Prove it! Musings on advocacy, evidence, and the problems of proof at trial: To Lead or Not to Lead, That is the Question?!
Leading questions ordinarily allowed on cross-examination can be entirely inappropriate on direct-examination, but this does not mean only non-leading questions are permitted on direct.
Both the North Carolina Rules of Evidence and the Federal Rules of Evidence envision leading questions on cross-examination in Rule 611(c) but generally prohibit leading questions on direct-examination: “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination.” Great.
We can usually figure out quite easily when we have a witness on direct and when we have one on cross, but sorting out the leading question from the non-leading one can be a bit more problematic. And the rules are no help. They merely tell us when we should “ordinarily” use leading questions; they don’t tell us what a leading question is. As anyone who has tried more than one case can attest, the definition of what is a leading question can vary significantly from courtroom to courtroom.
Quite simply, a leading question is one that suggests the answer. But it isn’t quite that simple. Some questions are more leading than others. Where a given trial judge draws the line is what makes the definition vary from courtroom to courtroom.
For our purposes, we’ll break leading questions down into three categories: (1) Really Leading; (2) Leading; and (3) Kinda Leading.
While McCormick on Evidence might categorize leading questions as “brutally leading,” “fairly leading,” and “mildly leading,” for our purposes, we’ll break leading questions down into three categories: (1) Really Leading; (2) Leading; and (3) Kinda Leading. 1
First, the Really Leading question. This is the one that cross-examiners love; the witness is on the ropes, the lawyer has the facts and can impeach the witness with a prior inconsistent statement if the witness doesn’t answer as suggested, and the witness has no place to hide:
Q: You saw the sign that said the speed limit was 35mph, isn’t that true?
A: Yes, that’s right
Q: But you decided to keep your speed at 65mph?
A: I was late for my meeting and thought I could make it.
Q: The answer to my question, then, is yes, you decided to keep you speed at 65 mph?
Q: As you approached the intersection you were still traveling at 65mph?
A: That’s right; like I said, I needed to get to my meeting.
Q: The light changed from green to yellow?
A: Yeah, it did
Q: You then saw it change from yellow to red?
Q: But you didn’t put your foot on the brake?
A: No, I thought I could make it safely through.
Q: You thought you could make it safely through, so you actually sped up, isn’t that what you did?
A: Yeah, I thought I had enough time.
Q: But you didn’t have enough time, did you, Mr. Jones?
A: No, it changed to red before I got there.
Q: You didn’t slam on your brakes?
Q: If fact, you slammed into Miss Smith’s car instead?
A: Yeah, that’s what happened.
A series of one fact Really Leading questions takes the defendant through the story and paints a compelling picture of his negligence. Even though the facts are coming from the mouth of the lawyer, the witness has to adopt them as his own or face impeachment. Even when the witness tries to ameliorate his responsibility, “I thought I could make it safely through;” “I thought I had enough time;” the follow-on question simply takes that fact, incorporates it into a leading question, and drives the nail a bit deeper. All of these questions suggest the answer and keep the cross-examiner in total control of the witness. Under both Federal and State rule 611(c) these questions are perfectly appropriate for cross-examination and totally inappropriate on routine direct examination. Oh, if life were so easy and the facts of my case were so good!
The line between Leading and Kinda Leading questions is rather fuzzy and will vary from judge to judge.
While Really Leading question are easy to identify simply by their form, Leading questions and Kinda Leading questions often are determined by their content as well as the context in which they are asked. Tone of voice, facts assumed by the question, and the presence or absence of alternative tags (“whether or not,” “if at all,” “did you or did you not,”) all play a role in defining a Leading question or a Kinda Leading question.
The line between these two categories is rather fuzzy and will vary from judge to judge. In other words, being able to place questions in one of these two categories is not that important. What is important, however, is not asking inappropriately leading questions on direct examination in the first place. Equally important is recognizing when we’ve inadvertently strayed into asking inappropriately leading questions on direct and extricating ourselves when the objection is sustained.
Some judges apparently believe that any question that calls for a “yes” or “no” answer is leading.
Some judges apparently believe that any question that calls for a “yes” or “no” answer is leading. While such a rule might be a clean and neat way to determine the issue, it doesn’t address the real problem. For example, if on direct examination the plaintiff testified that she was driving at the speed limit and saw the light turn green in her direction as she approached the intersection and was then asked, “Did you see anyone coming from your left?” some judges would reflexively sustain a leading objection, improperly so in my opinion.
A couple of things work to make this a non-leading question. First, the salient facts upon which the question is based have already been admitted. She testified to approaching the intersection. She testified that the light was green in her favor. While the question calls for a yes or no answer, it does not suggest which answer is favored. The answer may be, “No, I didn’t see him; the next thing I knew something crashed into me.” Or, the answer may be, “Yes, I did see him, but I had the green light and I thought he was going to stop.” Either answer might support the Plaintiff’s theory of the case and be consistent with other facts, but the question itself does not suggest which one.
The use of the word “did” as the first word in the question will also prompt some judges to sustain a leading objection. Again, however, when we consider the content and the context of the question it does not suggest the answer and should not be called a Leading, or even a Kinda Leading question. But change the content and context a bit and we can see a different result. Suppose the direct examination of the Plaintiff had not established her approach to the intersection or her observation of the light changing from red to green in her direction, and the question was, “Did the light change from red to green as you approached the intersection?” The question still calls for a yes or no answer, but we’ve already said that should not determine whether it is leading.
But now the question assumes the Plaintiff saw the light and that she saw it as she was approaching the intersection. In the context of the Plaintiff’s theory of the case the question now suggests the answer is, “yes.” Most judges will sustain a leading objection to this question. An objection to the question as assuming facts not in evidence may also be sustained, but it is the inclusion of those assumed facts in the context of the case and the yes or no nature of the question that also make it leading.
Judge Posner commented that sustaining objections to leading questions is not very effective in eliminating their adverse impact on the jury.
In United States v. Cephus, Judge Posner had occasion to address the problem of leading questions. Justin Cephus was charged with enticing underage girls, usually runaways, to engage in prostitution. In order to establish the interstate commerce element required for the federal crime, the AUSA established the witness was living in the defendant’s home in Indiana and then asked, “Whether one of her first two ‘calls’ took place in Illinois.” Judge Posner noted that question was leading because in context it suggested that the answer was “yes.” He also found it innocuous because the witness was not led by the question and replied that both of her first ‘calls’ were in Indiana, but whether the witness was actually led by the question is not the test.
Another witness was asked on direct examination, “You mentioned that he [Cephus] had a cord. Was he whipping her with the cord?” In context this was also a leading question, as well as a loaded one. Judge Posner explained that since whipping a person is unusual, the prosecutor would not have asked that question unless he expected an affirmative answer. Thus, the question was leading.
Judge Posner also commented that sustaining objections to leading questions is not very effective in eliminating their adverse impact on the jury. Jurors can anticipate the answer the prosecutor expects because leading questions are ones that suggest the answer. Merely asking the witness “was he whipping her with the cord?” suggests to both the witness and the jury that the defendant was, indeed, whipping her with the cord. Sustaining the objection doesn’t un-ring the bell for either the witness or the jury. The takeaway is that knowingly asking inappropriate leading questions, even if they are objected to and sustained, is improper and should be avoided.
If the Plaintiff cannot tell her story without the lawyer putting words into her mouth through leading questions, maybe she does not really have a story.
So, how do we avoid inappropriately leading the witness on direct? Our goal on direct should be to let the witness tell the story. Unlike cross, where the lawyer wants to control the picture and use the witness to elicit facts that favor her case or those that are inconsistent with the opponent’s case, direct examination is the place for the witness to turn to the jury and tell his story in his own words.
There are two good reasons for this: (1) the rules say so; and (2) it makes for a more compelling, believable, and persuasive case. If the Plaintiff, for example, cannot tell her story without the lawyer putting words into her mouth through leading questions, maybe she does not really have a story. Maybe it is the lawyer’s story. The connection between the jury and the witness is lost, or never established, and the jury is left wondering whether the Plaintiff really knew what had happened to her.
By asking open-ended questions we can draw out the story and let the witness on direct examination talk to the jury on a person-to-person basis without just adopting the lawyer’s words. Begin questions with Who, What, Where, When, Why, How, Describe, or Explain. These words invite a story. These are the words normal people would use if they wanted to find out what happened. In this regard, we are putting ourselves in the jury’s shoes and drawing out the information the way a real person would if he or she was sitting at the kitchen table having a cup of coffee with the witness and discussing the events giving rise to the trial.
If we had to lay a foundation for exhibits without the ability to lead the witness through the technical elements of the foundation we would spend more time on the legal technicalities than we would on the substance of the testimony.
If we use the prosecutor’s line of questioning in Cephus we can rephrase the leading questions into non-leading ones by simply beginning the question with one of our “invite a story” words. Notice the italicized words in the following transcript:
Q: You mentioned that he [Cephus] had a cord. What was he doing with it?
Def. Cnsl: Objection, Your Honor, he’s leading the witness!
Court: Overruled, the question does not suggest the answer.
Q: Miss Jones, I repeat the question, What was the Defendant doing with that cord he had?
A: He was whipping the girl with it.
Q: What type of cord was it?
A: It was like it came off a lamp; an electrical cord, you know, like that.
AUSA: Your Honor, may I approach the witness?
Court: You may.
Q: Miss Jones I’m showing you what has been marked as Government’s Exhibit 1 for identification, can you tell me what it is?
A: Yeah, that looks like an electrical cord that came off a lamp.
Q: Is Exhibit 1 similar to the cord you saw the Defendant whipping the other girl with?
Def. Cnsl: Objection, Your Honor, he’s leading the witness on direct!
Court: Overruled. He’s merely laying the foundation for an exhibit. Miss Jones, you may answer the question.
A: Yeah, it looks exactly the same; same color, same length, everything.
Q: How do you know it looks like the cord the Defendant used to whip the girl?
A: I was there in the room; I saw him holding it and beating her with it
. . .
Q: Please describe for the jury exactly how Cephus used the cord to whip the girl?
A: Well, he had it wrapped around his right hand with about 3 feet hanging down and he would whip her across the back and across her legs with it.
Q: Please show the jury how the Defendant held the cord by wrapping it around your hand the way he wrapped it around his.
A: OK, it was like this (Witness wraps Ex 1 around her right hand)
Q: How much of the cord would you say is left hanging after you wrapped it around your right hand.
A: About 3 feet.
Q: How much of the cord was left hanging from the defendant’s hand when he used it to beat the girl?
A: The same, about 3 feet.
Q: How hard was the Defendant swinging the cord as he whipped the girl?
A: It was hard; you could hear it zing through the air. She screamed when it hit her.
Q: How, exactly, did he swing the cord?
A: He raised his hand above his head and came down with it real fast, like this (Witness demonstrates)
. . .
Q: What were you doing while the Defendant was whipping the girl?
A: I was scrunched up in the corner of the room trying to stay out of the way. I was scared he would whip me, too.
Q: Why didn’t you run away?
A: I couldn’t; he locked the door and kept the key.
Note the form of the question when the prosecutor asked if the exhibit was similar to the one used by the Defendant to whip the other girl. Defense counsel was correct; it is a Leading question, or at least Kinda Leading. But the judge was also correct in overruling the objection. Rule 611(c) permits leading questions when “necessary to develop the witness’s testimony.” If we had to lay a foundation for exhibits without the ability to lead the witness through the technical elements of the foundation we would spend more time on the legal technicalities than we would on the substance of the testimony.
Even then, we may not satisfy all the technical requirements because the witness does not know what those technicalities are. If we cannot “suggest the answer” in those situations then we have elevated form over substance. Accordingly, the rules permit the use of leading questions in such situations; it makes things easier, smoother, and less confusing for the jury.
We could develop the testimony as to the whipping of the girl in even more detail, but you get the idea. 2 Obviously, it takes more questions to paint the picture than it would if we did it with leading questions, but the story becomes more personal, more persuasive, and more powerful than if the witness just responded “yes” or “no” to the prosecutor’s leading questions.
Leading questions on direct not only violate the rules of evidence in most situations, but they also hinder the personal connection between the jury and the witness.
By simply beginning the questions with words that ordinary people use in ordinary conversation to gain information about the other person’s knowledge or experience, we can come close to creating a ‘dialogue’ between the witness and jury. Otherwise appropriate non-leading questions will avoid, or should at least reduce, those annoying objections that interrupt the narrative. As a result, your witness gets to tell her story in her own words.
To lead or not to lead? The answer is yes. Leading questions on cross can shore up your own theory of the case and undercut your opponent’s theory. Leading questions on direct not only violate the rules of evidence in most situations, but they also hinder the personal connection between the jury and the witness, contribute to a less persuasive presentation, and drain the power from the story. It’s like playing poker, you have to “know when to hold ‘em, know when to fold ‘em, know when to walk away, and know when to run.” 3