Legal Definitions - leading the witness

Leading the witness refers to a specific type of question asked during a legal proceeding, such as a trial or a deposition, that suggests the desired answer or puts words into the witness's mouth. The fundamental principle of witness testimony is that the information should come directly from the witness's own memory and observations, not from the attorney prompting them.

For this reason, attorneys are generally prohibited from asking leading questions when they are questioning a witness they have called to testify (a process known as direct examination). This rule helps ensure the integrity of the testimony, making sure it reflects the witness's independent recollection.

However, there are important exceptions where leading questions are permitted:

• Cross-examination: When an attorney is questioning a witness called by the opposing side (during cross-examination), leading questions are typically allowed. This enables the attorney to challenge the witness's testimony, test their credibility, or highlight inconsistencies.
• Hostile or Adverse Witness: If a judge determines that a witness called by an attorney is "hostile" or "adverse" (meaning they are uncooperative, biased against the questioning party, or unwilling to provide direct answers), the attorney may then be allowed to ask leading questions to try and elicit the necessary information.

Here are some examples to illustrate the concept:

• Example 1: Improper Leading Question During Direct Examination

  Imagine a prosecutor is questioning their own witness, a bystander, about a car accident. The prosecutor asks, "You saw the red truck speed through the intersection without stopping, didn't you?"

  This is a leading question because it suggests the specific details of the event (the truck's color, its speed, and its failure to stop) that the witness should be describing in their own words. A proper, non-leading question would be, "What did you observe about the truck's movement at the intersection?" or "Can you describe what happened at the intersection?"

• Example 2: Proper Leading Question During Cross-Examination

  During a civil trial, a defense attorney is cross-examining an expert witness called by the plaintiff. The defense attorney asks, "Doctor, your report doesn't include any analysis of the alternative treatment options, does it?"

  This is a leading question, but it is proper because it occurs during cross-examination. The defense attorney is allowed to challenge the expert's report and highlight potential omissions or weaknesses in their testimony by suggesting a particular answer.

• Example 3: Proper Leading Question to a Hostile Witness

  In a criminal case, the prosecution calls a witness who is a close friend of the defendant and is clearly reluctant to provide testimony that might incriminate their friend. After the witness repeatedly gives evasive answers, the judge declares them a "hostile witness." The prosecutor then asks, "You saw the defendant hide the stolen merchandise in the back room on the night of the 15th, didn't you?"

  This is a leading question, and it is now proper because the judge has declared the witness hostile. The prosecutor is permitted to use leading questions to try and extract specific information that the witness is otherwise unwilling to provide directly and truthfully.