Leading Authority: Court Of Appeals Of Mississippi Finds No Error With Trial Judge Allowing Some Leading ?s

Like its federal counterpart, Mississippi Rule of Evidence 611(c) provides that

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

As the language of Rule 611(c) makes clear, parties calling (1) a hostile witness, (2) an adverse party, or a (3) witness identified with an adverse party may use leading questions. But as the language of Rule 611(c) implies and the recent opinion of the Court of Appeals of Mississippi in James v. State, 2012 WL 1399120 (Miss.App. 2012), makes clear, the court has the discretion to allow leading questions even for non-adverse witnesses called by a party.

In James, Johnny James Jr. was convicted of statutory rape. After he was convicted, James appealed, claiming, inter alia, that "the trial judge abused his discretion by overruling James's objection to the State's leading questions to two of its witnesses without first having the witnesses declared hostile or adverse."

In response, the Court of Appeals of Mississippi noted the language of Rule 611(c) but then cited Osborne v. State, 54 So.3d 841, 845(16) (Miss.2011), for the proposition that

[T]he decision to allow a party to ask leading questions during direct examination rests within the sound discretion of the trial court. In other words, a trial court has general discretion to allow leading questions if needed for the development of a witness's testimony. The use of leading questions is not ground for reversal unless the trial court abused its discretion, and the decision resulted in "substantial" injury to the appealing party. 

Finding that no such "substantial" injury occurred in the case before it based upon a few leading questions by the prosecution, the court affirmed James' conviction.

-CM