The American courts are bound by an enormous set of rules and regulations, typically formulated in a very specific way so as to make it unambiguously clear what lawyers, judges, and witnesses may and may not do. Yet strangely enough, one of the most fundamental rules of courtroom proceedings is not clearly defined. During a direct examination an attorney is not allowed to ask leading questions, except where necessary to develop the witness’ testimony, but what makes a question leading is not really clear. The conventional definition simply states that a leading question suggests the correct answer to the witness or puts up some state of affairs for the witness to merely confirm.
Rules of Evidence
The reasoning behind this rule is pretty straightforward. Only the witness had access to the events that led to the trial, and so only the witness is in a position to provide testimony. If an attorney is allowed to ask leading questions, the witness is simply confirming the testimony offered to him/her. But when does a question suggest an answer to a witness? Some might argue that any yes/no-type question offers a preferred answer, and so attorneys should only be allowed to ask questions that contain words like what, who, or when. But such an approach would make it almost impossible for the attorney to elicit a complete testimony. Moreover, asking a question presupposes that the witness knows the answer, but how would one go about establishing that a witness in fact knows without asking it first?
So it is clear that we need more than word order alone to determine whether a question is leading. We would probably want to consider such aspects as tone of voice, specific phrasing of the question, and of course bodily cues. Combined these factors make a fixed definition impossible, and so it is up to the participants in a trial – the attorneys and the judge – to determine on the fly whether a question is or is not leading.
Non-leading practices
Even lacking a clear set of criteria, attorneys are pretty consistent in how they phrase their questions. While studying the trial State of Florida v. George Zimmerman from 2013 I notices that there are at least two relevant aspects for determining whether a question is leading or not. First, it matters whether the question is preliminary to the witness’ testimony. Preliminary questions deal with such things as the witness’ living situation, and these are frequently leading without being objected to. Second, there is a distinction between questions that address whether the witness has knowledge, ancillary questions, and questions that actually request testimony.
Preliminary questions are not necessary leading, but frequently the witness only has to provide a confirming response. In other words, the attorney puts words into the witness’ mouth. But because the question is preliminary, and typically deals with issues that are not disputed, there is no reason to object to them. To give a few examples: Zimmerman’s attorney asks his character witnesses questions such as the following:
Knowledge questions
A number of the character witnesses was summoned to testify about the nature of a voice that was hearable in the background of a 911 call. Neighboring residents had called 911 about some screaming they heard, and in the background of on one of the calls there is a voice screaming for help. The defense wanted to establish that this voice belonged to George Zimmerman, a matter that was very much in dispute as the prosecutor had called expert witnesses to testify that it was impossible to determine whose voice it is. Furthermore, it was not necessarily the case that the witnesses called by the defense actually knew whose voice it was, i.e. their knowledge of the matter was not a foregone conclusion. And so instead of simply asking them to confirm that the voice belonged to George Zimmerman, the attorney asked questions like the following:
That knowledge, the ability to testify, has to be established can be seen even better in cases where the prosecutor does object. Consider for example the following, abbreviated, dialogue:
Def: You understand now that mister Zimmerman was out of state just shortly after the shooting?
Pro: Objection. That is calling for speculation, unless she knows.
Def: Okay. Do you know where mister Zimmerman was just after the shooting?
The defense attorney is not allowed to ask the witness to confirm some state of affairs she knows about, unless it is first established that she does in fact know.
Consistency
But not all norms are applied as consistently. When dealing with what a witness heard, the attorney is not allowed to ask the question in [1] as it is leading, but the version he subsequently asks in [2] is not problematic:
The issue of leading questions is established very much in the moment. While there are practices that are applied more or less consistently, it is in the end up the attorneys and the judge to determine on the fly which questions are and which questions are not leading. Sometimes it seems that the syntactic design of the question is the problem, but sometimes it is in the choice of words or the non-verbal cues given by an attorney. The participants are thus dealing with a rule that has to be re-established time and again, which makes the trial a bit subjective. But seeing as every case is unique, guidelines are probably the best we have.
Rules of Evidence
The reasoning behind this rule is pretty straightforward. Only the witness had access to the events that led to the trial, and so only the witness is in a position to provide testimony. If an attorney is allowed to ask leading questions, the witness is simply confirming the testimony offered to him/her. But when does a question suggest an answer to a witness? Some might argue that any yes/no-type question offers a preferred answer, and so attorneys should only be allowed to ask questions that contain words like what, who, or when. But such an approach would make it almost impossible for the attorney to elicit a complete testimony. Moreover, asking a question presupposes that the witness knows the answer, but how would one go about establishing that a witness in fact knows without asking it first?
So it is clear that we need more than word order alone to determine whether a question is leading. We would probably want to consider such aspects as tone of voice, specific phrasing of the question, and of course bodily cues. Combined these factors make a fixed definition impossible, and so it is up to the participants in a trial – the attorneys and the judge – to determine on the fly whether a question is or is not leading.
Non-leading practices
Even lacking a clear set of criteria, attorneys are pretty consistent in how they phrase their questions. While studying the trial State of Florida v. George Zimmerman from 2013 I notices that there are at least two relevant aspects for determining whether a question is leading or not. First, it matters whether the question is preliminary to the witness’ testimony. Preliminary questions deal with such things as the witness’ living situation, and these are frequently leading without being objected to. Second, there is a distinction between questions that address whether the witness has knowledge, ancillary questions, and questions that actually request testimony.
Preliminary questions are not necessary leading, but frequently the witness only has to provide a confirming response. In other words, the attorney puts words into the witness’ mouth. But because the question is preliminary, and typically deals with issues that are not disputed, there is no reason to object to them. To give a few examples: Zimmerman’s attorney asks his character witnesses questions such as the following:
- It’s that friendship that brings you here today. Is that correct?
- I know that you were present during the time that proceeded the event that brings us here today and right after. Correct?
- You acknowledge that you’re a good friend of his. Correct?
Knowledge questions
A number of the character witnesses was summoned to testify about the nature of a voice that was hearable in the background of a 911 call. Neighboring residents had called 911 about some screaming they heard, and in the background of on one of the calls there is a voice screaming for help. The defense wanted to establish that this voice belonged to George Zimmerman, a matter that was very much in dispute as the prosecutor had called expert witnesses to testify that it was impossible to determine whose voice it is. Furthermore, it was not necessarily the case that the witnesses called by the defense actually knew whose voice it was, i.e. their knowledge of the matter was not a foregone conclusion. And so instead of simply asking them to confirm that the voice belonged to George Zimmerman, the attorney asked questions like the following:
- Can you identify who’s voice that is?
- Do you have an opinion who’s voice that is?
- Do you know who’s voice that is in the background screaming?
That knowledge, the ability to testify, has to be established can be seen even better in cases where the prosecutor does object. Consider for example the following, abbreviated, dialogue:
Def: You understand now that mister Zimmerman was out of state just shortly after the shooting?
Pro: Objection. That is calling for speculation, unless she knows.
Def: Okay. Do you know where mister Zimmerman was just after the shooting?
The defense attorney is not allowed to ask the witness to confirm some state of affairs she knows about, unless it is first established that she does in fact know.
Consistency
But not all norms are applied as consistently. When dealing with what a witness heard, the attorney is not allowed to ask the question in [1] as it is leading, but the version he subsequently asks in [2] is not problematic:
- Did they seem to be scream, time, scream, time, scream, time?
- Did you hear gaps in between the screams?
The issue of leading questions is established very much in the moment. While there are practices that are applied more or less consistently, it is in the end up the attorneys and the judge to determine on the fly which questions are and which questions are not leading. Sometimes it seems that the syntactic design of the question is the problem, but sometimes it is in the choice of words or the non-verbal cues given by an attorney. The participants are thus dealing with a rule that has to be re-established time and again, which makes the trial a bit subjective. But seeing as every case is unique, guidelines are probably the best we have.
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