Leading Question

This entry contains information applicable to United States law only.

A query that suggests to the witness how it is to be answered or puts words into the mouth of the witness to be merely repeated in his or her response. Leading questions should not be used on the direct examination of a witness unless necessary to develop the person'stestimony. They are permissible, however, on cross-examination. When a party calls a hostile witness — the adverse party or a witness identified with the opposing party — leading questions can be employed during the direct examination of such a witness.

In common law systems that rely on testimony by witnesses, a leading question is a question that suggests the answer or contains the information the examiner is looking for. For example, this question is leading:

• You were at Duffy's bar on the night of July 15, weren't you?

It suggests that the witness was at Duffy's bar on the night in question. The same question in a non-leading form would be:

• Where were you on the night of July 15?

This form of question does not suggest to the witness the answer the examiner hopes to elicit.

Leading questions will generally be answerable with a yes or no (though not all yes-no questions are leading), while non-leading questions are open-ended. Depending on the circumstances leading questions can be objectionable or proper. The propriety of leading questions generally depends on the relationship of the witness to the party conducting the examination. An examiner may generally ask leading questions of a hostile witness or on cross-examination, but not on direct examination.

It is important to distinguish between leading questions and questions that are objectionable because they contain implicit assumptions. The classic example is:

• Have you stopped beating your wife?

This question is not leading, as it does not suggest that the examiner expects any particular answer. It is however objectionable because it assumes (among other things) that the witness (1) was married and (2) had in fact beat his wife in the past, facts which (presumably) have not been established. A proper objection would be that this question assumes facts not in evidence or lacks foundation.


PROPRIETY OF LEADING QUESTIONS

United States

While each state has its own rules of evidence, many states model their rules on the Federal Rules of Evidence, which themselves relate closely to the common-law mode of examination. Rule 611(c) of the Federal Rules of Evidence provides that:

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Leading questions are the primary mode of examination of witnesses who are hostile to the examining party, and are not objectionable in that context. Examination of hostile witnesses usually takes place on cross-examination. As the rule recognizes, the examination of a "hostile witness, an adverse party, or a witness identified with an adverse party" will sometimes take place on direct examination, and leading questions are permitted.

In practice, judges will sometimes permit leading questions on direct examination of friendly witnesses with respect to preliminary matters that are necessary to provide background or context, and which are not in dispute; for example, a witness's employment or education. Leading questions may also be permitted on direct examination where a witness requires special handling, for example a child. However, the court must take care to be sure that the examining attorney is not coaching the witness through leading questions.


SOME EXCEPTIONS TO THE NO-LEADING-QUESTIONS RULE

1. Where the witness is hostile to the examiner, or reluctant or unwilling to testify (obviously the danger of suggestions disappears)
2. To bring out preliminary matters (name, occupation, and other pedigree information)
3. Necessity, as with either
   -- A child witness; or
   -- A witness who is ignorant, weak-minded, timid, or deficient in the English language
4. Where the memory of the witness has been exhausted and there is still information to be elicited.
5. In a sensitive area, to avoid the witness from testifying to incompetent or prejudicial matter