What Are Leading Questions?
Leading questions are those that have the answer baked into them. They tend to be yes/no questions, though not always. A leading question might be: "Did you strike the injured party?" or "You were drunk when you did the stabbing, right?" or even "Isn’t it true that you stabbed the injured party?" Leading questions are also sometimes called ‘loaded’ questions, because they make assumptions that are in contention and lead the person answering the question to make admissions that are contrary to those assumptions.
Because loaded and leading questions tend tell a story themselves, they are best reserved for direct examination of witnesses in a mock trial, but shouldn’t be used in opening statements that are designed to lay out your side’s version of the story. Laying out your side’s version of the facts on the subject matter is something that happens during the course of a trial through witness testimony and documentary evidence.
Leading questions aren’t prohibited during cross-examinations, and tend to result in more information coming out during the course of their use than doesn’t . It’s rare that not much information is revealed when a leading question is used during a cross-examination, because the person being asked the question can’t not answer the question. If it’s a yes/no question, you can’t answer by shaking your head, you can’t answer by showing your palm, you do have to verbalize an answer in words. It’s not uncommon for leading questions to lead to a cascade of answers coming forth.
The above might seem counterintuitive, but the fact is, when the person being cross-examined is being led with questions like this, their defense for the other side’s questions starts to go out the window. They aren’t able to think through their own answers before they’re speaking the words, and it tends to suggest, to the jury, that the person being cross-examined has something to hide. When you can’t think before you answer, you tend to trip yourself up in what you say and how you say it. This rarely comes out favorably for the person on the witness stand in a court proceeding.
The Significance of Leading Questions in the Legal Context
Leading questions hold particular importance in legal contexts due to their potential to alter the course of witness testimony, and sometimes the outcome of a case. Given that a leading question is, by definition, a question that contains its own answer, attorneys must exercise caution in their use of such questions during a trial.
For example, if an attorney asked a leading question, "Before entering the store, your friend asked you to pick up a few items during this trip, correct?" the witness could very likely answer in accordance to the attorney’s expected response – "Yes, they did." This could ultimately alter the conclusion of a case in a variety of ways, and as such leading questions are often prohibited in direct examinations but allowed to be used during cross-examinations.
Although negative, leading questions can also be used by plaintiff and defense attorneys alike to show the jury just how unreliable a witness is. Generally, attorneys try to avoid asking leading questions during direct examination. However, if they believe they have a witness who is particularly unreliable or forgetful, they may pose a series of leading questions to demonstrate to the jury that their testimony should not be taken at face value. In some cases, attorneys will even go so far as to ask blatantly leading questions to demonstrate how deceptive a witness has been throughout the course of their questioning.
Common Instances of Leading Questions in Legal Proceedings
In practice, lawyers ask leading questions throughout the litigation process. Long before trial, they will use them to gather information during depositions and to provoke admissions when drafting interrogatories and document requests. And at trial, opposing counsel might object to them during the examination of a witness. Leading questions are common on direct and cross-examination (i.e., direct examination of a witness by his or her own attorney and cross-examination of that witness by opposing counsel). They are most likely to arise during cross-examinations, but objections to the use of leading questions can be raised in any number of contexts.
One good example occurred during a sexual harassment trial in California. The plaintiff’s lawyer was asking a witness about the company’s sexual harassment reporting policy and what the witness—who had not experienced sexual harassment—had learned about the policy during training. An attorney objected to one of the plaintiff’s questions:
Plaintiff: Please tell the jury what your impressions are of why it is important for employees to report any sexual harassment.
Defense: Objection. Leading.
Court: Sustained.
Plaintiff: Please tell the jury why you would want to report any sexual harassment.
Defense Lawyer: I’ll withdraw the objection. Fine.
Plaintiff’s question was certainly within the broad definition of leading questions: it assumed that as an employee you would want to report sexual harassment. But leading questions aren’t always that obvious. Some leading questions conceal their assumptions behind a broader inquiry, as this question does about reporting sexual harassment. Because it’s open ended—which isn’t typically how a presumed "yes" question is asked—then it may give the illusion that it’s acceptable. But it isn’t.
Leading questions aren’t just posed on the stand and during the discovery process. During closing arguments, lawyers often tell jurors to consider a situation by asking them to assume certain facts:
If you were in [Insert litigant’s place here], would you have filed a lawsuit if you had [Plaintiff’s complaint]?
That’s a leading question with all sorts of complicated implications (substituting "you" for the plaintiff instead of using the plaintiff’s name, which is the more typical approach, is a dead give-away that this is an artifice, a situation the jury is supposed to assume is true without evidence it actually the case). A leading question, in this context, is one that tells the jurors what they should believe. Lawyers are not allowed to do that, and we aren’t even supposed force jurors to assume things without evidence.
Rules and Guidelines for Leading Questions
The use of leading questions is generally forbidden during a direct examination. Some jurisdictions make an exception to this general rule for introductory and background information. However, those exceptions to the rule should not be confused with blanket permissions or allowances for leading questions in all circumstances. For example, in most courts across the country, leading questions are not allowed for a direct examination of a primary witness in a legal case. This means that questions cannot be formed in a way that suggests a specific answer, unless they are asking questions about introduction or background information about a witness (or other limited exceptions determined by the court).
In federal legal cases, Federal Rule of Evidence 611 is the main rule that regulates the use of leading questions. This rule states that a leading question is not allowed on direct examination unless the court allows it to be asked for certain reasons. The purpose of this rule is, in part, to avoid putting words in a witness’ mouth, which can confuse the jury as to which testimony to believe or focus on. It also makes a case for fairness when it comes to the evidentiary portion of a case.
The majority of states have adopted the federal rules for their own individual court systems. These rules outline the conditions where leading questions may be asked of witnesses. For example, some states will allow leading questions of hostile and adverse witnesses, while others may only allow leading questions if the questioner is authorized by the court to do so. In most circumstances, the court will not allow leading questions unless there is a reason to believe that the witness may be hostile in their testimony.
How to Respond to Leading Questions
When faced with a leading question, an attorney can object on the basis that the opposing counsel is controlling the witness by asking questions that suggest a particular response. You can object to a leading question in several different ways. If you learn that opposing counsel plans to ask a question that will have a "yes" or "no" answer, you can object at the beginning of the examination and ask the court to require the attorney to avoid leading questions. This is a strategic objection because you have to show that the questions are indeed leading (i.e., they suggest a very specific answer). Although this can be effective, consider speaking to the judge in advance (in his or her chambers, for example) to determine whether the judge will be amenable to such an approach . Some judges are very sensitive to attorneys’ objections and may be very willing to instruct opposing counsel to refrain from leading. Others are more resistant to objections and may only agree to sustain them if the leading is particularly egregious. On cross-examination, you can also object that the witness has become a conduit for information rather than a specific individual who is there to testify. The court wants witnesses to give their own recollections rather than information they may have heard from other people. A good attorney will be careful to avoid any questions that could lead to an objection. In general, it pays to object to leading or suggestive questions asked during cross-examination or direct examination as soon as possible, although you may want to confer with the court outside the presence of the jury to determine the best timing for your objection.
Leading Questions in Cross-Examination
In the courtroom, leading questions hold significant weight as they serve a dual purpose: they are used by attorneys during their examination of a witness in order to get that person to admit to facts that might not be in line with their testimony. Attorneys frequently employ this examination tactic in order to walk the witness through their testimony in a way that makes it easy to show their inconsistency. This tactic is often used when the attorney asks an unfriendly witness about their knowledge of the case and/or other issues that may have caused tensions between the attorney and the witness. It’s also quite common to see leading questions used during cross-examination in order to discredit an argument or testimony that the attorney would like to dismantle.
For example, you might hear an attorney say to a witness on cross-examination, "You were driving 55 miles per hour down main street when the traffic light was red, weren’t you?" In this situation, both the attorney and the witness know that was the case, which is why the attorney asked the question in this manner. The attorney’s case is strengthened by the witness’ admission, which is why it’s an almost universal practice in cross-examination to ask leading questions in order to help show the jury the truth behind the situation.
Leading questions are not permitted on direct examination of witnesses without prior permission from a judge. Even when it is allowed, an attorney must proceed with caution. If too many leading questions are asked, the judge could rule them inadmissible in court. Typically, permitted leading questions are ones that inquire about trivial information that most people would know.
If you look up the definition of "leading question" in any legal thesaurus, you would find an example of a leading question that the legal system considers "common" or acceptable. This example is "You didn’t take the money?" According to The Merriam-Webster Dictionary, this is an example of a leading question, which can help attorneys elicit a particular response from witnesses during their defense.
Another accepted form of a leading question in the courtroom is "You were angry, weren’t you?" These types of common leading questions can help attorneys get witnesses to respond in a way that backs up their argument.
Any type of question that implies the answer could be a leading question, but proven examples include questions such as "You didn’t mean to do it, did you?" A witness’ response of "No, I did mean to do it" could damage the argument of whichever attorney is asking these questions.
Case Studies: Examples of Leading Questions in Trials
An instructive case is State of Hawaii v. Town, 58 Haw. 522, 573 P.2d 244 (1978). At trial, the witnesses were asked a series of leading questions during redirect. See id. at 526-27, 573 P.2d at 248-49. The Hawaii Supreme Court concluded that the leading questions had caused substantial prejudice. See id. at 531, 573 P.2d at 252. Among other things, the court noted: In his redirect examination of each of the witnesses, the . . . Prosecutor asked leading questions of the most prejudicial kind, i.e., questions which suggested the answer which the witness then proceeded to give. . . . In fact, virtually all the testimony of the . . . witnesses relating to the identification of the Appellant was given in response to leading questions. . . . Deficiencies in the initial direct examination were apparently filled in during re-direct by the prosecutor. . . . The prosecution not only relied on improper leading questions and suggested answers in direct elicitation of damaging testimony against the defendant, but also did so during re-direct and re-cross, as the prosecutor filled in perceived holes in the State’s case. Id. at 530-31, 573 P.2d at 251-52 (citations omitted). The court’s analysis demonstrates that leading questions are a mode of proof in and of themselves. When used on direct examination, leading questions can have the capacity to "poison the effects of the entire trial." Id. at 532, 573 P.2d at 252. Here, the "resulting testimony was clearly hearsay." Id. at 532, 573 P.2d at 252 (internal citation omitted). The court concluded: The prejudicial impact of this tactic was certainly not lessened by the fact that the improper redirect questions were posed by the prosecutor to every state’s witness who had already testified and who was therefore recalled solely for redirect. Id. at 532-33, 573 P.2d at 252-53. In another case, the court found that leading questions on direct examination diverted the defendants’ focus away from the guilt of the two codefendants and created an improper atmosphere in which the jury would be induced to find the defendants guilty in order to find the codefendants guilty . See State v. Clark, 35 Haw. 38, 67 (1943). The court would not let that tactic prevail: In the instant case, we are satisfied that the leading questions asked the witness, Mr. Hanuhe, in such a way as to make him support the government’s case. The witness was being asked leading questions in derogation of the rights of the defendants. The cross-examination could not remove such effect. Id. at 69 (internal citation omitted). Ultimately, the questions were "clear attempts to place guilt on the defendants." Id. Although the state’s use of leading questions did not warrant a reversal in that case, the court nonetheless stated that when a "witness has been directed to testify by leading questions, greater care should have been exercised by the prosecutor in the trial of this type of case to see that none of the leading questions should be so worded as to bring out only the answer which would support the government’s case." Id. In contrast, and contrary to the general rule that leading questions are impermissible on direct examination, some states permit leading questions during direct of a witness that is an adverse party or someone under the control of an adverse party. See 32 C.J.S. Evidence § 790 (2009) (citing Idaho (Code Ann. 1975, § 10-804); Louisiana (Code Evid. ann. tit. III Art. 167); Minnesota (Stat. 609.135); Mississippi (Code 1942, tit. VII, § 1688); Montana (Code Ann. 1935, § 10601); and Rhode Island (Gen. Laws 1938, ch. 218, § 11)). The leading questions could have less impact because they do not draw the material to the consciousness of the trier of fact for the first time, but rather are used "for the purpose of shaking the witness’ testimony." Id. In other words, leading questions may be permissible on direct when the witness is a party, and even under such circumstances, they may still lose their predominance over other modes of proof. See State v. Town, 58 Haw. 522, 573 P.2d 244 (1978).