DiCindio Law LLC | February 4, 2015 | Criminal Procedure
Use and Abuse of Leading Questions: What are they and when are they allowed?
Everyday, in criminal courts across Pennsylvania, there is a fine line that is walked with what each lawyer believes is a “leading” question. Before getting into court and litigating a matter, any matter, it is important for an attorney to understand what a leading question is and when it is permitted to be used.
The following should give a brief overview of the concept of “leading” a witness – and shed light on what kinds of questions are to be viewed as leading questions.
Under Pa. Rule of Evidence 611(c) the times that counsel may ask leading questions are delineated. The rule states:
“Leading questions should not be used on the direct or redirect 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; a witness so examined should usually be interrogated by all other parties as to whom the witness is not hostile or adverse as if under redirect examination.”
Pa. R. Evid. 611(c)(emphasis added).
A leading question, as defined by the Pennsylvania Supreme Court, is one that puts the desired answer in the mouth of the witness. Com. v. Chambers, 599 A.2d 630 (Pa. 1991) citing Com. v. Dreibelbis, 426 A.2d 1111, 1116 (1981).
The language of Rule 611(c) regarding the use of leading questions when questioning one’s own witness is to be liberally construed. Chambers, 599 A.2d 630.
The Pennsylvania Supreme Court held that it is within the discretion of the trial court to govern when leading questions may be permitted in order to “permit parties to elicit any material truth without regard to the technical considerations of who called the witness.”
Chambers, 599 A.2d 630 at 640, citing Commonwealth v. Deitrick, 70 A. 275 (Pa. 1908). This discretion does not have a defined limit, but rather is to be exercised and limited by the interests of fairness and justice on a case by case basis. Chambers, 599 A.2d 630 at 640.
The trial court has wide discretion in controlling the use of leading questions. Com. v. Lambert, 765 A.2d 306 (Pa. Super. 2000). This wide discretion will not be disturbed on appeal absent a clear abuse of the discretion afforded to the trial court.
Commonwealth v. Jones, 487 Pa. 183, 185, 409 A.2d 25, 26-27 (1979); Commonwealth v. Chmiel, 777 A.2d 459 (2001); Commonwealth v. Reidenbaugh, 282 Pa.Superior Ct. 300, 422 A.2d 1126 (1980); Commonwealth v. Guess, 266 Pa.Superior Ct. 359, 404 A.2d 1330 (1979).
Pennsylvania law has recognized numerous times when leading questions during direct examination are permitted.
- Commonwealth v. Reeves, 267 Pa. 361, 110 A. 158, Pa., December 12, 1919 (When a party is surprised by a witness unexpectedly turning hostile);
- Com. v. Lambert, 765 A.2d 306 (Pa.Super. 2000)(When a witness is hostile, proves to be hostile or the party calling the witness is surprised by testimony of the witness inconsistent with prior statements);
- Com. v. Tavares, 555 A.2d 199 (Pa. Super 1989)( on direct examination when there is difficulty in getting direct and intelligible answers);
- Commonwealth v. Smolko, 666 A.2d 669 (Pa. Super 1992)(the victim is unable to communicate due to a disease which only allows for limited communication, such as only being able to raise either a left or right arm to answer yes or no);
- Commonwealth v. Polston, 616 A.2d 669 (Pa. Super 1992)(when questioning a child witness because they are generally easily intimidated in a courtroom setting);
- Katz v. St. Mary Hosp., 816 A.2d 1125 (Pa.Super. 2003)(when leading questions are needed due to the length and complexity of the testimony as long as the elicited responses are of information that would have been admissible despite the leading format);
- Ward v. City of Pittsburgh, 44 A.2d 553 (Pa. 1945)( Where a witness has a speech affliction which prevents him or her from speaking in the usual manner);
- Fish v. Gosnell, 463 A.2d 1042 (Pa.Super. 1983)(if solely an isolated leading question);
- Com. v. Smith, 115 A.2d 782 (Pa.Super 1955)(When a witness is reluctant to testify);
- Pennsylvania Labor Relations Bd. v. Butz, 192 A.2d 707 (Pa. 1963)(if the use of the leading questions does not affect the substance of the direct evidence, i.e. it was not viewed as less credible just because the testimony was elicited through leading questions);
- Commonwealth. v. McLean, 1995 WL 632696 Pa.Com.Pl. (1995)(to refresh a witnesses recollection or jog their memory outside of the presence or hearing of the jury).
It is well settled that the mere fact of a question requiring, or suggesting, a yes or no answer does not automatically make the question leading. Waltosh v. Pennsylvania R. Co., 259 Pa. 372, 103 A. 55 (1918); Foster v. Sol Greisler & Sons, 29 A.2d 103 (Pa. Super 1942).
The United States Supreme Court noted that in deciding whether a question is leading is a question of form. The Court, in a footnote, discussed seven of seventeen “plainly leading” questions that were asked by counsel.
This was done by quoting the phrases which made them leading. Of the seven “plainly leading” questions referenced in footnote 11 of Ohio v. Roberts four of them are what would be called “elliptical” interrogatories that take the form of statements.
Elliptical interrogatories are questions in which the verb, and at times the subject, is removed, and the intonation is such that it suggests a “yes” or “no” answer. The footnoted stated:
“No less than 17 plainly leading questions were asked, as indicated by phrases in counsel’s inquiries: “is[n’t] it a fact . . . that”; “is it to your knowledge, then, that . . . ”; “is[n’t] that correct”; “you never gave them . . . ”; “this wasn’t then in the pack . . . ”; “you have never [not] seen [discussed; talked] . . . ”; “you never gave. . . . ”
Footnote 11, Ohio v. Roberts.
While Ohio v. Roberts was later overruled by the Crawford v. Washington, 541 U.S. 36 (2004) decision on other grounds, footnote eleven is support for the modern trend of allowing cross-examination to take the form of elliptical questions; questions that express interrogatory emotion to the witness through inflection and intonation, rather than by words alone.
It must be remembered, that while on paper these questions do not always read as interrogatories, when conveyed in court they are expressed and understood as such.
How evidence is elicited from a witness on the stand is crucial to how it is perceived and understood by the Judge and Jury, alike. Knowing these rules and the principles involved in them can give any trial lawyer the added benefit of understanding when to use leading questions and how to do so effectively.
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