Presentation of evidence - Form of questions

Learning Outcomes

After reading this article, you will be able to identify and apply the rules governing the form of questions during witness examination in evidence law. You will understand the restrictions on leading, compound, argumentative, and other improper questions, and know when exceptions apply. This will enable you to answer MBE questions on the correct form of questioning and recognize common exam pitfalls.

MBE Syllabus

For MBE, you are required to understand the rules and limitations on the form of questions during the examination of witnesses. This includes when certain types of questions are allowed or prohibited, and the rationale behind these rules. You should be able to:

  • Recognize when leading questions are permitted or barred on direct and cross-examination.
  • Identify improper forms of questions, such as compound, argumentative, or those assuming facts not in evidence.
  • Understand the court’s discretion to control the mode and order of witness interrogation.
  • Apply exceptions for adverse or hostile witnesses and special circumstances.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is generally NOT permitted on direct examination?
    1. Leading questions
    2. Open-ended questions
    3. Questions about background
    4. Questions to refresh recollection
  2. On cross-examination, which type of question is most likely to be allowed?
    1. Argumentative questions
    2. Leading questions
    3. Compound questions
    4. Questions assuming facts not in evidence
  3. When may leading questions be used on direct examination?
    1. Never
    2. Only with the court’s permission
    3. For preliminary matters, with a child witness, or with a hostile witness
    4. Only if the opposing party consents
  4. Which of the following is an example of an improper question?
    1. "Did you see the car?"
    2. "Did you see and hear the car crash?"
    3. "What happened next?"
    4. "Where were you standing?"

Introduction

The Federal Rules of Evidence and common law impose specific requirements on the form of questions asked during witness examination. These rules aim to ensure fair, efficient, and reliable fact-finding by preventing suggestive, confusing, or unfair questioning. Understanding which forms of questions are permitted, and when exceptions apply, is essential for MBE success.

Leading Questions

A leading question is one that suggests the answer within the question itself. Leading questions are generally not allowed on direct examination, except in limited situations.

Key Term: Leading Question A question that suggests its own answer, typically by including the desired fact or conclusion within the question.

On cross-examination, leading questions are generally permitted. On direct examination, leading questions may be allowed for:

  • Preliminary or undisputed background matters.
  • Witnesses who have difficulty communicating (e.g., children, those with infirmity).
  • Adverse or hostile witnesses, or those identified with an adverse party.

Key Term: Hostile Witness A witness who is openly antagonistic or aligned with the opposing party, allowing the examiner to use leading questions on direct.

Improper Forms of Questions

Certain forms of questions are always improper, regardless of the stage of examination. These include:

Key Term: Compound Question A question that asks for more than one answer or combines multiple inquiries, making it unclear which part the witness is answering.

Key Term: Argumentative Question A question that challenges or badgers the witness rather than seeking factual information, often intended to provoke or argue.

Key Term: Assumes Facts Not in Evidence A question that presumes the truth of a fact that has not yet been established by admissible evidence.

Key Term: Calls for a Conclusion A question that asks the witness to state an opinion or conclusion they are not qualified to make.

Key Term: Calls for Speculation A question that invites the witness to guess or hypothesize about matters outside their personal knowledge.

Key Term: Repetitive Question A question that repeats information already asked and answered, unless clarification is needed.

Court’s Discretion and Control

The trial judge has broad discretion to control the mode and order of witness examination to ensure effective truth-finding, avoid wasting time, and protect witnesses from harassment or embarrassment. The judge may allow or disallow leading or otherwise improper questions as justice requires.

Worked Example 1.1

Question: During direct examination, a lawyer asks, "Isn't it true that you saw the defendant at the scene of the crime?" The opposing counsel objects. Should the objection be sustained?

Answer: Yes. This is a leading question on direct examination, suggesting the answer within the question. Unless the witness is adverse, hostile, or the question concerns preliminary matters, leading questions are not permitted on direct.

Worked Example 1.2

Question: On cross-examination, a lawyer asks, "Did you see and hear the car crash, and did you call the police immediately afterward?" The opposing counsel objects that the question is compound. How should the court rule?

Answer: The objection should be sustained. This is a compound question, asking for multiple facts in one question. Each fact should be addressed separately to avoid confusion.

Worked Example 1.3

Question: A lawyer asks, "Why did you think the manager was angry?" The opposing counsel objects. Is this question proper?

Answer: No. This question calls for speculation and possibly a conclusion the witness is not qualified to make. Witnesses should testify to facts they observed, not their interpretations of another person's mental state.

Exam Warning

Questions that assume facts not yet established in evidence are improper. If a question presumes a fact that has not been proven, it is objectionable and likely to be excluded.

Revision Tip

On the MBE, if you see a question that suggests its own answer or combines multiple questions, consider whether it is leading or compound and whether it is proper for the stage of examination.

Key Point Checklist

This article has covered the following key knowledge points:

  • Leading questions are generally barred on direct but allowed on cross-examination, with exceptions for preliminary matters, hostile, or adverse witnesses.
  • Compound, argumentative, speculative, and repetitive questions are improper and subject to objection.
  • Questions assuming facts not in evidence or calling for conclusions are not allowed.
  • The trial judge has discretion to control the form and order of questioning to ensure fairness and efficiency.

Key Terms and Concepts

  • Leading Question
  • Hostile Witness
  • Compound Question
  • Argumentative Question
  • Assumes Facts Not in Evidence
  • Calls for a Conclusion
  • Calls for Speculation
  • Repetitive Question
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