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What Is A Leading Question

by David L. Cleveland

In Immigration Court, a question may be objected to because it is "leading." At an Individual Hearing of an asylum case, counsel for respondent asked this of respondent:

      "In December 1997, where did you live, and what happened?"

The Assistant Chief Counsel objected, arguing that the question was leading.

This article will provide arguments as to why this question is not leading.

The Federal Rules of Evidence do not govern Immigration Court proceedings. Olabanji v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992). However, those Rules offer guidance.

Some leading questions are permissible

Rule 611[c] of the Federal Rules of Evidence provides that "Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony."

Judge Weinstein stated that leading questions "will more quickly get the witness over preliminary matters. Often, leading questions are asked on preliminary and collateral matters to expedite the trial." Weinstein’s Federal Evidence (Matthew Bender 2nd Edition) §611.06

In United States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963), the court defined a leading question as one which suggests "the specific tenor of the reply desired by counsel that such a reply is likely to be given irrespective of an actual memory. The evil to be avoided is that of supplying a false memory to the witness."

Asking the witness "what happened in December 1977?" does not suggest a specific answer; nor does it supply a false memory to the witness.

A question which directs the attention of the witness to a particular subject is not objectionable.

Numerous courts have held that it is proper to direct the attention of a witness to a particular subject:

"Whilst leading questions, suggesting to a witness, the answer desired are not allowable; in order to facilitate the examination of a witness, questions which are merely introductory, and direct the attention of the witness to the particular subject of inquiry, are not objectionable." Buschman v. Morling, 30 Md. 384, 390 (1869) (emphasis supplied).

"It is often proper and commendable to direct the witness’ attention to the subject of inquiry, or to refresh his recollection as to some omitted detail, by a leading question." State v. Dwyer, 172 N.W. 2d 591, 597 (N.D. 1969)

"The district attorney was either directing the witness’s attention to the subject matter at hand without suggesting an answer or was seeking to aid the witness’s recollection or refresh her memory … Both are permissible in the discretion of the trial judge." State v. Mosley, 33 N. Caro. App. 337, 235 S.E. 2d 261, 263 (1977)

"Where leading question merely direct the witness’ attention to the topic of inquiry, they are proper." State v. Brown, 112 Ohio App. 3d 583, 599; 679 N.E. 2d 361 (1996)

The Ohio Supreme Court ruled that the following is NOT a leading question:

“‘I’m going to turn your attention to Saturday morning, September 24, 1988, okay?…What were you doing at that time?’"

The court stated. "A leading question instructs [the] witness how to answer or puts into his mouth words to be echoed back..The questions here merely direct the witness’ attention to the topic of inquiry, which was proper. See 3 Wigmore on Evidence (Chadbourne Rev. 1970) 154, Section 769." State v. D’Ambrosio, 67 Ohio St. 3d 185, 190, 616 N.E. 2d 909 (1993)

Numerous courts have held that some YES or NO questions are not leading.

"Do you remember whether in the jail you asked him if he had ever seen you before?

"Do you remember whether at the jail you had any conversations with him, or not, about when he had last seen Miss Madison?"

"These questions are not leading; but are merely introductory; …" Cluverious v. Commonwealth 81 Va. 787, 800 (1886)

In the case State of Maine v. Weese, 424 A.2d 705, 708, 1981 Me. LEXIS 718 (Supreme Court of Maine, 1981), the following question was ruled to NOT be leading:

"Now did you or your father or even the other two boys who were with you, did they in any way, either of you, intend to hunt any animals?"

The court stated that a question is not leading "merely because it calls for the witness to respond with a simple ‘yes’ or ‘no.’" 424 A.2d 705, 709.

The court further explained that a question is leading "when it encourages the witness to adopt as his answer an assertion implicit in the question rather than to state the witness’s own recollection. Every question is leading in the sense that it directs the witness’s attention to a particular event or topic. " 424 A.2d at 709, (emphasis supplied).

"An objectionable leading question not only solicits an answer concerning a specific topic but also suggests a desired specific answer in regard to that topic. It is not necessarily improper for counsel to ask his witness a detailed and pointed question that may be answered ‘yes’ or ‘no.’ Objectionable leading occurs when the question suggests to the witness the answer that is desired, thereby diminishing the likelihood that the answer will be the truth." 424 A.2d at 709.

A Texas court, H.E. Butt Grocery Co. vs. Heaton, 547 S.W. 2d 75, 76, 1977 Tex. App LEXIS 2690, (1977) ruled that the following was NOT a leading question:

"Would you tell the court whether or not the same layer of dirt that was on the floor proceeded to cover the grapes as if they had been there for a great length of time?"

The court stated that the "mere fact that plaintiff was asked to state ‘whether or not’ the fact existed did not make this particular question leading." 547 S.W. 2d 75, 77.

Another non-leading question:

"Did Chris Ealy say anything in the car that would indicate to you that he had a firearm?"

Held: this is NOT a leading question. The question "did not suggest an answer or put words in the mouth of the witness to be echoed back." State v. Ealy, 2004 Ohio App LEXIS 436 (Ct. App. Ohio, 1977)

If a "yes or no" question is not necessarily leading, then certainly a question that asks what happened in December 1997 is not leading.


Asking "What happened in December 1997?" does not suggest an answer. The question does not put any words into the mouth of the witness to be echoed back.

About The Author

David L. Cleveland is a staff attorney at Catholic Community Services of Washington DC. He was the Chair of the AILA Asylum Committee from 2004-2005.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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