Anyone who’s ever watched crime TV or a police procedural drama is familiar with the concept of a leading question, but — when compared with the dramatization — the reality is much more complicated.
At its most basic level, a leading question is one that directs a witness toward a particular conclusion, by way of being overly suggestive. Not only do different authorities often disagree on whether or not a given question qualifies as leading, but there are actually situations in court in which a leading question is permitted, and even appropriate. This includes when a witness is hostile, and when a witness is being cross-examined, but there are still constraints on how a leading question may be phrased in either case.
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Here are five examples of leading questions from actual court cases, with explanations provided from each; any names provided have been changed for the purposes of this writing.
“Did you see Michael at 3 p.m.?” would qualify, under most circumstances, as a leading question; it plants the suggestion of the corresponding time period in the subject’s mind. Eyewitness testimony is often unreliable, as it is prone to unclear recollections, false memories, and personal subjectivity. Simply mentioning a quality or value that differs from the actuality of what occurred can cause a witness to provide false information, often without even realizing it. In a criminal trial, the difference between 2:45 p.m. and 3 p.m. might be profound, but most people wouldn’t consider it to be of much importance. The correct phrasing for this question would be more along the lines of “At what time did you see Michael on the day in question,” assuming it was already established that the witness had seen the individual on that particular day.
Too Many Variables
“Did Janice strike you in the face, with her fist?” would qualify as a leading question; there are too many variables in the question for a simple, reliable answer. This is a relatively simple question, but the same issue can arise in circumstances which are much more complicated, wherein each variable needs to be addressed separately. The correct course of action, given the example provided, would be to ask the witness “did Janice do anything to you,” followed by separate establishment questions for each subsequent variable. “Where did Janice strike you?” and “With what did Janice strike you?” would be viable. In this case, the witness might not consider the difference between a closed fist and a large rock to be of much importance, when it could in fact have profound legal implications.
Glossing Over Important Details
“Mr. Renfield owned this revolver, correct?” followed by “And this is the same revolver that was found at the murder scene, correct?” is an example of how a clever attorney might try to bias the jury against a defendant across a series of two or more questions, which may or may not be individually leading, but which combine to produce the same effect. In the example provided, both of these facts might be true, but the witness is legally constrained from providing any additional information beyond that which is directly relevant to the questions being asked. It is easy to see how the jury might be unfairly biased by the information presented in the example, despite the fact that Mr. Renfield reported his revolver as stolen two weeks before the murder was committed. If the prosecuting attorney doesn’t ask about the theft, the witness has no legal way to inform the jury of its status at the time the murder was committed.
Asserting Unconfirmed Qualities
“You told Jennifer that you would have her order completed by Friday, didn’t you?” is a forceful and assertive question, which would invariably qualify as leading if delivered under direct examination of a witness. In this case, the attorney directly suggests a response, then badgers the witness to confirm the answer, instead of providing what they know to be true. Studies show that this kind of technique frequently provokes a response that is either grossly skewed, or outright false. It creates a stressful situation, not unlike that of an interrogation, and the witness instinctively looks for a way out of the situation by providing what they think the attorney wants to hear. In the past, many people have been surprised by their own willingness to do this, once faced with the unaccustomed discomfort of being on the witness stand.
Jury Manipulation through Reverse Psychology
Perhaps counter-intuitively, a series of questions might be offered which, at first glance, seem to be exactly the opposite of leading. They might come across as almost strangely open-ended, even to the point of being virtually irrelevant. This is a common tactic used by attorneys to try and instill doubt in the jury by making the witness appear unreliable: the way the attorney presents their questions suggests that the witness’ ability to recall details should itself be called into question. This is one of the most difficult types of leading questions to confront as such, as it virtually requires a protracted series of questions which are individually uncontestable: the attorney might remind the witness (and thereby the jury) that it was dark out during an established time frame in which a crime occurred. They might encourage the witness to “take as much time as you need,” to “think hard,” while seemingly reassuring them that “these kinds of details can be difficult to recall accurately.”
For More Information
The matter of what constitutes a leading question represents a complicated, frequently contentious aspect of the American legal system, given the amount of subjectivity involved. Learn more about leading questions and other rules of evidence, including the permitted scope of cross-examination.