Leading question
Encyclopedia
In common law
systems that rely on testimony
by witnesses, a leading question or suggestive interrogation is a question that suggests the answer or contains the information the examiner is looking for. For example, this question is leading:
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:
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 question
s 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 loaded questions: questions that are objectionable because they contain implicit assumptions
. The classic example is:
This type of 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 assuming facts not in evidence (or argumentative, if the case is about the alleged beating).
, 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 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. Additionally, on re-direct, an interrogator will often ask questions which specifically seek to elicit whether an inference resulting from questioning on cross examinations 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.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
systems that rely on testimony
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
by witnesses, a leading question or suggestive interrogation 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
Yes and no
Yes and no are two words for expressing affirmatives and negatives respectively in English . Early Middle English had a four-form system, but Modern English has reduced this to a two-form system consisting of 'yes' and 'no'. Some languages do not answer yes-no questions with single words meaning...
(though not all yes-no question
Yes-no question
In linguistics, a yes–no question, formally known as a polar question, is a question whose expected answer is either "yes" or "no". Formally, they present an exclusive disjunction, a pair of alternatives of which only one is acceptable. In English, such questions can be formed in both positive...
s 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
Hostile witness
A hostile witness is a witness in a trial who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination.A witness called by the opposing party is presumed hostile...
or on cross-examination
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
, but not on direct examination
Direct examination
The Direct Examination or Examination-in-Chief is one stage in the process of adducing evidence from witnesses in a court of law. Direct examination is the questioning of a witness by the party who called him or her, in a trial...
.
It is important to distinguish between leading questions and loaded questions: questions that are objectionable because they contain implicit assumptions
Fallacy of many questions
A loaded question is a question which contains a controversial assumption such as a presumption of guilt.Such questions are used rhetorically, so that the question limits direct replies to be those that serve the questioner's agenda...
. The classic example is:
- Have you stopped beating your wife?
This type of 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 assuming facts not in evidence (or argumentative, if the case is about the alleged beating).
United States
While each state has its own rules of evidenceEvidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
, many states model their rules on the Federal Rules of Evidence
Federal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....
, 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
Direct examination
The Direct Examination or Examination-in-Chief is one stage in the process of adducing evidence from witnesses in a court of law. Direct examination is the questioning of a witness by the party who called him or her, in a trial...
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. Additionally, on re-direct, an interrogator will often ask questions which specifically seek to elicit whether an inference resulting from questioning on cross examinations 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.
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
- Suggestive questionSuggestive questionA suggestive question is one that implies that a certain answer should be given in response, or falsely presents a presupposition in the question as accepted fact. Such a question "tricks" the person into answering a specific way that may or may not be true or consistent with their actual...
, similar to leading question but manipulates the respondent to answer in a specific way. - Fallacy of many questionsFallacy of many questionsA loaded question is a question which contains a controversial assumption such as a presumption of guilt.Such questions are used rhetorically, so that the question limits direct replies to be those that serve the questioner's agenda...
, also known as loaded questions