John B. Stevens Jr. 2016-05-03 03:44:51
How to deal with leading questions. Trial participants, including attorneys as well as judges, would have to agree that leading questions are more often used on direct examinations of witnesses while open-ended questions are more often asked during cross-examinations. This practice is contrary to conventional wisdom. Are we headed in the wrong direction? APPLICABLE LAW Texas Rule of Evidence 611(c) and Federal Rule of Evidence 611(c) identically provide that: 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.1 Rule 611(c) continues the traditional view, that the suggestive powers of the leading question are generally undesirable. 2 However, numerous exceptions to this rule of law have been recognized. IDENTIFYING LEADING QUESTIONS Leading questions are asked in a way that suggests the desired answer.3 They are framed so that the answers enable the witness to essentially “echo the words of counsel.”4 In other words, leading questions instruct the witness how to respond.5 The most obvious forms of leading questions include: “Isn’t it true that ... ?”; “Didn’t ... ?”; “You’re telling the truth, aren’t you?” Also, questions ending with “correct” or “right,” such as, “The sky was clear, correct (right)?” A good test to determine whether a question is leading is if the witness could reasonably answer, “That’s correct.”6 Conversely, questions beginning with interrogation words—such as who, what, where, when, why, or how—are open-ended. They do not necessarily restrict answers to alternatives and tend to be nonleading. More difficult to determine are questions that begin with “Did,” such as, “Did you get a good look at the robber?” On its face, such a question calls for a yes or no response and is referred to as a polar question as it presents a pair of alternatives for a response, of which one or the other is acceptable. The mere fact that questions may be answered by a simple yes or no does not mean they are necessarily leading.7 The key feature for determining whether questions are leading is whether they insinuate particular answers or provide the witness with a false memory.8 They probably are leading if every answer to a series of questions is the same. They also are probably leading if such questions begin with “And,” such as, “And, did you see the robber?” Whether a question is leading may depend on the way it is asked rather than what is asked. Nonverbal acts by the questioner such as gestures, tone of voice, and inflection of particular words can make a question leading by the suggestive way it is asked. For example, it is leading to point or nod to the defendant and ask, “Do you see the person who assaulted you in the courtroom?” Questions that include the assumption of facts in dispute can also be leading, such as, “Did the defendant stab you with a pointed object in a manner that was capable of causing death or serious bodily injury?” Again, leading questions may infer the answer by the way they are asked. DIRECT Although the fundamental rules of law regarding leading questions found in Rule 611(c) of the Texas and federal rules of evidence state that “[l]eading questions should not be used on direct examination except as may be necessary to develop the witness’s testimony,” it is important to note that the use of leading questions on direct examination is not forbidden. Rule 611(c) clearly contemplates that leading questions may be acceptable.9 Although leading questions have been deemed suggestive and generally undesirable, numerous exceptions have been recognized allowing leading questions during direct examination. For example, when a party calls a “hostile” witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.10 Similarly, leading questions are allowed if witnesses are uncooperative, biased, evasive, or reluctant.11 Leading questions may also be used during the direct examination of children.12 Leading on direct has been approved to develop the testimony of a child witness who exhibits nervousness.13 Case decisions consistently reflect that the general rule against leading questions on direct examination is relaxed with child witnesses.14 As Texas’s highest criminal court has stated, “The asking of leading questions is seldom a ground for reversal (especially where a child is testifying).”15 Leading questions can be allowed during direct examination of witnesses with learning disabilities, memory recall problems, or those with difficulty in communicating.16 They have also been allowed on direct when infrequently and prudently used to develop testimony of soft-spoken or frightened witnesses.17 Leading questions are also allowed for prefatory questions, for purposes of laying the foundation for the admission of evidence, and for other undisputed preliminary matters.18 However, allowing otherwise objectionable leading questions seems to primarily be to expedite the proceedings, especially where matters are not in dispute. This practice is exhibited by attorneys who refrain from objecting for leading and judges who routinely overrule objections to leading questions. Furthermore, despite the general rule disfavoring the use of leading questions on direct examination, it has been deemed sound strategy for opposing counsel to choose not to object where leading questions relate to evidence that is otherwise admissible, cumulative, would inevitably be admitted, or would call attention to damaging evidence.19 CROSS-EXAMINATION Law has historically placed primary reliance for the ascertainment of truth upon the test of cross-examination.20 Indeed, Francis Wellman’s primer on cross-examination from a century ago states, “No substitute has even been found for cross-examination as a means of separating truth from falsehood.”21 To assist in ascertaining the truth, Texas Rule of Evidence 611(c) provides that “ordinarily, leading questions should be permitted on cross-examination.”22 This conforms to tradition in making the use of leading questions on cross-examination a matter of right.23 The use of “ordinarily” in the rule allowing leading questions on cross-examination provides the basis for its denial by the trial court when it becomes cross-examination in form rather than fact. The Supreme Court Advisory Committee’s notes provide two examples for disallowing leading questions, namely, “when cross examining a party by his or her own counsel after being called by the opponent (‘savoring more of re-direct’) or during cross of an insured defendant who proves to be friendly to the plaintiff.”24 Thus, trial courts are given some discretion to limit the use of leading questions in cross-examination of “friendly witnesses.”25 APPEALS Let’s assume adverse rulings concerning leading questions are the basis of an appeal. Good luck with that. There is an almost universal unwillingness by appellate courts to reverse trial verdicts over misuse of leading questions.26 This is mainly because the use of leading questions on direct examination is a matter within the broad and sound discretion of the trial court.27 To prevail on appeal, it must be shown that the trial court abused its discretion.28 No abuse of discretion is shown unless a party demonstrates undue prejudice by virtue of wrongfully allowed leading questions.29 Courts have also required a showing of irreparable harm in order to rise to abuse of discretion.30 These high thresholds for appeal have proven virtually unreachable. A judge’s discretion in allowing leading questions is abused where the question has the effect of supplying the witness with false memory.31 Court decisions have noted that any error in this regard is harmless where the challenged leading questions dealt with matters that were otherwise placed into the trial record through other admissible evidence.32 COURT DISCRETION Finally and possibly most important to this subject matter is to note that trial courts have broad—but not limitless— discretion in managing the course of a trial.33 Their discretion in the mode and order of trial interrogation and presentation is limited to that which is reasonable and in the efficient pursuit of justice.34 Therefore, in using their discretion properly, trial judges should remember that their duty in conducting trials extends far beyond ruling on objections and preserving decorum in the courtroom. It includes an affirmative obligation to exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to make those procedures effective for (1) determining the truth, (2) avoiding wasting time, and (3) protecting witnesses from harassment or undue embarrassment.35 This trinity of guidance for trial courts’ control over witness examination and evidence presentations begins with the clarion call for determining the truth—a most honorable objective as echoed by Rule 102 of the Texas and federal rules of evidence, which identically state that the rules should be construed to fairly administer proceedings to the end of ascertaining the truth and seeing a just determination, of which attorneys as well as judges should be mindful.36 The author would like to give a special thanks for the completion of this article to Ed Tanner, general staff counsel for Jefferson County criminal courts, and Rene Mulholland, court reporter for the Jefferson County Criminal District Court. NOTES 1) Fed. R. Evid. and Tex. R. Evid. 611(c). 2) Notes of Advisory Committee, Fed. R. Evid. and Tex. R. Evid. 611(c). 3) Implement Dealers Mutual Ins. Co. v. Castleberry, 368 S.W.2d 249, 253 (Tex. Civ. App.— Beaumont 1963, writ ref’d n.r.e.). 4) GAB Business Services, Inc. v. Moore, 829 S.W.2d 345, 351 (Tex. App.—Texarkana 1992, no writ). 5) Myers v. State, 781 S.W.2d 730, 733 (Tex. App.—Fort Worth 1989, pet. ref’d). 6) See e.g., Wheeler v. State, 433 S.W.3d 650, 655-56 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). 7) Newsome v. State, 829 S.W.2d 260, 269 (Tex. App.—Dallas 1992, no pet.). 8) See United States v. Johnson, 495 F.2d 1097, 1101-02 (5th Cir. 1974). 9) Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000). 10) Tex. R. Evid. 611(c); United States v. Sutherland, 463 F.2d 641, 650 (5th Cir. 1972). 11) Gill v. United States, 285 F.2d 711, 712-13 (5th Cir. 1961); Notes of Advisory Committee, Fed. R. Evid. and Tex. R. Evid. 611. 12) Clark v. State, 952 S.W.2d 882, 886 (Tex. App.—Beaumont 1997, no pet.). 13) United States v. Carey, 589 F.3d 187, 191-92 (5th Cir. 2009). 14) Moon v. State, 856 S.W.2d 276, 279 (Tex. App.—Fort Worth 1993, pet. ref’d). 15) Uhl v. State, 479 S.W.2d 55, 57 (Tex. Crim. App. 1972). 16) Trevino v. State, 783 S.W.2d 731, 733 (Tex. App.—San Antonio 1989, no pet.). 17) United States v. Grey Bear, 883 F.2d 1382, 1393 (8th Cir. 1989). 18) Unites States v. Costa, 691 F.2d 1358, 1363 (11th Cir. 1982). 19) Wheeler v. State, 433 S.W.3d at 655-56; Young v. State, 10 S.W.3d 705, 713 (Tex. App.— Texarkana [6th Dist.] 1999, pet. ref’d). 20) United States v. De Sisto, 329 F.2d 929, 934 (2d Cir. 1964), cert. denied, 377 U.S. 979 (1964). 21) Francis L. Wellman, THE ART OF CROSS-EXAMINATION 22 (4th ed. 1986). 22) Tex. R. Evid. 611(c); GAB Business Services, Inc. v. Moore, 829 S.W.2d at 351. 23) Notes of Advisory Committee on Proposed Rules. 24) Notes of Advisory Committee on Proposed Rules. 25) GAB Business Services, Inc. v. Moore, supra at 351; Cecil v. T.M.E. Investments, Inc., 893 S.W.2d 38, 47 (Tex. App.—Corpus Christi 1994, no writ). 26) Hernandez v. State, 643 S.W.2d 397, 400-01 (Tex. Crim. App. 1982). 27) Wise v. State, 223 S.W.3d 548, 558 (Tex. App.—Amarillo [7th Dist.] 2007, pet. ref’d). 28) Wyatt, 23 S.W.3d at 28. 29) Newsome, 829 S.W.2d at 270. 30) Wyatt, 23 S.W.3d at 28. 31) Johnson, 495 F.2d at 1101. 32) Coronado v. Employees National Insurance Co., 577 S.W.2d 525, 531 (Tex. Civ. App.—El Paso), aff’d, 596 S.W.2d 502 (Tex. 1979). 33) Dang v. State, 154 S.W.3d 616, 619 (Tex. Crim. App. 2005). 34) Id. 35) Tex. R. Evid. 611(a); Cranberg v. Consumers Union of U.S., Inc., 756 F.2d 382, 391-92 (5th Cir. 1985). 36) Fed. R. Evid. 102 and Tex. R. Evid. 102. HON. JOHN B. STEVENS JR. has served as judge of the Jefferson County Criminal District Court since 2006. He was an assistant U.S. attorney for the Eastern District of Texas, receiving the Justice Department’s highest honor, the U.S. Attorney General’s Award for Exceptional Service, as one of the prosecutors of the James Byrd dragging death cases.
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