Leading Questions

As indicated by its name, a leading question is one that leads a witness to an answer, by either suggesting the answer or by substituting the words of the questioning attorney for those of the witness. Many leading questions call for answers of either "yes" or "no." But not all questions that call for an answer of "yes" or "no" are leading questions. As an example, consider the following hypothetical courtroom exchange:

Questioning Attorney: The defendant owned the firearm that is an exhibit in this case, correct?

Witness: Yes.

Questioning Attorney: And this is the firearm that was used in the murder, correct?

Witness: Yes.

As you can see, a sophisticated attorney can use leading questions to get a witness to validate the attorney's words. In effect, this allows the attorney to indirectly testify through the witness, which can be quite effective. Leading questions can also be used to create perceptions by not allowing a witness to qualify their answer. For example, in the exchange above, the witness may want to testify that the gun was stolen from the defendant before the murder, but since that question was not asked, the witness could not provide that specific answer, leaving certain perceptions in the minds of a jury.

When Are Leading Questions Allowed?

Because of their potential to lead to misleading testimonial evidence, these types of questions are not allowed on direct examination, that is, when a party's attorney is questioning their own witnesses. In those instances, attorneys must normally use open-ended questions such as, "On the day in question, what did you observe?" However, these questions sometimes call for narratives that can produce long speeches on irrelevant matters, wasting the time of the court and the parties. Open-ended narrative questions are unpopular with courts and should be avoided.

Judges do have the discretion to allow leading questions during the direct examination of a witness in matters that:

  • Deal with simple or uncontested background issues in order to save the court's time;
  • Will help to elicit the testimony of a witness who, due to age, incapacity, or limited intelligence, is having difficulty communicating her evidence; or
  • Involve adverse or hostile witnesses (witnesses are considered adverse or hostile when their interests or sympathies may lead them to resist testifying truthfully and in most cases, an adverse party or a witness associated with an adverse party is considered hostile)

Leading questions are also allowed during a cross-examination when an attorney is questioning the other party's witnesses. This is because one of the purposes of cross-examination is to test the credibility of statements that a witness made on direct examination. It's also due to the fact that that witnesses for one party may not be as forthcoming or helpful when questioned by the other party's attorney.

Get a Free Case Review

As you can see, there are a variety of courtroom tools, including the use of leading questions, that attorneys can use to elicit evidence and make a stronger case for their clients. If you're facing criminal charges, having an experienced criminal defense attorney at your side can make all the difference. Get in touch with one near you today for a review of your case, at no charge to you.

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