Leading Questions

Attorneys must generally 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. Open-ended narrative questions are unpopular with courts; avoid them where possible.

Attorneys use clever wording and specific details when questioning witnesses to get a desired answer. When the form of the question implies the answer, it's called a leading question.

Many leading questions call for answers of either "yes" or "no." But not all questions that call for "yes" or "no" answers are leading questions. Judges follow Rule 611 of the Federal Rules of Evidence (FRE) to determine when this is appropriate in a criminal trial.

This article provides an overview of leading questions, what they are, and when they're allowed by the trial court.

What Is a Leading Question?

A leading question guides a witness to a specific response. This happens by suggesting the answer or substituting the words of the questioning attorney for those of the witness. 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 used in the murder, correct?

Witness: Yes.

A sophisticated attorney can use leading questions to get a witness to validate the attorney's theory of the case. This allows the attorney to indirectly testify through the witness' testimony, which is quite effective.

Leading questions also create perceptions by not allowing witnesses to qualify their answers. 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's testimony could not provide that specific answer. This leaves a certain perception in the minds of a jury.

When Are Leading Questions Allowed?

Per Rule 611(c), leading questions are generally not allowed on direct examination (the first time a party's attorney is questioning their own witnesses) except in limited circumstances. These types of questions have the potential to mislead testimonial evidence.

Judges have the discretion to allow leading questions during the direct examination of a witness in limited circumstances where it's necessary to develop the witness's testimony in a criminal case.

Examples include matters that:

  • Deal with simple or uncontested background issues to save the court's time
  • Will help to elicit the testimony of an unresponsive witness (for example, due to age, incapacity, or limited intelligence)
  • Involve adverse or hostile witnesses (for example, in New Jersey, this includes witnesses who either do not want to testify or those whose interests or sympathies align with the adverse party and may lead them to resist testifying truthfully)

Leading questions are also allowed during cross-examination when an attorney questions the opposing party's witnesses. This is because one of the purposes of cross-examination is to test the witness's credibility. It's also because witnesses for one party may be less forthcoming or helpful when questioned by the other party's attorney. The scope of cross-examination is limited to matters covered during direct examination.

Suppose an attorney is questioning a friendly witness and asks a leading question. In that case, the other party's attorney will likely object to prevent the introduction of unfavorable evidence or testimony.

An objection is a reason or argument raised by the opposing party to:

  • Contest the admission of evidence
  • Assert a violation of the rules of criminal procedure
  • Preserve a legal issue for an appellate court (Court of Appeals or Supreme Court)

A judge can sustain (agree) or overrule (disagree) an objection. For example, suppose a witness is unavailable to testify. In that case, the opposing counsel will likely object to the admission of any prior statements because they cannot cross-examine the witness.

Want to Learn More About Leading Questions? Talk to an Attorney

Criminal law attorneys use a variety of courtroom tools to elicit evidence and make a stronger case for their clients. An attorney can advocate and guide you through the trial process. Contact an experienced criminal defense attorney near you if you're facing criminal charges.

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