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3 Times Not to Ask Leading Questions on Cross

attorney questioning witness during cross-examinationLeading questions are the main tool of the cross-examiner—they tell a witness how to answer by suggesting an answer. See Evid C §764. But you should also know when using leading questions on cross-examination isn’t the best technique.

There’s a general rule for cross-examination that you can best control the witness with leading questions. This is true, but it’s not absolute. There are situations in which leading questions may not be the way to go. For example, when you are dealing with one of the following types of witnesses:

  • Very hostile witness. Some witnesses may be so hostile to counsel that they will have a knee-jerk reaction when asked a leading question. They will figure out the answer desired, and try to give the opposite answer. In this situation, you may not want to ask leading questions. Or maybe ask leading questions with “reverse psychology,” i.e., questions that sound as though they call for an answer different from the answer really wanted.
  • Witness with helpful testimony. When an adversary’s witness provides testimony that helps you, use your cross-examination to further develop the helpful testimony by asking gentle, open-ended questions. For example, in a first-degree murder case, a witness was called by the prosecution to establish the effect of certain drugs found in the victim’s blood on the victim’s ability to think and function. The expert was impressive and knew precisely what levels of barbiturates would impair an individual’s ability to think clearly. On cross-examination, defense counsel carefully led the expert to expand this testimony, creating the factual basis for a diminished capacity defense for the defendant who had ingested substantial barbiturates before going to the victim’s house.
  • Rambling witness. If you know from prior examination (or sense it during direct examination) that a witness is long-winded and unpleasant, you may not want to control the witness closely with leading questions. Always encourage the worst in the adversary’s witnesses. If the adversary witness is a rambling blowhard, give the witness room to show her character to the jury. By contrast, a crisp and disciplined examination, particularly with a judge who insists on keeping the witness in bounds, may hurt you in two ways: (1) the witness’s bad side won’t be exposed, and (2) the jury may think that you’re trying to hide something by reining in the witness with the court’s assistance.

Experienced trial attorneys know the rules that generally apply to cross-examination, but they also know when to deviate from them. Controlling a witness with leading questions is generally effective when used in moderation, but it won’t work well with every witness. Learn all of the time-honored rules of cross-examination and when to break them in CEB’s Effective Direct and Cross-Examination, chap 4. And check out the expert advice in CEB’s program Evidence: Tips for Effective Direct and Cross Examination, available On Demand.

Other CEBblog™ posts on cross-examination:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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