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When can you ask a leading question in a criminal case?

On Behalf of | Aug 4, 2017 | Criminal Defense

Most of us have seen some sort of crime show or movie that portrays a trial taking place in a courtroom. The victim is testifying and the prosecutor is asking her questions. To drive home a point, he asks, “Jennifer, isn’t it true that the defendant had been stalking you for months?” “Yes,” she yells, “Months and months!”

While this makes for good television drama, it is not allowed in real-life and a good defense attorney would shout, “Objection!” before Jennifer gets a change to answer.

Why not?

The kind of question Jennifer was asked is called a “leading” question. Leading questions are not allowed on direct examination—meaning that in most cases, a prosecutor cannot ask them. In this case, the proper way to ask Jennifer for the information needed would have been, “Has the defendant been stalking you?” If Jennifer answered yes, the prosecutor can then ask how long the behavior has been happening (months and months).

Leading questions can often make testimony sound dramatic and in fact, are often used to make a witness sound non-credible and put them on the defensive: “You’ve never liked the defendant, have you Jennifer?”

So when are leading questions allowed? There are two primary times leading questions can be employed:

On cross-examination: As mentioned above, leading questions are used to discredit a witness. When a prosecutor is presenting a case, it is called the case-in-chief. He may only ask direct questions of any witness: “Jennifer, how long have you known the defendant?” or “Jennifer, how did you meet the defendant?”

Once the prosecutor is done questioning the witness, it is the defense attorney’s turn. This is called “cross-examination”. In order to show that Jennifer’s story has more to it than she is admitting, the defense attorney might ask a leading question: “Isn’t is true, Jennifer that you used to date the defendant?” or “You haven’t liked my client since he started dating your best friend, have you Jennifer?”

The hostile witness: Generally, cross-examination is the appropriate time for leading questions. There is, however, one exception: When the witness is hostile. What does that mean? A hostile witness is someone who does not want to testify at all, or someone who might prefer to be testifying for the defense but whom the prosecutor has called first.

The prosecutor must ask that the witness be declared hostile and explain why. The judge then makes the final decision. Once a witness is a declared a hostile witness, leading questions may be asked: “You don’t want to be here today, do you Susan?” or “Isn’t it true, Susan, that the defendant stalked you before you started dating him?”

There are specific evidentiary rules that each attorney must follow. These evidentiary rules are in place to protect the constitutional rights of the defendant and to ensure a fair trial.


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