Conduct of Trial - Leading Questions - What they are and when they are permitted
“Leading questions” are usually questions which call only for a "yes" or "no" answer, are framed to suggest the answer to the witness, or assume a fact which is controverted.[1] A question asked to a witness is leading when it “puts in the witness mouth the words that are to be echoed back or plainly suggests the answer which the party wishes to get from him. Asking the question in the alternative form, such as whether or not a party did a certain act, and specifying the act, does not make it any less of a leading question.[2]
"Leading questions" may not be ordinarily used on the direct examination of a witness. However, they are permitted on direct examination of the witness where the witness is hostile,[3] where the witnesses’ recollection is exhausted[4] and where the questions relate to introductory matter. If a question relates to introductory matter and is designed only to lead the witness to what is material to the issue, it may be asked even though it is leading.[5] For example:
(By Counsel) Q. I draw your attention to __________.” [6]
A question whether a witness had at any time made a certain statement to certain persons is not leading.[7]
Leading questions are permitted where a witness’ recollection is exhausted. Suggestions by questions are permitted to assist the memory of the witness. [8] They are also permitted where the witness is a young child, illiterate, slow-witted, or too ill to speak without assistance.[9]
A witness may be asked leading questions for purposes of impeaching the testimony of a prior witness on the grounds that he made a statement out of court that was inconsistent with his testimony at the trial. [10]
Leading questions are permitted on cross-examination. [11] However, they are not permitted for the purpose of eliciting new matter from the witness who is being cross-examined. Cross-examining a witness for the purpose of eliciting new matter from the witness is considered conducting a direct examination and it is subject to the rules of direct examination.[12]
It is up to the judge's discretion to determine if a question is leading and to permit it to be asked even if it is leading. [13]
[1] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-223.
[2] People v. Mather, 4 Wend. 229 (N.Y.Sup., 1830).
[3] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-228.
[4] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-229.
[5] People v. Mather, 4 Wend. 229, 21 Am.Dec. 122 (N.Y.Sup., 1830).
[6] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-227.
[7] Emanuel v. Maryland Casualty Co., 47 Misc. 378, 94 N.Y.S. 36 (N.Y.Sup., 1905).
[8] Cheeney v Arnold, 18 Barb (NY) 434, aff’d 15 NY 345.
[9] Cheeney v Arnold, 18 Barb (NY) 434, aff’d 15 NY 345; Nicoletti v Dieckmann, 89 Misc 131, 151 NYS 520; Strnad v William Messer Co. 142 NYS 314.
[10] Wigmore, Evidence § 779; Sloan v NY Central RR, 45 NY125, 127; See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-229.
[11] Wigmore, Evidence § 773; See Prince, Richardson on Evidence, 11th Edition (Farrell) § 6-230.
[12] People ex rel Philips v Court of Oyer and Terminer, 83 NY 436, 439; See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-230.
[13] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-232.
“Leading questions” are usually questions which call only for a "yes" or "no" answer, are framed to suggest the answer to the witness, or assume a fact which is controverted.[1] A question asked to a witness is leading when it “puts in the witness mouth the words that are to be echoed back or plainly suggests the answer which the party wishes to get from him. Asking the question in the alternative form, such as whether or not a party did a certain act, and specifying the act, does not make it any less of a leading question.[2]
"Leading questions" may not be ordinarily used on the direct examination of a witness. However, they are permitted on direct examination of the witness where the witness is hostile,[3] where the witnesses’ recollection is exhausted[4] and where the questions relate to introductory matter. If a question relates to introductory matter and is designed only to lead the witness to what is material to the issue, it may be asked even though it is leading.[5] For example:
(By Counsel) Q. I draw your attention to __________.” [6]
A question whether a witness had at any time made a certain statement to certain persons is not leading.[7]
Leading questions are permitted where a witness’ recollection is exhausted. Suggestions by questions are permitted to assist the memory of the witness. [8] They are also permitted where the witness is a young child, illiterate, slow-witted, or too ill to speak without assistance.[9]
A witness may be asked leading questions for purposes of impeaching the testimony of a prior witness on the grounds that he made a statement out of court that was inconsistent with his testimony at the trial. [10]
Leading questions are permitted on cross-examination. [11] However, they are not permitted for the purpose of eliciting new matter from the witness who is being cross-examined. Cross-examining a witness for the purpose of eliciting new matter from the witness is considered conducting a direct examination and it is subject to the rules of direct examination.[12]
It is up to the judge's discretion to determine if a question is leading and to permit it to be asked even if it is leading. [13]
[1] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-223.
[2] People v. Mather, 4 Wend. 229 (N.Y.Sup., 1830).
[3] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-228.
[4] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-229.
[5] People v. Mather, 4 Wend. 229, 21 Am.Dec. 122 (N.Y.Sup., 1830).
[6] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-227.
[7] Emanuel v. Maryland Casualty Co., 47 Misc. 378, 94 N.Y.S. 36 (N.Y.Sup., 1905).
[8] Cheeney v Arnold, 18 Barb (NY) 434, aff’d 15 NY 345.
[9] Cheeney v Arnold, 18 Barb (NY) 434, aff’d 15 NY 345; Nicoletti v Dieckmann, 89 Misc 131, 151 NYS 520; Strnad v William Messer Co. 142 NYS 314.
[10] Wigmore, Evidence § 779; Sloan v NY Central RR, 45 NY125, 127; See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-229.
[11] Wigmore, Evidence § 773; See Prince, Richardson on Evidence, 11th Edition (Farrell) § 6-230.
[12] People ex rel Philips v Court of Oyer and Terminer, 83 NY 436, 439; See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-230.
[13] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-232.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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