Beware of leading questions in direct examination
Direct examination is considered to be the most difficult part of a trial, even more difficult than most cross-examinations. My years as a Baltimore trial lawyer have taught me that one of the main challenges of direct examination is the prohibition against asking leading questions. The reason leading questions are prohibited on direct is that the jury must hear evidence from the witness and not from the lawyer.
Such questions can be posed only in limited circumstances, for example, when confronting a hostile witness, reviewing uncontroversial matters, questioning children or senior citizens, or introducing new topics in your examination with a topical oral sentence.
What then is the distinction between leading and non-leading questions? Simply stated, a leading question suggests the answer. A non-leading question does not. “It rained last night?” is a leading question. “Did it rain last night?” or “Do you recall whether or not it rained last night?” are both non-leading questions.
Asking non-leading questions creates difficulties in controlling the testimony and the witness. When you ask skillful leading questions, as permitted on cross-examination, you control the testimony by almost testifying for the witness: “It rained last night?” “You came home after midnight?” When you must ask non-leading questions (“Can you tell us what the weather was last night?” you could get more explanation than you want. (“Well, I can’t recall, but I do remember that the road was very slippery and cars were skidding all over the place.”) Many lawyers have been stunned by a witness’s response to an open-ended question on direct exam. Frequently even the most careful preparation of a witness is no safeguard against the witness’s desultory response to your questions.
As you ask questions during direct, beware of the distinction between prohibited leading questions and leading questions that may be tolerated. These include questions that are used to save time and do not relate to important facts, or that refer to facts that are generally in evidence. “You attended the Spago tea”” is leading, but it is more efficient than “Did you attend the Spago tea at noon on June 11, 2000.” If the record is saturated with testimony that the witness was at the Spago tea at noon on June 11, the shorter, leading question will probably be tolerated by opposing counsel and the court.
Sometimes in the heat of trial you may have trouble asking a non-leading question after an objection is sustained. This predicament is not unusual, especially for young trial lawyers. Don’t panic. Try rephrasing the query using the word “whether.” For example: “You then went to the bar after the reception?” could be rephrased: “Can you tell us whether you went to the bar after the reception?”
Generally, however, leading questions should be avoided on direct and saved for cross-examination, where you can use your questioning to greater control the testimony.