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Cross-Examination: To Lead or Not to Lead? Kenneth J. Melillil Abstract In this Trial Technique, Professor Kenneth Melilli addresses when it is appropriate to ask non-leading questions on cross-examination. Ordinarily, leading questions are permitted on cross-examination of adverse parties or witnesses.' Because leading questions provide the cross-examiner with superior control over both the witness and the information revealed to thejury, cross-examination in the form of leading questions is generally recommended. 2 Indeed, some experts counsel that virtually every question asked on cross-examination should be in the form of a leading question.' A few commentators recommend that non-leading questions be used only when any answer to the question is acceptable, 4 when the answer to the question is known, 5 when the answer to the question is obvious, 6 when the answer to the question is unimportant, 7 or when tb.a. (1976), Yale University; J.D. (1979), New York University Law School. The author is a Professor of Law at Creighton University School of Law. Professor Melilli gratefully acknowledges the assistance of Leticia Plucknett and Patrice Andersen. 1 FED. R. EVID. 61 1(c). 22 JAMES W. JEANS, SR., LITIGATION 15.14-4, at 1056 (1992) [hereinafter LITIGA- TION]; JAMES W. JEANS, SR., TRIALADVOCACY 13.23, at 315 (1975) [hereinafter TRIAL ADVOCACY]. 3 ROBERTO ARON ET AL., CROSS-EXAMINATION OF WITNESSES, THE LITIGATOR'S PUZZLE 8.05, at 117, & 17.12, at 309 (1989); JOHN E. DURST, JR. & FRED QUELLER, ART OF ADVOCACY, CROSS EXAMINATION OF LAY WITNESSES 1.06, at 1-23 (1992); ROGER HAYDOCK & JOHN SONSTENG, TRIAL, THEORIES, TACTICS, TECHNIQUES 10.3, at 525 (1991); STEVEN LUBET, MODERN TRIAL ADVOCACY, ANALYSIS AND PRACTICE 68 (1993); THOMAS A. MAUET, TRIAL TECHNIQUES 224 (4th ed. 1996); LARRY S. POZNER & ROGER J. DODD, CROSS-EXAMINATION: SCIENCE AND TECHNIQUES 298 (1993); Judge Ernest M. Hiroshige, FinalExams, 23-Feb L.A. LAW. 26,29 (2001); Paul M. Lisnek, Mastering the Art of Cross-Examination, 6/12/95 CHI. DAILY L. BULL. 6 (1995). 4 LITIGATION, supra note 2, 15.15-1, at 1057-58; LUBET, supra note 3, at 68; Henry W. Asbill, The Ten Commandments of Cross-Examination Revisited, 8-WTR CRIM. JUST. 2, 5 (1994). 5TRIAL ADVOCACY, supra note 2, 13.24, at 316. 6 MAUET, supra note 3, at 225. 7 Id.; TRIAL ADVOCACY, supra note 2, 13.24, at 316.
AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 27:149 the witness is committed to the desired answer by a prior statement. 8 Only a few writers advocate a more liberal use of non-leading questions on cross-examination. 9 At the substantial risk of disagreeing with better trial lawyers than myself, I offer here my view that non-leading questions on crossexamination are sometimes necessary and often very effective. In fact, certain questions, ifthey are to be asked at all on cross-examination, must be asked in a non-leading form or the cross-examiner risks disaster. The key is recognizing the significance of asking a leading question on crossexamination and identifying the limited circumstances in which leading questions should be asked. I start with the proposition that arguably the most important thing that develops during a trial is the relationship between the lawyer and the jurors. When the lawyer asks the jurors for their verdict, she wants them to want to give the verdict to her. She expects the jurors to want to give her their verdict not just because her client deserves it but also because they want to give it to her personally. She wants the jurors to respect and like her. This desire does not come from any need for personal gratification. Rather, the lawyer knows that obtaining the jurors' verdict is more likely to occur if their reaction to her personally is consistent with, rather than an impediment to, that conclusion. Most of all, the trial lawyer wants the jurors to trust and believe her. Her personal credibility with the jury is absolutely critical. When she argues her client's cause to the jury during her summation, her persuasiveness comes not merely from the force of her argument, but also from her personal endorsement. She cannot express her personal opinion to the jurors directly, but thejurors have no doubt of her personal conviction in the rightness of her client's position. If she has successfully earned the trust and confidence of thejurors throughout the trial, that conviction counts for something with the jurors. Much of the lawyer's strategic choices during the trial should be influenced, if not directed, by the critical importance of building personal credibility with the jury. She makes no promises in opening statement 8 MAUET, supra note 3, at 225. 9 See HERBERT J. STERN, TRYING CASES TO WIN, CROSS-ExAMINATION 23-25 (1993); Ralph Adam Fine, Irving Younger Was Wrong When He Commanded, "Use Only Leading Questions ", 67-APR WiS. LAW. 25, 26 (1994).
2003] CROSS-EXAMINATION: To LEAD OR NOT TO LEAD? that she does not keep during the trial. She forgoes some objections so as not to appear to thejurors to be attempting to conceal information from them. She is careful not to appear to be manipulating the law or the evidence in any way that might be perceived by the jurors to be inconsistent with the discovery of the truth.' 0 The single most important component of the trial in which the lawyer's personal credibility comes into play is cross-examination." Specifically, the cross-examiner makes her credibility an issue every time she asks a leading question. A leading question is just a statement disguised as a question. Whether it functions as a question because of the addition of words before the statement ("Isn't it true that he walked with a limp?"), the addition of words after the statement ("He walked with a limp, didn't he?") or simply a change in voice inflection ("He walked with a limp?"), the essence of a leading question is a statement made by the cross-examiner. It is the lawyer who chooses the words of the statement contained in the leading question, 2 and consequently the focus is on the lawyer. 3 The point of the leading question is ultimately to persuade the jury to agree with the statement of the lawyer.14 Consequently, every time a lawyer asks a leading question on crossexamination, she places her personal credibility at issue. Just as a witness is discredited when his testimony is discovered by the jurors to be false, a lawyer is discredited in the eyes of the jurors on any occasion that her statement in a leading question fails to be substantiated. 5 And just as a single falsehood may destroy the credibility of a witness regarding the entirety of the witness's testimony, so too a single failure by a crossexaminer with a leading question may negatively impact the lawyer's credibility well beyond the parameters of the particular question. Therefore, a lawyer should not ask a leading question on crossexamination unless she is reasonably assured that the statement contained " 0 See Fine, supra note 9, at 25. "See Asbill, supra note 4, at 4. 1 2 TRIAL ADVOCACY, supra note 2, 13.23, at 315. ' 3 HAYDOCK & SONSTENG, supra note 3, 10.2, at 524; MAUET, supra note 3, at 226-27. 4 STERN, supra note 9, at 9. " 5 See id. at 20-22.
AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 27:149 in her question will be substantiated. In other words, she should only ask a leading question when she is reasonably sure she will win the contest of her own credibility. How can the lawyer be so reasonably assured? Obviously, if the witness agrees with the statement contained in the leading question, victory is at hand. Consequently, the cross-examiner must assess the chance of the witness dissenting from the statement. The lawyer could decide that this risk of dissent is so trivial, and the potential gain from acquiescence so great, that the risk should be tolerated and the leading question should be put to the witness. Although this risk is a contextual calculation, the downside of the loss ofpersonal credibility is so substantial that generally no significant risk should be tolerated. Acquiescence from the witness is not, however, the sole circumstance in which the cross-examiner can be reasonably assured of success with a leading question. If the witness can be impeached with his own prior statement, the enhancement of the lawyer's credibility (and the failure of the witness's credibility) will likely be even greater than if the witness had agreed with the cross-examiner in the first place.' 6 Moreover, if the proposition contained in the leading question is so manifestly correct, and the denial by the witness so patently false, the cross-examiner will have won the contest and the leading question is perfectly safe. Finally, if testimony from other witnesses or other evidence substantiates the crossexaminer's statement and discredits the witness's resistance, then again the leading question is a good choice. The bottom line on leading questions is this: do not put yourself in a position where, after the presentation of all of the evidence, the jurors can reasonably conclude that a statement contained in your leading question is false. An unthinking adherence to the admonition to ask all questions on cross-examination in a leading form, without regard to the above-stated guidelines, is fraught with peril. It by no means follows from this discussion that all questions not meeting the criteria set forth earlier may be asked, as long as they are phrased in a non-leading manner. There are many questions that should never be asked on cross-examination. Once the determination is made 6 This is precisely why prior statements of witnesses are the absolute best source for constructing leading questions for cross-examination.
2003] CROSS-EXAMINATION: TO LEAD OR NOT TO LEAD? that a question should not be asked as a leading question, the issue remains whether to ask the question in a non-leading form or not to ask it at all. On this point, guidance must be less specific. Many commentators advise never to ask a question on cross-examination unless the answer is already known. 7 Generally speaking, this recommendation comes from the same sources who advise asking only leading questions on cross-examination. 8 Although I believe that each of these admonitions is incorrect, considered together they do make some sense. If you are going to ask exclusively leading questions on crossexamination, then you must know the answers to these questions before you ask them. However, I have already explained why all questions on crossexamination should not be leading questions. The caution against all questions with unknown answers is also fatally rigid. 19 In criminal cases (where depositions and prior statements are less likely), but also in some civil case scenarios, lawyers sometimes do not discover the details of witnesses' testimony until the trial itself. Unless the cross-examiner merely wishes the witness to repeat what was stated on direct examination, cross-examination must include some inquiry into unknown areas and undisclosed details. Essentially, the deposition of the witness is taken on cross-examination in a carefully circumscribed manner. This may produce opportunities for more pointed cross-examination. There are, of course, risks. Nevertheless, considering the unlikelihood of damaging testimony having been omitted from the direct examination, as well as the disadvantage of leaving harmful testimony unchallenged, the risk of reticence on cross-examination might well be greater. Unless an opportunity for a leading question presents itself, this type of cross-examination should proceed entirely by non-leading questions. Obviously, if the lawyer does not know the answer to a question, she should be unwilling to endorse any particular answer with a leading question. 17ARON ET AL., supra note 3, 8.06, at 123, & 17.12, at 309-10; DURST & QUELLER, supra note 3, 1.04, at 1-7; HAYDOCK & SONSTENG, supra note 3, 10.3, at 534; Hiroshige, supra note 3, at 29; JOHN NICHOLAS IANNUZZI, HANDBOOK OF TRIAL STRATEGIES 292 (2d ed. 2001); LUBET, supra note 3, at 121. " 8 See supra note 3 and accompanying text. ' 9 STERN, supra note 9, at 25-26.
AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 27:149 Non-leading questions in circumstances in which the answer is unknown are devastatingly effective when any conceivable answer is beneficial to the cross-examiner. The cross-examiner must consider all possible answers. Such questions are safer if phrased so as to require only a yes-or-no response, if only to minimize the possible answers that the cross-examiner must consider. This question must be asked in a nonleading form, for the lawyer is not vouching for any particular answer. 2 Although the issue of whether a cross-examiner should ask a leading question does lend itself to relatively precise guidelines, the issue of whether to ask a non-leading question (as opposed to no question) does not. Good trial lawyers trust their intelligence, skill, and experience. Those lacking the third of these ingredients sensibly proceed with greater caution. 2 In a trial that took place so long ago that I probably remember it more favorably to myself than reality would allow, I was the prosecutor cross-examining a defendant charged with a street sale of heroin to an undercover police officer. The defendant's situation was worsened by the fact that two five-dollar bills from the sale (determined by pre-recording the serial numbers of the funds used in the purchase) were found in the defendant's pants pocket. On direct, in an effort to explain the incriminating bills, the defendant claimed to have been involved in a change-making transaction shortly before his arrest. In a short cross-examination that consisted entirely of non-leading questions, the defendant told us that it was a stranger who approached him, that it was the stranger who wanted change, and that the stranger asked for one ten-dollar bill in exchange for the two damning five-dollar bills. I then asked the defendant what one could buy with a ten-dollar bill that could not be purchased with two five-dollar bills. The defendant could think of no answer to my question, several of the jurors giggled, I sat down, and, although my sight line does not permit me to state this with complete certainty, I believe the trial judge checked his calendar for a date for sentencing.