a party may ask leading questions of their own witness when the witness is called to the stand by the opposing party. State v. Brown, 902 S.W.2d 278, 287 (Mo. banc 1995); King, 853 S.W.2d at 310. The trial court can allow a party to use leading questions when examining a reluctant witness as well. For example, the trial court did not abuse its discretion by allowing the prosecutor to ask a 13-year-old victim leading questions because the witness was hesitant about answering questions regarding the details of the alleged offense. State v. Coffman, 230 S.W.2d 761, 762 (Mo. 1950). Further, the trial court may allow a party to use leading questions to refresh the memory of a witness. State v. Johnson, 687 S.W.2d 706, 708 (Mo. App. W.D. 1985).

A leading question is “one which suggests the answer to the witness.” Allison, 845 S.W.2d at 647–48. For example, the question “Did you at that time feel that Biggins in his state and with his build was capable of doing you serious physical harm?” was an objectionable leading question. Id.

The court of appeals will only...