September 18, 2013 Articles

Direct Examination: How to Lead Your Witness in a Non-Leading Manner

Five tips to lead without leading.

By Eric S. Wolfish and David R. Singh

On direct examination, counsel’s task is two-fold: to bring out the facts necessary to support the case-in-chief and to help the witness appear credible. To do this, counsel must lead the witness without leading; counsel must steer the witness’s testimony without asking questions that suggest the answer. Questions should be short and open-ended, and begin with “who,” “what,” “where,” “when,” “why,” or “how” or short phrases such as “tell us” or “please describe.” An open-ended question might ask “What did you observe?” while leading questions relating to the same subject might ask “You observed Mr. Jones accelerate through the red light, didn't you?” or “Was Mr. Jones driving north?”

Although leading questions are usually appropriate for cross-examination, they are generally objectionable on direct examination. Not only does Federal Rule of Evidence 611(c) prohibit leading questions on direct examination, “except as necessary to develop the witness’s testimony” (more on that later), but also it makes sense not to lead on direct. On direct, the witness is supposed to be the “star” and the jury’s focus should be on the witness’s testimony. When a witness is asked leading questions, the jury’s focus shifts to the lawyer; and the witness, who is being spoon-fed the answers, may lose credibility.

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