Court of Appeals of Arkansas Finds No Error With Leading Questions to Child Witness

Similar to its federal counterpart, Arkansas 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. Whenever a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Typically, courts apply the "necessary to develop his testimony" exception in cases involving testimony by children, especially vulnerable ones. A good example can be found in the recent opinion of the Court of Appeals of Arkansas in Standridge v. State, 2023 WL 2395918 (Ark.App. 2023).

In Standridge, Jimmy Standridge was charged with various sex crimes against his daughter MC, who was about eight at the time of the crimes and fifteen at the time of the trial. After he was convicted, Standridge appealed, claiming that the trial court improperly permitted leading questions during the direct examination of MC.

The court disagreed, ruling as follows:

Standridge next alleges the circuit court abused its discretion when it allowed the State to continue leading the witness over defense counsel objection. Several times during MC's testimony, she was difficult to hear or understand. The prosecutor would repeat what she said, then ask the next question. After doing this for a bit, defense objected. At the sidebar conference, the court acknowledged it was sensitive to the defense's position but ultimately decided to allow it to continue because MC was occasionally difficult to hear, and the prosecutor was helping ensure the witness's testimony was understandable. The court did ask the witness to speak up.

Under Rule 611(c) of the Arkansas Rules of Evidence, leading questions should not be used on the direct examination of a witness except as may be necessary to develop her testimony. The rule does not completely bar leading questions on direct but gives the circuit court discretion to permit leading questions to develop a witness's testimony; we will not reverse an evidentiary ruling absent a manifest abuse of discretion....Here, the court did not abuse its discretion to allow the prosecutor to occasionally repeat the statements provided by the witness. The repetition did not suggest an answer or insert a detail that should have originated from the victim. Further, MC was distressed, weeping, and occasionally reluctant to testify. Given this, allowing the prosecution some leeway with its method of questioning was not a manifest abuse of discretion. Leading a child witness to elicit the truth is allowed because of (1) the seriousness of the crime, (2) the natural embarrassment of the witness about the incident, (3) the child's fear of being in a courtroom full of people, (4) the necessity of testimony from a victim, (5) threats toward victims from those perpetrators, and (6) the need to avoid the possibility that an accused might escape punishment for a serious offense merely because of the victim's reluctance to testify.

-CM