Success at trial often depends on getting your evidence in and keeping your opponent’s evidence out — or, at the very least, limiting its effect. In the heated battle of trial, this can be easier said than done. You have to know the evidentiary rules, statutes and common law, and be prepared to use them at a moment’s notice.
Justice Helen E. Freedman’s New York Objections uses a courtroom-friendly format to explain when, why and how to object and respond to objections. Consider, for example, these tips and tactics for handling the “leading question” objection:
Making the Objection
“Objection, Your Honor. [Counsel is asking leading questions] or [Counsel is leading the witness].”
Obtain ruling that the witness is adverse
An adverse party, or his or her agent, is presumed hostile. The hostile nature of any other witness should be established before counsel is allowed to ask leading questions. Object to leading questions on the ground that the witness has not demonstrated hostility merely because he was subpoenaed, or had some relationship to the adverse party, or appears reluctant to testify.
Choose wisely, or your objection may be counterproductive
When presented with a “leading” objection, the court can simply ask counsel to rephrase the question. By that time, however, the witness has had an opportunity to consider the question and has “heard” the suggested answer. Make your objection count. Do not object to leading questions on preliminary matters. Instead, remain alert and be prepared to object to leading questions which:
- Elicit testimony on controversial or disputed matters.
- Assume facts in controversy or not in evidence.
- Assume facts “subject to connection.”
If the court overrules your objection
Insist on stating the grounds for your objection in front of the jury. This will alert jurors to the possible “unfairness” of the question. In addition, ask the judge to observe the witness carefully and to limit the use of leading questions to non-argumentative questions.
Object to leading questions on cross
If you have asked leading questions on direct because the witness is adverse or hostile, object to leading questions on cross-examination on the ground that the witness is actually friendly to the cross-examiner.
Responding to the Objection
Rephrase the question
If possible, rephrase the question. For example:
- What, if anything, happened next?
- What, if anything, did you observe at . . . ?
- Did you or did you not . . . ?
Explain the need for leading questions
If the witness is a child, is elderly, is hearing-impaired, does not speak English, or has difficulty remembering facts, ask the court’s permission to ask leading questions. Such questions help to focus both the witness and the narrative without being unduly suggestive. Demonstrate that your witness is unable either to recall or explain what happened without leading. You may need to lay a foundation for asking leading questions in such situations by:
- Establishing that the witness has relevant knowledge.
- Demonstrating that the witness is unable to communicate in narrative form.
- Establishing that a child or mentally-impaired witness has the ability to distinguish between truth and lying, or between right and wrong.
If the objection is overruled and you are allowed to lead a witness, limit leading as much as possible to focusing the witness, refreshing the witness’ recollection, or assisting the witness in communicating. If you put answers directly into the witness’s mouth, you and the witness may lose credibility.
About the Author
Justice Helen E. Freedman has been a New York trial judge since 1979. In July 2008, Governor David Paterson appointed her to the New York State Supreme Court, Appellate Division, First Department. Justice Freedman has written and lectured extensively on trial practice, ADR, mass torts, and medical malpractice. She is a graduate of Smith College and New York University School of Law.