Saturday, July 31, 2021
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Leading questions should be permitted on cross-examination.
One circumstance where leading questions are necessary to develop a witness's testimony involves the direct examination of a child witness. One example can be found in the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Lee, 2021 WL 3197198 (Tenn.Crim.App. 2021).
In Lee, Vincent Parker Lee was convicted of various sex offenses against his step-daughter, J.M., and his daughter, T.M. After he was convicted, Lee appealed, claiming that the trial court improperly allowed the prosecutor to ask leading questions to the nine year-old J.M.
The Court of Criminal Appeals of Tennessee disagreed, holding that
Rule 611 permits the use of leading questions during direct examination when "necessary to develop the witness's testimony." Tenn. R. Evid. 611(c)(1). This court has specifically held that a trial court does not err by permitting leading questions of child sex offense victims on direct examination when necessary to fully develop the witness's testimony....The trial court overruled the defendant's objection to the prosecutor's leading J.M., stating that it was “allowing a lot of latitude on the way they're questioning...given the fact that we've got a nine year old." Indeed, J.M., who was nine-years-old at the time of trial, clearly had difficulty answering questions, often offering non-verbal answers. She said on more than one occasion that it was "kind of hard to" describe how the defendant had touched her. As evidenced by the euphemisms she used to identify the parts of the body, J.M. lacked the language to fully describe the defendant's assault. Under these circumstances, the trial court did not err by permitting the prosecutor to lead J.M.
Additionally, the prosecutor's questions did not amount to a gross mischaracterization of her earlier testimony as the defendant claims.