Civil Litigation Legal Topics Litigation Strategy Trial Strategy

When It’s OK to Lead on Direct

court_57280447Litigators learn early that you can’t use leading questions during direct examination. But that’s not always true. You can ask leading questions on direct or redirect examination in certain “special circumstances where the interests of justice otherwise require.” But what circumstances are those?

Trial judges have broad discretion to decide when special circumstances permit the use of leading questions on direct examination. People v Williams (1997) 16 C4th 635. But there are some situations in which judges are more likely to allow leading questions on direct.

Here are 7 such situations:

  1. To establish preliminary matters.  To save time, the judge may allow leading questions pertaining to preliminary matters. See Evid C §765; Comment to Evid C §767. You can use leading questions on introductory facts that aren’t in dispute (e.g., the witness’s name, address, and occupation). The witness’s location at the time of the relevant event is also usually established this way.
  2. To refresh recollection. A witness may quite innocently forget important matters while testifying in the courtroom. When this happens, the judge may allow leading questions to refresh the witness’s recollection. Comment to Evid C §767.
  3. To aid witnesses who need assistance in testifying. If the witness is having difficulty testifying (e.g., because of age, illness, limited intelligence, substantial cognitive impairment, or language), the judge may permit leading questions. See Evid C §767(b); People v Augustin (2003) 112 CA4th 444, 449. Some witnesses find it difficult to testify if the subject matter is offensive. For example, a girl testifying about having been raped may be asked leading questions to help her overcome her embarrassment and disclose the facts. See People v Jackson (1954) 124 CA2d 787, 789.
  4. To question expert witnesses. Leading questions may properly be used during the interrogation of an expert witness. People v Campbell (1965) 233 CA2d 38, 44; Comment to Evid C §767. But as a practical matter, noncourt-appointed experts are often retained to support a party’s position. For that reason, any expert witness may be susceptible to the examiner’s suggestion, and some judges will automatically sustain a leading question objection. In any event, leading an expert witness may be a bad tactic because it gives the jury the impression that the attorney rather than the expert is testifying.
  5. To question hostile witnesses. Occasionally, a party must call a hostile witness to the stand to prove the case. On a showing that the witness is hostile, you can ask leading questions. A preliminary showing of hostility may be made based on the witness’s identity or connection with the case, or the nature of the proposed testimony. Hostility may also appear from the witness’s demeanor in court or from the witness’s answers. See Evid C §§776, 767(a).
  6. To question witnesses who have changed their stories. “Special circumstances” appears to cover testimony by a witness that differs substantially from statements that the witness previously made out of court. When a witness has a changed story, the most effective way to disclose the truth may be to forgo objections to leading questions, even by the attorney who called the witness. Evid C §765(a).
  7. To identify exhibits. Courts permit leading questions that relate solely to the identification of exhibits. People v Campbell (1965) 233 CA2d 38, 44.

If there are circumstances that make it necessary to use leading questions on direct, you’ll likely know about them before trial. It’s good practice to review these circumstances with the judge in chambers before the witness is called to testify. This will allow the judge to make a preliminary determination, if desired, by questioning the witness outside the jury’s presence.

For coverage of all trial objections (including that the question is impermissibly leading) turn to CEB’s California Trial Objections, an essential resource for every trial attorney. For practical advice in all aspects of direct examination, check out CEB’s Effective Direct and Cross-Examination.

Related CEB blog posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

9 replies on “When It’s OK to Lead on Direct”

Add your comment to the blog post

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s