Written by guest bloggers Julia Sturgill and Professor Michael J. Dale*
Every lawyer can define a leading question. A leading question is a question that “suggests” the answer. As basic a text as the American Jurisprudence for Evidence defines leading questions as “those which suggest to the witness the answer desired.” 81 Am. Jur. 2d Witnesses 716. The Florida Jurisprudence for Evidence, for example, has a similar definition, describing a leading question as “one that suggests or puts the desired answer into the mouth of the witness, or one that assumes the existence of material facts that have not been proved.” 24 Fla. Jur. 2d Evidence and Witnesses 862.
I. Understanding What “Suggests” Means
There are at least two reasons why determining whether a question is leading is not as easy as it seems. The first reason involves the use of the word “suggests.” A question may be leading because the suggestion is based not just upon the words in the question, but also or even only upon the questioner’s demeanor, including facial expression, gestures, and tone of voice. The second reason involves the discretionary decision-making authority of the judge—meaning that a question is leading if the judge says it is. The judge’s decision may be based not only upon the words used but upon the questioner’s demeanor, which, of course cannot be detected from reading a transcript on appeal. How much of a hint is enough to “suggest” the answer is “surely” to some degree subjective.
The courts have almost primarily defined leading questions based upon the words used in the question as where the questioner, in effect, “puts words in the witness’s mouth so the testimony is really that of the questioner, and not the witness.” State v. Ward, 347 P.2d 865, 867 (Utah 1959). The court in Ward recognized that “this usually occurs in so framing a question that it assumes a fact to be true, or in reciting a fact and merely seeking affirmation from the witness, or in so phrasing the question as to suggest the desired answer.” Id. Thus, if the question describes a fact and asks whether the fact occurred, the question is to be considered leading because the natural inference is that the lawyer expects the witness to answer the question affirmatively. Id. On the other hand, in State v. White, the court stated that “[a] question is not leading where it directs the witness toward a specific matter to be addressed without suggesting an answer.” State v. White, 508 S.E.2d 253, 267 (N.C. 1998) (quoting State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875 (1996)).
There are reported decisions that do recognize that demeanor, or tone of voice, can cause a question to be leading. The court in State v. Weese stated that the “particular form or phrasing of a question does not necessarily determine whether it is leading. A question may become leading if the interrogator’s tone of voice, emphasis on certain words, or nonverbal conduct suggests the desired response.” State v. Weese, 424 A.2d 705, 709 (Me. 1981). The court in State v. Barnes also stated a similar understating of how a question can become leading, holding that “[t]he tenor of the desired reply can be suggested in any number of ways, as, for example, by the form of the question, by emphasis on certain words, by the tone of the questioner or his non-verbal conduct, or by the inclusion of facts still in controversy.” State v. Barnes, 552 N.W.2d 857, 860 (Wis. Ct. App. 1996) (citing 4 Weinstein’s Federal Evidence § 611.06(2)(a)). Thus, courts have recognized several ways that a questioner can suggest the desired response, whether it be the form of the question, the tone of the questioner’s voice, the non-verbal conduct of the questioner, or the questioner’s emphasis on certain words. The essence of a leading question is that the question in any of a variety of ways suggests the answer sought by the questioner.
II. Misconception: Leading Questions are Yes or No Questions
A common misconception is that a leading question is one which can be answered yes or no. “A leading question has been defined as one which suggests the desired response which may frequently be answered ‘yes’ or ‘no.’ However, a question is not always considered leading merely because it may be answered yes or no.” State v. White, 508 S.E.2d 253, 267 (N.C. 1998) (quoting State v. Burrus, 472 S.E.2d 867, 875 (N.C. 1996)). In NITA training programs, this is often referred to as a “closed end” question. Malone and Hoffman, The Effective Deposition (NITA 4th ed. 2012) at § 5.1.
The Florida Supreme Court in Florida Motor Lines Corporation v. Barry stated that “[w]e have held that a leading question is one that points out the desired answer.” Florida Motor Lines Corp. v. Barry, 158 Fla. 123, 126, 27 So. 2d 753, 756 (Fla. 1946) (citing Coogler v. Rhodes, 21 So. 109 (Fla. 1897)). In Porter v. State, a Florida intermediate appellate court stated “[t]he proper signification of the expression is a suggestive question, one which suggests or puts the desired answer into the mouth of the witness . . . and that a leading question is one that points out the desired answer, and not merely one that calls for a simple affirmative or negative.” Porter v. State, 386 So.2d 1209, 1211 (Fla.3d DCA 1980) (quoting Coogler v. Rhodes, 21 So. 109, 110 (Fla. 1897). The court explained that “[t]he real meaning of this definition is that a question which suggests only the answer yes is leading; a question which suggests only the answer no is leading; but a question which may be answered either yes or no, and suggests neither answer as the correct one, is not leading.” Porter v. State, 386 So.2d 1209, 1211 (Fla.3d DCA 1980).
Thus, the determinative factor is whether the question leads the witness to the desired answer by suggesting what the response should be, and not merely whether the question can be answered by a yes or a no. Some yes or no questions will be considered leading questions, and the factor which determines if they are leading is whether the suggestion of the answer is clear from the question asked or how it was asked. As mentioned above, if the questioner recites a fact and is seeking affirmation from the witness, the question would be considered a leading question because the question clearly called for the affirmative response. State v. Ward, 347 P.2d 865, 867 (Utah 1959).
III. When Leading Questions Are Permitted
Of course, under certain circumstances leading questions are permitted, Federal Rules of Evidence 611(c) state that “[l]eading questions should not be used on direct examination except as necessary to develop the witness’s testimony.” In addition, the Rule states that “[o]rdinarily the court should allow leading questions: on cross-examination; and when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.” Fed. R. Evid. 611(c). Thus, Rule 611 allows for the use of leading questions during direct examination when (1) they are “necessary to develop the witness’s testimony” and (2) when the party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
The first situation where leading questions are permitted is when they are “necessary to develop the witness’s testimony.” Fed. R. Evid. 611(c). This occurs when the witness is unable, on his or her own, to provide the testimony necessary without, in effect, being pointed in the right direction, or when, without the use of leading questions, extracting such testimony would delay the court and waste time. Thus, the court has discretion to allow leading questions in such cases, but it requires the court to balance the suggestive nature of the questions against the cost of wasting time or losing the testimony of the witness. Around the country, local practice may refer to this process, referred to in the Rule as developing in the witness’s testimony, by the short hand reference to “predicate,” “preliminary,” or “foundation.”
Leading questions are also common in situations where the witness is a minor. For instance, the court in United States v. Carey, allowed the prosecutor to asking leading questions to the twelve-year-old victim because the record revealed several times that the witness was nervous and the court previously recognized “that a victim-witness’s youth and nervousness can satisfy Rule 611’s necessity requirement.” United States v. Carey, 589 F.3d 187, 192 (5th Cir. 2009) (cited in Rotolo v. United States, 404 F.2d 316, 317 (5th Cir. 1968)).
A similar situation where leading questions are necessary is when there is an adult who has difficulty communicating or comprehending the questions being asked. For instance, in United States v. Rodriguez-Garcia, the court held that leading questions could be used because the witness did not speak English. United States v. Rodriguez-Garcia, 983 F.2d 1563, 1570 (10th Cir. 1993). The court recognized that under the Advisory Committee Notes of Rule 611(c), “leading question[s] may be asked of an adult witness with communication problems.” Id. (citing Advisory Committee Notes of Rule 611(c)).
Additionally, courts have permitted leading questions where the witness needed his recollection refreshed or if the questioner is unable to ask the question in a way that would not confuse the witness. For example, the court in United States v. McGovern recognized that leading questions may be permitted when the witness becomes unable to concentrate or disoriented, or when the witness misunderstands what the questioner is asking. United States v. McGovern, 499 F.2d 1140, 1142 (1st Cir. 1974).
Further, the court has permitted leading questions that pertain to facts that are not in controversy. For instance, the court in United States v. Costa recognized that leading questions are permitted to when they deal with such preliminary matters. United States v. Costa, 691 F.2d 1358, 1363 (11th Cir. 1982).
Thus, there are many different situations in which the court will permit the use of leading questions during direct examination that will be decided on a fact-specific, case-by-case basis.
The second situation in which leading questions will be permitted is where the “party calls a hostile witness, an adverse party, or a witness identified with an adverse party.” Fed. R. Evid. 611(c). Originally, a witness had been automatically considered hostile if he or she was “an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.” Fed. R. Evid. 611(c)(2) Advisory Committee’s note. However, the sentence “witness identified with an adverse party” is to be read more broadly, enlarging the category of persons to whom it is possible to ask leading questions. Id. Thus, courts have allowed leading questions to be asked to a party’s employee because the witness was sufficiently identified with the adverse party. In Haney v. Mizell Memorial Hospital, the court held that leading questions should have been allowed because they were directed at a nurse who was an employee of the defendants. Haney v. Mizell Mem’l Hosp., 744 F.2d 1467, 1478 (11th Cir. 1984). Further, courts have recognized that an adverse party’s girlfriend was also sufficiently identified with the party to permit the use of leading questions on direct examination. United States v. Hicks, 748 F.2d 854, 859 (4th Cir. 1984).
IV. In the Court’s Discretion: The Final Answer
It is important to note that “ruling on the admissibility of a leading question is in the sound discretion of the trial court, and these rulings are reversible only for an abuse of discretion.” State v. White, 508 S.E.2d 253, 267 (N.C. 1998) (quoting State v. Marlow, 432 S.E.2d 275, 282-83 (N.C. 1993)). The court in United States v.Hall affirmed that the court has “the discretion to allow or disallow leading questions of a witness identified with an adverse party, and once the district court ‘exercises his discretion in that regard, [the movant] must establish an abuse of discretion to obtain a reversal.’” United States v. Hall, 165 F.3d 1095, 1117 (7th Cir. 1999) (quoting United States v. O’Brien, 618 F.2d 1234, 1242 (7th Cir. 1980)). Thus, if the trial court determines leading questions should be permitted in the interest of justice, it has the discretion to make that decision because “the trial court is in a better position . . . to determine the emotional condition and forthrightness of the witness and the need for counsel to use leading questions to develop the witness’s testimony.” United States v. Goodlow, 105 F.3d 1203, 1207-08 (8th Cir.1997) (citation omitted).
Finally, recognizing the deference appellate courts give to trial court rulings on leading questions, the First Circuit in United States v. McGovern held, “[o]n those and other occasions some degree of leading, skirting the fine line between stimulating an accurate memory and implanting a false one, may be allowed; because the circumstances vary from case to case, and because the trial judge is best situated to strike a practical and fair balance, he has extensive discretion over the phrasing of questions.” United States v. McGovern, 499 F.2d 1140, 1142 (1st Cir. 1974).
In conclusion, while the definition of a leading question is easy to state, it is important to remember that determining whether a question is in fact leading depends on the discretion of the trial court, which is determined on a case-by-case basis based both on the words used and the demeanor of the questioner.
*Julia Sturgill is a third-year student at Nova Southeastern University Law Center and research assistant to Professor Michael J. Dale.
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