What is a Leading Question?
Leading questions are questions that tend to suggest an answer to the witness to whom the question is directed towards. Leading questions are those that typically prompt the witness to provide a predetermined answer. New Jersey case law has defined a leading question as, “one that suggests what the answer should be or contains facts that should originate with the witness.”
Leading questions can be useful during the examination of a witness. Leading questions can enable the attorney to control the witness and can help to paint the picture to the jury in the way and order in a way you want it presented. Leading questions can also help protect the jury from being misled by the witness. If the witness is giving an evasive or confusing answer, leading questions can help to clarify and control the witness's testimony.
Utilizing Leading Questions in New Jersey
In New Jersey, the general rule is that leading questions are only allowed during the cross-examination of a witness but not during the direct examination of a witness that was called on a party’s case in chief. Leading questions are generally not allowed during direct examination as they can lead the witness to give an answer that is not their own. This is because leading questions have a tendency to suggest an answer to the witness. However, during the cross-examination of a witness, leading questions are admissible as they can help expose inconsistencies within the witness’s testimony.
N.J.R.E. 611 modified the general rule stated above and allows an attorney that calls an adverse party as a witness for their client’s case in chief to utilize leading questions during direct examination.
Leading questions should not be used on direct examination except as necessary to develop the witness’ testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls an adverse party or a witness identified with an adverse party, or when a witness demonstrates hostility or unresponsiveness, interrogation may be by leading questions, subject to the discretion of the court.
N.J.R.E. 611(c). Prior to the enactment of N.J.R.E. 611, the general rule required that in order to utilize leading questions during the direct examination of an adverse party, the attorney first had to establish that said party was hostile. However, as clearly stated within
Utilizing N.J.R.E. 611(c) can be a powerful tool, especially when the adverse party’s testimony will help and not hurt your case. Surprisingly, most Judges still believe the old rule of establishing hostility of the adverse party must first be established. I have had multiple trials where the opposing attorney has objected to my use of leading questions and the Judge subsequently sustaining the objection. Each time I have pointed out the clear provisions of
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