The courts may also cite the various editions of McCormick`s and Wigmore`s evidentiary treaties to answer the question of whether a closed-ended question inherently leads.12 These treaties are cited in the notes to Rule 611 of the Federal Rules of Evidence to explain other issues related to that rule.13 Both treaties state: that closed-ended questions are not inherently suggestive and that the question of whether or not the questioner proposes a correct or preferred answer is the determinant of a key question.14 However, both treaties also indicate that closed-ended questions can often lead to questions of direction due to wording or emphasis.15 When a lawyer uses intelligent wording and specific details when questioning Witnesses, in order to give them the desired answer, we are talking about a guiding question. As an example, consider the following hypothetical exchange in the courtroom: This lack of clarity makes it particularly important for practitioners to understand the problem well enough to address it at the trial court level to achieve the desired outcome. To help practitioners navigate through closed-ended questions, this article will cover the general rule of evidence regarding policy issues, necessary definitions, treaties and cases most commonly used to answer this question, and the reasons for the persistent confusion surrounding this topic. According to the rules of evidence, you usually only need to use non-guiding questions when questioning your own witness. The idea is that it would be unfair to allow you to testify for a friendly witness – a witness you have decided to call – by indicating the desired answers through policy questions. “You`ve never seen the man before, have you?” “You were upset, weren`t you?” “You went to the store, didn`t you?” The rules change when you cross-examine the other party`s witnesses. You are now allowed to use orientation questions. Because now things are contradictory. You are allowed to confront the witness to bring the truth to light.
The accuracy of key issues generally depends on the witness` relationship with the party conducting the hearing. An examiner may generally ask suggestive questions of an enemy or cross-examined witness (to obtain testimony that the witness may be reluctant to voluntarily provide), but not during direct examination (to “train” the witness to give a specific answer). [2] As you can see, a sophisticated lawyer may use leading questions to get a witness who confirms the lawyer`s words. In fact, it allows the lawyer to testify indirectly through the witness, which can be very effective. The rules of evidence do not categorically prohibit asking questions on direct questions; They can be used “if necessary to develop the witness`s testimony.” Questions that are fundamental or that relate to issues that are not contentious are the types of questions that can be asked as guiding questions. This creates efficiency gains; This moves the case forward. Conveying key issues in these circumstances also makes the dialogue we call “direct inquiry” more natural and less formal. Think of a recent conversation with a friend or relative: it`s human nature to go hunting with a guiding question. And since court systems are burdened with litigation – especially as we emerge from the pandemic – it`s an efficiency that moves cases. You can only ask questions of one witness. You can`t insult them or argue with them. But what is a “main” question? Rule 611(c) of the Federal Rules of Evidence deals with key issues and also forms the basis for government regulations on the use of guidance questions.6 Rule 611(c) provides that guidance questions are generally not admissible during direct examination except to develop the testimony of a witness.7 However, this rule and its corresponding notes do not define or address key issues.
whether closed-ended questions are inherently guiding.8 Even neutral questions can lead witnesses to answers. depending on the choice of words, the framing of the answers, the hypotheses formulated and the form. For example, the words “fast”, “collision” and “how” can change the speed estimates provided by respondents. [4] Exceptions to general restrictions on key issues may arise, litigants should know what matters as a guiding question in each jurisdiction and be prepared to answer when the question is presented. Practitioners should prepare by researching the competence of the administration (if applicable), addressing the topic, and including research in process records. In addition, practitioners should prepare their process files to include the treaties and jurisprudence cited above; While treaties and cases are not unprecedented in their jurisdiction, they are the most frequently used sources by courts across the country. By ensuring that they are prepared and have the applicable law at their fingertips, practitioners should be able to confidently raise and respond to objections regarding the intersection of closed-ended questions and policy questions. After you have made your opening statement, you will be asked to call your witnesses. The other party will also invite witnesses.
You must examine your witnesses and have the opportunity to examine the other party`s witnesses. Before your trial, you`ll want to think about what questions you should ask witnesses. There are 2 ways to interview witnesses: Another source of confusion is the slightly different way in which some courts answer the question.25 For example, there are several cases in Indiana where it is said that a question that “embodies an important fact and allows for a conclusive answer in the form of a closed-ended question is inherently leading.26 While this rule is not entirely at odds with general opinion, He finds a form of closed questions that are inherently leading. The Pennsylvania Supreme Court noted in 1918 that the rule of material facts set forth above with respect to Indiana was the common law rule, but that “this rule has been somewhat deviated by a series of decisions declaring that such a categorical question does not necessarily lead, provided, of course, that it is not formulated in this way: that it gives an indication of the desired response. 27 As you can see, there are various tools in the courtroom, including the use of orientation questions, that lawyers can use to gather evidence and provide a stronger argument to their clients. If you are prosecuted, you can contact an experienced defense attorney who can stand up on your behalf and guide you through the process. (There is an exception to this rule: the court may allow you to ask guidance questions of your own witness if it finds that the witness is “hostile” to you. But this needs to be the subject of a separate blog post.) This is the example I use to explain the difference between leading and non-suggestive questions when preparing a witness to testify. People seem to understand that.
While many jurisdictions use the relatively simple definitions described above, some courts have repeatedly changed their minds about whether closed-ended questions are inherently conductive.23 For example, some Iowa reviews indicate that closed-ended questions are inherently conductive; some believe that closed-ended questions do not inherently lead; and others believe that a closed-ended question is inherently determinative if it were conclusive “with respect to the impugned case or a substantial part of the case.” 24 These and other cases in which these opinions are cited range from the 1800s to the present day.
