LEADING (L)
FRE 611
On direct examination, questions which put the desired answer in the mouth of the witness by suggesting the desired answer are objectionable leading questions. On direct examination, the witness is supposed to be testifying, not the attorney. Rule 611(c) only allows leading questions on cross-examination, and therefore “Leading” is never an available objection on cross-examination.
Examples
- “Mrs. Lincoln, describe for us the horrific incident at Ford’s Theater last year.”
- “Mrs. Lincoln, your husband was killed by a shot from a Derringer, right?”
- “After a few minutes, your husband was shot, correct?”
- “Was it absolutely terrorizing to hear that loud bang?”
FRE 611. Mode and Order of Examining Witnesses and Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
Summary
Rule 611 deals generally with the scope of a trial judge's authority to exercise reasonable control over the trial proceedings, including the mode of interrogating witnesses and presenting evidence. The rule contemplates flexibility and discretion so that the truth will be ascertained and the interests of the public and the parties promoted. In short, the three main objectives of Rule 611 are to discover the truth in an efficient manner, avoid wasting time, and protect the witnesses from improper examination questions.
Possible Objections under Rule 611: Argumentative, Compound, Narrative, Leading, Mischaracterization, Nonresponsive, Asked & Answered, Vague, Facts not in Evidence
Case Law (Leading)
- U.S. v. Cisneros-Gutierrez, 517 F.3d 751 (5th Cir. 2008) (leading questions were permitted where witness was hostile and had extensive “memory problems”)
- U.S. v. Rojas, 520 F.3d 876 (8th Cir. 2008) (leading questions permitted of ten-year-old victim of aggravated sexual abuse)
- United States v. Anderson, 446 F.3d 870 (8th Cir. 2006) (Generally, leading questions are not permitted during direct examination, but where they are necessary for the development of witness’s testimony, they may be permitted at the discretion of the trial judge)
- United States v. Londondio, 420 F.3d 777 (8th Cir. 2005) (Trial judge may permit the use of leading questions on direct examination when eliciting information on preliminary matters)
- Stine v. Marathon Oil Co., 976 F.2d 254 (5th Cir. 1992) (“any good trial advocate who is allowed leading questions can both testify for witness and argue the client’s case”)