Legal Definitions - leading

In legal contexts, the term "leading" refers to a type of question asked of a witness during a trial or deposition that suggests the desired answer or puts words into the witness's mouth. The primary purpose of rules against leading questions is to ensure that the testimony presented comes directly from the witness's own memory and perception, rather than being influenced or shaped by the attorney asking the questions.

Here's how the concept of leading questions typically applies:

• When Leading Questions Are Generally Not Allowed: Attorneys are usually not permitted to ask leading questions when they are questioning their own witnesses during what is known as "direct examination." This is because their own witnesses are presumed to be cooperative and generally favorable to their side of the case. Allowing leading questions in this situation could enable the attorney to subtly coach the witness or distort their testimony. If an attorney asks a leading question during direct examination, the opposing attorney will typically object, and the judge will likely "sustain" (uphold) the objection, requiring the question to be rephrased.
• When Leading Questions Are Permitted: Leading questions are generally allowed during "cross-examination," which occurs when an attorney is questioning a witness who was called by the opposing side. In this scenario, the witness is presumed to be less cooperative or even adverse to the cross-examining attorney's position. Leading questions are considered a legitimate tool to challenge the witness's testimony, clarify details, or test their credibility. Leading questions may also be permitted if a judge declares a witness "hostile," meaning they are uncooperative even when called by the attorney's own side.

Examples:

• Example 1: Improper Leading Question During Direct Examination

  Imagine a personal injury lawsuit where a plaintiff's attorney is questioning their client, who was a passenger in a car involved in an accident. The attorney asks, "You clearly saw the other driver texting on their phone right before they swerved into your lane, didn't you?"

  Explanation: This is a leading question because it suggests the specific details of what the witness saw ("clearly saw the other driver texting," "swerved into your lane") and prompts a "yes" or "no" confirmation. The attorney is essentially putting words into the witness's mouth. The opposing attorney would likely object to this question, and the judge would sustain the objection, requiring the plaintiff's attorney to rephrase it (e.g., "What did you observe the other driver doing before the accident?"). This ensures the testimony comes from the witness's independent recollection.

• Example 2: Permissible Leading Question During Cross-Examination

  Consider a criminal trial where a prosecutor is cross-examining a defense witness who claims to have seen the defendant at a different location at the time the crime was committed. The prosecutor asks, "Isn't it true that you only saw the defendant from a distance of over 100 feet, and it was dark and foggy that evening?"

  Explanation: This is a leading question because it suggests facts ("only saw the defendant from a distance of over 100 feet," "dark and foggy") and seeks confirmation from the witness. However, it is permissible because it is asked during cross-examination. The prosecutor is challenging the witness's ability to accurately identify the defendant and is using leading questions to highlight potential weaknesses in their testimony and test their credibility.