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 may often be answerable with a yes or no (though not all yes-no questions are leading). 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 beaten his wife in the past, facts which (presumably) have not been established. A proper objection would be that this question is argumentative.
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.
Although Rule 611(c) of the Federal Rules of Evidence (and comparable rules of many states) do not prohibit leading questions on re-direct, some states have expressly limited the use of leading questions on re-direct. As a practical matter, it rests within the trial court's discretion as to what leading questions may be asked on re-direct. Generally speaking, leading questions will be more liberally permitted on re-direct in order to establish a foundation and call the attention of the witness to specific testimony elicited on cross examination. Addtionally, on re-direct, an interrogator will often ask questions which specifically seek to elicit whether an inference resulting from questioning on cross examinationns is accurate. Although these type of questions will likely result in a "yes" or "no" response, they are properly understood to be direct questions, not leading questions, and are permissible.
Psychological research into leading questions
Many of the early studies of memory (e.g. Bartlett 1932) demonstrate how memories are not accurate records of our experiences. It seems that we try to fit past events into our existing representations of the world, making the memory more coherent or make more sense for us. For example a schema is a picture we carry in our minds to describe a certain environment. If you were asked to describe a restaurant, you would think of tables, chairs, plates, etc. Because of this, it is possible for people to ask a leading question to try and manipulate our memory, and thus reinforce their case. Elizabeth Loftus is a leading figure in the field of eyewitness testimony research. She has demonstrated through the use of leading questions how it is possible to distort a person’s memory of an event. For example if you showed a person a picture of a child's room that contained no teddy bear, and then asked them, "Did you see a teddy bear?" you are not implying that there was one in the room and the person is free to answer. However if you ask, "Did you see the teddy bear?" it implies that one was in the room and the person is more likely to answer "yes", as the presence of a teddy bear is consistent with that person's schema of a child's room. [[1]]
Some exceptions to the no-leading-questions rule
- Where the witness is hostile to the examiner, or reluctant or unwilling to testify, in which situation the witness is unlikely to accept being "coached" by the questioner.
- To bring out preliminary matters (name, occupation, and other pedigree information).
- Where the memory of the witness has been exhausted and there is still information to be elicited.
- In a sensitive area, to avoid the witness from testifying to incompetent or prejudicial matter.
See also
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