Leading the Witness
When to Use a Leading Question at Trial – and Why
State and federal rules of evidence limit the subject and substance of witness testimony at trial or a workers compensation hearing.
But these rules go further, allowing the trial judge control over form (i.e., how a lawyer asks the questions).
The leading question is one type of interrogation method that lawyers use at trial. And it is a form of question often objected to by opposing counsel during the direct examination of a witness.
This article defines a leading question, explains when an attorney may use it, and discusses the advantages and disadvantages of leading the witness.
Read on for more information.
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What is a Leading Question?
A leading question suggests to the witness the answer the questioner wants.
Examples of Leading Questions
The test for a leading question is whether the examiner wants the witness to give one answer over another.
Indeed, no bright-line rule makes a question leading. Instead, context matters. Any question may lead the witness under particular circumstances.
Here are a couple of examples of leading questions in workers compensation or personal injury cases:
- Didn’t you stop at the red light and look in all directions before proceeding?
- Isn’t it true that you felt great before the back injury at work?
If the question includes specific details and asks for a yes or no answer, it may lead the witness.
What Do the Rules of Evidence Say About the Leading Question?
The rules of evidence devote a section to leading questions.
Last amended in 2011, Rule 611(c) of the Federal Rules of Evidence provides that:
Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinary, the court should allow leading questions:
(1) on cross-examination; and,
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
Many states model their rules on leading questions on this federal evidentiary rule.
For example, Rule 2:611(c) of the Virginia Rules of Evidence states that:
Leading questions should not be used on the direct examination of a witness except as may be permitted by the court in its discretion to allow a party to develop the testimony. Leading questions should be permitted on cross-examination. Whenever a party calls a hostile witness, an adverse party, a witness having an adverse interest, or a witness proving adverse, interrogation may be by leading questions.
The general rule, therefore, is that leading questions are not allowed on direct examination. However, many exceptions exist.
What are the Exceptions to the Rule Against Leading Questions on Direct Examination?
Court decisions and the Notes of the Advisory Committee on Evidence Rules offer insight into when a judge may allow an attorney to lead the witness during direct examination.
Here is a list of potential exceptions to the ban on leading questions:
- Courts allow attorneys to lead the witness when asking about undisputed or preliminary matters. For instance, attorneys often use leading questions when reviewing an expert witness’s education and professional qualifications, asking a witness to spell their name or explain why they are in court, or laying the foundation for an exhibit.
- Leading is permitted when questioning a young (child) or elderly witness.
- Courts allow leading when questioning a witness with communication problems, such as those for whom English is a second language or who have anxiety or a disability.
- You may lead a witness who is biased, hostile, or unwilling to answer the questions. This permission extends to more than an adverse party or a witness identified with the opposition.
- Courts permit leading questions to refresh witnesses’ recollections if they suffer a memory lapse. This exception is justified because it does not contradict testimony or documents already in evidence.
- Some courts allow you to lead the witness to clarify evidence admitted already.
Can I Ask a Leading Question on Cross-Examination?
Yes.
You can and should use leading questions when cross-examining a witness whose testimony harmed your case on direct examination.
What are the Advantages of Leading Questions?
Two benefits of leading questions stand out.
First, a leading question is often more efficient than an open-ended question because it asks for a short answer.
Second, leading questions allow the attorney to control the witness by limiting the answer.
Instead of worrying about the witness going off on a tangent and disrupting the story you want to tell the jury, the leading question allows you to tell the story in the order you want.
Further, on cross-examination, short, leading questions permit you to control the narrative and tell your story through the adverse witness, neutralizing their harmful testimony.
What are the Weaknesses of Leading the Witness?
The primary rationale against leading questions on direct examination is that a witness is susceptible to suggestion and favoritism for the party calling him or her to testify.
But this is not the only reason to avoid asking a leading question.
Leading the witness too often on disputed issues may cause the judge or jury to think you do not trust the witness to provide favorable answers. If you trusted them, you wouldn’t try to exert such control over their testimony by telling them what to say.
In addition, leading questions that reveal the answer tend to put the attorney front and center instead of the witness. When you have a good witness, you want him or her to tell the story to the jury.
The attorney and the witness lose credibility by replacing the witness with leading questions on direct examination. Most cases turn on credibility; therefore, losing the jury’s trust may cause you to lose the case.
How to Avoid Asking Leading Questions in Court
Are you unsure whether a specific question will lead the witness and result in a sustained objection?
To avoid an objection to a leading question, we recommend asking questions that start with:
- Who?
- What?
- When?
- Where?
- Why?
- How?
Should I Object to a Leading Question?
Some attorneys believe you should object to every leading question.
Their philosophy is simple: object if the question violates the rules of evidence.
Our recommended approach is one of flexibility. This means not objecting to every leading question but considering the potential impact on your case before deciding to object.
Here is our philosophy on leading questions.
First, do not object to a leading question that will not result in testimony that hurts your case. Too many objections may make the jury think you are afraid of the answer and hiding something. This risk outweighs the objection.
Second, objecting to a leading question is a form objection, which means the examiner can rephrase the question. Often the objection forces improved questioning and better answers from the witness, harming your case.
Third, if objecting to a question as leading, object fast. If the examiner has time to finish their question, the witness will know exactly what the questioner wants when asked in a different form.
Will the Appeals Court Overturn the Trial Verdict Based on the Judge’s Allowing Leading Questions that Violated the Evidentiary Rules?
Unlikely.
Appellate courts rarely find lower court rulings permitting leading questions contrary to the evidentiary rules to be reversible error.
To have a chance of reversing the lower court based on evidentiary rulings on leading questions, the record must show a pattern of leading questions and repeated objections overruled.
Framing Permissible Questions is Harder than You Think. We Can Help.
At your trial or hearing, the judge has significant power over how attorneys may question witnesses on direct and cross-examination.
We hope this information helps you improve your questioning to tell a better story at trial and know when and how to stop the other side from violating the rules.
Contact us today if you have more questions.
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