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Saturday, August 18, 2012

Burying The Lead?: Judge Posner Delivers An Amusing Opinion Regarding Leading Questions

A leading question is a question phrased in such a way as to hint at the answer the witness should give. Jas Brar, Note, "Friend or Foe? Responsible Third Parties and Leading Questions," 60 Baylor L.Rev. 261, 264–67 (2008). The question is calculated to "lead" the witness to the answer desired by the lawyer. There is no blanket prohibition of such questions. They are permissible when used against adverse witnesses, usually in cross-examination, or when used with friendly witnesses to move direct examination along rather than to elicit testimony damaging to the opposing party that the witness might not have given in response to a neutral question. Fed.R.Evid. 611(c)United States v. Cephus, 2012 WL 2609316 (7th Cir. 2012). 

If you want a colorful case to explain the nitty gritty of leading questions in detail, you need look no further than Judge Posner's opinion for the Seventh Circuit in Cephus.

In Cephus, several defendants, including Justin Cephus

were tried together for conspiring to entice underage girls, often runaways, to engage in prostitution, to transport them (along with adult women who also worked for the ring) in interstate commerce to engage in prostitution, to use force and fraud to coerce adult women to engage in prostitution, and to commit related offenses. 

After they were convicted, the defendants appealed, with one of the grounds for appeal being that they were unfairly prejudiced by the government's frequently posing leading questions to its witnesses. In addressing this issue, the Seventh Circuit first noted that, in some cases, the district judge

was too hard on the prosecution. He should not, for example, have sustained the objection by Cephus's lawyer to the following question asked one of the prostitutes by the prosecutor: “Did he [Cephus] ever tell you what P–I–M–P stood for?” That was not a leading question. “Did Cephus ever tell you that P–I–M–P stands for ‘power in manipulating pussy’?” would have been a leading question, but it was not asked. Eventually, after a protracted sidebar, the judge relented and allowed the prosecutor to ask the question in a different form, eliciting at last the answer that Cephus had told the witness that “PiMP” was indeed an acronym for “power in manipulating pussy.” Similarly the prosecutor was not leading when he asked a witness: “Did you ever have a phone conversation when someone else was listening in?” The question did not signal the answer the lawyer expected or hoped for, in contrast to asking: “Didn't you ever have a phone conversation when someone else was listening in? Think carefully before answering.” Or: “Isn't it true that you sometimes have phone conversations when someone else is listening in?”

In other cases, however, the Seventh Circuit found that the prosecution did ask leading questions but did not find that these questions were enough to award a new trial. According to the court,

An objectionably leading question asked a friendly witness was the prosecutor's asking one of the girls whether one of her first two “calls” took place in Illinois—a question designed to establish that she had been transported across state lines to engage in prostitution, because she was living in Justin Cephus's home in Indiana. She responded that both calls were in Indiana (thus indicating that she hadn't been “led” by the question) but that later she had calls in Illinois as well. The question was improper, but innocuous because it failed to lead her and because there is no dispute that she had calls in both states.

To one of the witnesses the prosecutor said: “You mentioned that he [Cephus] had a cord. Was he whipping her with the cord?” She answered “yes.” Since whipping a person is unusual, the question would be unlikely to be asked unless an affirmative answer was expected. The question may also have been loaded (a loaded question is a question that contains an assertion, the classic example being “When did you stop beating your grandmother?”), as it might have been understood to mean: “Was he whipping her with a cord or something else?” Instead of mentioning whipping the prosecutor should just have asked her what she had seen Cephus doing with the cord.

The prosecutor asked other inappropriate leading questions, and sustaining objections to questions is probably not a very effective way of pulling their sting, because jurors can guess the answer that the interrogating lawyer expects to a leading question—that's the nature of such a question. But the leading questions in this case could not have affected the verdict of a reasonable jury, given the overwhelming evidence of the defendants' guilt.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/08/leading-s-us-v-cephus-f3d-2012-wl-2609316ca7-ind2012.html

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Comments

Judge Posner is correct in debunking the myth that a leading question is any question that can be answered "yes" or "no." The problem is that trial judges (especially in Dallas Co., Tx) look for quick and simple to apply rules and largely say that any question that can be anwered yes/no is leading.

However, Posner does not appear (from your excerpt) to weigh two more factors in whether "Did/were you/he/they" questions are leading: 1) how important the fact to be elicited is, and 2) how easy it would be to ask the same question with an open, non-leading question. E.g., "whether one of her first two “calls” took place in Illinois," which he calls improper. This easily could have been asked this way: "Where were your first 2 calls," or "In what state were your first 2 calls." Hence, The more easily the question can be remedied, the more likely the leading objection should be sustained.

Fred Moss

Posted by: Fred Moss | Aug 20, 2012 11:35:20 AM

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