USING LEADING QUESTIONS DURING DIRECT EXAMINATION

CHARLES W. EHRHARDT[*] AND STEPHANIE J. YOUNG[**]

1996 Florida State University Law Review

I. INTRODUCTION
II. BEFORE ADOPTION OF FLORIDA'S EVIDENCE CODE
A. An Exception for Leading Questions on Direct Examination
B. Voucher Rule Barred Impeaching a Party's Own Witness
III. ADOPTION OF FLORIDA'S EVIDENCE CODE
A. Section 90.608: Impeaching an Adverse Witness
B. Section 90.612(3): Use of Leading Questions
C. 1990 Amendment to Section 90.608
D. Evidence Code Amendments Make Rule Unnecessary
1. Federal Rule 611(c): Leading Questions on Direct Examination
2. Federal Rule 611(c): Leading Questions on Cross-Examination
3. Federal Rule 611(c): Witnesses Subject to Leading Questions
IV. CONCLUSION

I. INTRODUCTION

Historically, limitations upon a party's impeaching its own witness[1] and upon using leading questions during direct examination[2] have been intertwined. This interplay continued longer in Florida than in most jurisdictions because Florida was slow to abandon the general rule against impeachment of a party's own witness. Underlying policies created confusion concerning the permissible use of leading questions during direct examination. Adding to the terms, similar terms defined impeachment and the exceptions to prohibitions on leading questions.

Clarification of this area began in 1990, when the Florida Legislature amended section 90.608, Florida Statutes, to adopt the Federal Rules of Evidence view, permitting impeachment of a party's own witness.[3] In 1995, the Florida Legislature amended section 90.612(3), Florida Statutes, to adopt Federal Rule of Evidence 611(c) providing for the use of leading questions during direct examination.[4] The Legislature thereby completed the clarification process.

This Article traces the development of the Florida Rules of Civil Procedure and the Florida Statutes from before the adoption of the Florida Evidence Code to the present as they affect the use of leading questions. The Article focuses particularly on the significance of the 1995 action of the Florida Legislature in amending section 90.612(3), Florida Statutes.

II. BEFORE ADOPTION OF FLORIDA'S EVIDENCE CODE

A. An Exception for Leading Questions on Direct Examination

Traditionally, questions asked a witness during direct examination cannot be in a form suggesting the answer to the witness. The rationale is that witnesses called by a party are presumed to give testimony favorable to that party,[5] and, therefore, leading questions are not necessary. Courts have barred leading questions on direct examination because a witness should testify to relevant facts personally known by the witness, without counsel's suggesting the desired answer.[6] If courts permitted the wide use of leading questions on direct examination, the jury could hear the lawyer's testimony instead of the witness's.[7] Courts do permit leading questions on cross-examination, on the assumption that the cross-examiner needs to suggest answers to the witness in order to explore adequately the reliability of the direct examination and the credibility of the witness.[8]

In 1967, the Florida Supreme Court adopted rule 1.450(a), Florida Rules of Civil Procedure, which recognizes an exception permitting a party to examine a hostile or unwilling witness with leading questions during direct examination.[9] When the witness demonstrates hostility or unwillingness to answer on the witness stand, the witness also demonstrates the need for leading questions.[10] Additionally, the rule permits a party to call an adverse party as a witness and "interrogate that person by leading questions."[11] When the adverse party is not a natural person or legal entity, rule 1.450(a) permits an examining party to use leading questions during the direct examination of an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.[12] Historically, courts presumed the necessity of using leading questions when examining an adverse party with a stake in the outcome.[13]

Florida courts disagreed as to whether an adverse party under rule 1.450(a) must be a person named as a party to the suit. One view was that the rule means that only those who are named as a party to the action may be examined as an adverse party.[14] The broader view was that an adverse party was one who "occupied an adverse position toward the party seeking to call him . . . and could have been named as a party."[15]

B. Voucher Rule Barred Impeaching a Party's Own Witness

Prior to Florida's adoption of the Evidence Code in 1976, Florida recognized the "voucher rule," whereby a party could not impeach or attack the credibility of a witness called by that party.[16] This rule resulted primarily from a belief that the party who called a witness to testify guaranteed that witness's credibility to the court.[17] However, opposing counsel could attack or impeach the credibility of a witness.[18]

Two exceptions permitted a party to impeach a witness called by that party. Section 90.09, Florida Statutes, now repealed, created a limited exception to the voucher rule by permitting a party to attack the credibility of a witness called by that party when the witness proved adverse.[19] Judicial decisions supplied a two-part test of adversariness: the witness's testimony must have surprised the party calling the witness, and the witness's testimony must have been prejudicial from the jury's perspective.[20] If counsel calling the witness learned of the testimony before the witness took the stand, the necessary surprise was not present.[21]

Section 90.09 restricted permissible impeachment to prior inconsistent statements and contradictions.[22] The statute specifically prohibited impeachment by "general evidence of bad character."[23]

Rule 1.450(a), Florida Rules of Civil Procedure, created a second exception to the voucher rule.[24] It allowed a party to call an adverse party as a witness and "contradict and impeach that person in all respects as if that person had been called by the adverse party."[25] The rule did not limit a party's impeachment of an adverse party to prior inconsistent statements.[26] A party could use any method permitted under the Evidence Code. This exception to the voucher rule was in addition to other language in rule 1.450(a), which permitted a party to use leading questions during the direct examination of a hostile or evasive witness or an adverse party.[27]

Confusion centered around the significance of labeling a witness a hostile witness, an adverse witness, or an adverse party.[28] A party could ask leading questions during the direct examination of a hostile witness or an adverse party, but usually not during direct examination of an adverse witness.[29] On the other hand, the party calling the witness could not impeach a hostile witness unless the witness was an adverse witness or an adverse party. A court might determine a single witness to fit any, or all, of the above definitions.

III. ADOPTION OF FLORIDA'S EVIDENCE CODE

A. Section 90.608: Impeaching an Adverse Witness

When Florida adopted its Evidence Code, the drafters and the Legislature chose to reject the modern view of the Federal Rules of Evidence, which permits a party to impeach its own witness,[30] and to retain, in section 90.608(1), the pre-Code statutory provision prohibiting a party from impeaching its own witness.[31] However, section 90.608(2) continued to permit a party to impeach that party's own witness, by using prior inconsistent statements or evidence that contradicted the witness's testimony, when the witness proved adverse.[32]

The subsection provided that surprise at the trial during a witness's testimony was no longer a prerequisite for applying the adverse witness rule.[33] Before a witness was adverse under section 90.608(2), the witness had to have given testimony that was affirmatively harmful or prejudicial to the party calling the witness.[34] The fact that the witness failed to give the testimony that counsel expected and that the testimony was not so beneficial as a witness's prior statement was not sufficient to label a witness adverse.[35] The party's testimony before the jury actually had to have harmed the case of the party calling the witness.

Defining an adverse witness was a complex task. An adverse witness could be friendly to the party calling the witness.[36] On the other hand, a witness who was hostile or unwilling or who had a relationship with one of the parties was not necessarily adverse.[37] Under section 90.608(2), if the witness did not remember a fact when testifying, the witness was not adverse and a party could not impeach the witness.[38] In the eyes of the jury, such testimony had not affirmatively harmed the case of the party calling the witness.

B. Section 90.612(3): Use of Leading Questions

Because of Florida's constitutional vesting of exclusive jurisdiction of procedural matters in the Florida Supreme Court and substantive matters in the Florida Legislature,[39] the drafters of the Evidence Code determined that the Legislature should not amend or recodify, within the Evidence Code, then-existing rule 1.450(a), Florida Rules of Civil Procedure. Rather, the Florida Legislature adopted section 90.612(3), which generally prohibited the use of leading questions on direct and redirect examination but permitted a party's use of them on cross-examination.[40] The provision in its introductory phrase, "[e]xcept as provided by rule of court," recognized rule 1.450(a), which permitted a party's use of leading questions during the direct examination of a hostile or unwilling witness or an adverse party.[41]

The remainder of subsection 90.612(3) provided the general rule concerning the use of leading questions:

[Except] when the interests of justice otherwise require:
(a) A party may not ask a witness a leading question on direct or redirect examination.
(b) A party may ask a witness a leading question on cross-examination or recross-examination.[42]

The phrase "when the interests of justice otherwise require" recognized that the trial court possesses the discretion to permit leading questions as an exception to the provision's general principles.[43] For example, when the question is preliminary,[44] a child is a witness or the witness is ignorant,[45] or when the witness's memory is exhausted[46] are all situations in which courts have suggested that leading questions are necessary and appropriate for a party to develop the testimony of a witness on direct examination.[47]

In addition, the last sentence of section 90.608(2), which permitted a party to impeach its own witness when the witness was adverse, provided that a party could use leading questions while impeaching such an adverse witness.[48] However, the subsection did not provide for the general use of leading questions throughout the direct examination of an adverse witness.

Thus, the policy decisions of the drafters and the Legislature in adopting the Evidence Code compounded the confusion concerning the significance of whether a witness was a hostile witness, an adverse party, or an adverse witness.

C. 1990 Amendment to Section 90.608

In 1990, the Florida Legislature amended section 90.608(1) and adopted Federal Rule of Evidence 607, which permits any party, including the party calling the witness, to impeach the credibility of a witness.[49] At the same time, the Legislature removed section 90.608(2), which permitted the calling party to impeach an "adverse witness" with a prior inconsistent statement.[50] Thus, the party calling a witness can impeach the credibility of the witness without regard to whether the witness is an "adverse witness."[51]

D. Evidence Code Amendments Make Rule Unnecessary

The Legislature has amended section 90.608 to permit the general impeachment of a party's own witness.[52] However, the Florida Supreme Court did not change the portion of Rule of Civil Procedure 1.450(a) that permitted a party to call the adverse party as a witness and impeach the witness. Section 90.608 now broadly permits that which rule 1.450(a) permitted only as a narrow exception. Therefore, portions of the rule permitting impeachment of an adverse party are now redundant and unnecessary.

To avoid confusion, the Florida Bar's Code and Rules of Evidence Committee voted unanimously to propose to legislators an amendment to section 90.612(3) adopting the language of Federal Rule of Evidence 611(c), and to recommend to the Bar's Civil Procedure Rules Committee that rule 1.450(a) be deleted from the Florida Rules of Civil Procedure.[53] Although some members of the Civil Procedure Rules Committee favored removing 1.450(a), the consensus of that committee was to make no recommendation on the rule until after the amendment of section 90.612(3).[54] The Civil Procedure Rules Committee indicated that, after amendment of the statute containing the Evidence Code, it would consider recommending to the Florida Supreme Court the removal of rule 1.450(a).[55]

Thereupon the Code and Rules of Evidence Committee recommended the following amendment, which was passed by the 1995 Florida Legislature:

(3) Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness'[s] testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.[56]

Because of the committee's concern that adopting the amendment might indicate an intention to alter the law as stated in section 90.612(3), the committee drafted and approved the following committee note and forwarded it to the Board of Governors of The Florida Bar and to the Florida Legislature:

Commentary on the 1995 Amendment

Subsection (3). This subsection was amended by adopting the language in Federal Rule of Evidence 611(c). The purpose of this amendment is to clarify the rule pertaining to leading questions by specifically authorizing leading questions when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. There is no intent to negate the effect of the prior rule that prohibited leading questions on direct or redirect examination and permitted leading questions on cross-examination and recross-examination 'except as provided by rule of court or when the interests of justice otherwise require.'[57]

Both the accompanying Committee Note and the Code and Rules of Evidence Committee Report indicate the committee's intent to clarify, but not change, Florida law relating to a party's use of leading questions.[58] An analysis of the amended statute and Florida law relating to statutory construction bears out that intent.

1. Federal Rule 611(c): Leading Questions on Direct Examination

Amended section 90.612(3) adopts the language of Federal Rule of Evidence 611(c). Determining the significance of amended section 90.612(3) requires examination of judicial decisions interpreting the federal rule upon which the Florida statute is based. Florida courts will construe these federal decisions as providing "persuasive guidelines" for the interpretation of this amendment to the Evidence Code.[59]

The first sentence of Federal Rule of Evidence 611(c) codifies the well-established general rule that a party should not use leading questions on direct examination.[60] The words "should not" are words of suggestion, not command;[61] application of the prohibition is within the court's discretion.[62] Hence, despite the rule's implicit admonishment against a party's use of leading questions on direct examination, the rule nonetheless maintains the trial court's discretion to permit them.[63]

Subsumed in the rule and stated in decisional law is the premise that courts determine, on a case-by-case basis, whether parties may ask leading questions during direct examination. Adopting the wisdom of courts before it, the United States Supreme Court recognized that "in each particular case there must be some discretion in the presiding judge as to the mode in which the examination shall be conducted in order best to answer the purposes of justice."[64] Moreover, the trial court may, on its own initiative, instruct counsel to ask leading questions on direct examination.[65]

The language of rule 611 recognizes that a party may use leading questions on direct examination where they are "necessary to develop the witness'[s] testimony."[66] Generally, the necessity exception has been applied where the witness is very young, timid, ignorant, unresponsive, or infirm.[67] In United States v. Nabors,[68] a twelve-year-old boy with key testimony connecting the defendants to a bank robbery was hesitant to repeat a "naughty" word in a statement implicating the defendant declarant.[69] Noting the long-recognized exception permitting a party to use leading questions to develop the testimony of a child witness, the Eighth Circuit held that the district court's decision to allow the questioning deserved deference because the "court was in the best position to evaluate the emotional condition of the child witness and his hesitancy to testify."[70] Other circumstances that may require a party to use leading questions to develop witness testimony include, for example, when a witness is an adult with communication problems,[71] when the witness's memory is exhausted,[72] or when the witness is testifying to undisputed preliminary matters.[73]

2. Federal Rule 611(c): Leading Questions on Cross-Examination

The second sentence of Federal Rule of Evidence 611(c) provides that "[o]rdinarily leading questions should be permitted on cross-examination."[74] Although tradition has long supported a party's use of leading questions on cross-examination as a matter of right,[75] that right is not absolute. The operative word "ordinarily" furnishes a basis for a court to deny a party's use of leading questions when the cross-examination is in form only.[76] If the witness is actually friendly to counsel, there is no need for a party to ask suggestive questions during such a cross-examination. Consequently, the trial court has the discretion to limit counsel's use of leading questions during cross examination.[77]

3. Federal Rule 611(c): Witnesses Subject to Leading Questions

The final sentence of rule 611(c) deals with categories of witnesses who can be automatically subject to leading questions during direct examination.[78] When a party examines a witness who is hostile, that party may ask leading questions because they are necessary to control the witness.[79] A court will not presume that the witness is hostile but will determine whether a witness is hostile at the time of the testimony.[80] A party is not entitled to examine a witness as hostile simply because the examiner expects the witness to give testimony favorable to the opposing party.[81] If the witness becomes hostile during testimony, a court may permit leading questions.[82]

Courts automatically consider some witnesses hostile and, therefore, permit a party to ask leading questions during direct examination without a showing that the form of the question is necessary to develop the testimony of the witness.[83] A party may examine an adverse party with leading questions because, however cooperative, the adverse party has a built-in incentive to provide self-serving testimony by sliding away from the question or slanting the answer.[84] Rule 611(c) also provides that a party may ask leading questions during the direct examination of a "witness identified with an adverse party."[85] Where the witness is a present or former employee of the party, a co-worker of the party, a relative of the party, or has a romantic interest with a party, sufficient commonality may exist to allow a court to decide that the witness identifies with the adverse party and therefore is automatically subject to examination by leading questions.[86]

IV. CONCLUSION

As Florida law recognizes, Federal Rule of Evidence 611(c) permits a party to use leading questions during direct examination when necessary, that is, when a question is preliminary, when the witness is a child, or when the witness's memory is exhausted.[87] The 1995 amendment to Florida's section 90.612 restates and clarifies the circumstances where a party may use leading questions. Section 90.612(3) now clearly identifies the witnesses a court will automatically consider hostile, and, therefore, subject to leading questions. A court should consider a witness to be hostile if he or she is an officer, director or managing agent of a corporation, partnership, or association that is an adverse party. That category of witness is included within the phrase "witness identified with an adverse party" in the amended section 90.612(3).[88] The phrase also removes uncertainty as to whether a witness must be a named party in the action to be deemed an adverse party. In adopting the phrase "witness identified with an adverse party," the amendment recognizes that allowing leading questions on direct examination of these witnesses is desirable because of the underlying relationship between the witness and the adverse party.[89]

The legislative adoption of Federal Rule 611(c) completed Florida's statutory codification of provisions of the Federal Rules of Evidence dealing with impeachment of a party's own witness and the use of leading questions. These actions eliminate confusion and bring Florida in line with the modern view of the majority of states.

However, the application of rule 1.450(a) remains confusing because the rule does not reflect recent legislative action permitting impeachment of a party's own witness. In fact, the rule is no longer necessary, and the Florida Supreme Court should delete it. The only matter remaining in rule 1.450(a) that is not covered more broadly in the Evidence Code is the use of leading questions during direct examination, a matter more properly addressed within the Evidence Code than in the Rules of Civil Procedure. Legislators did address the matter of leading questions on direct examination by adopting, in the 1995 amendment to section 90.612(3), language that restates circumstances where leading questions are appropriate.

If the Florida Supreme Court chooses to amend rule 1.450(a) by using different language to describe circumstances where leading questions are permitted during direct examination, the difference in wording will only create further confusion. The Civil Procedure Rules Committee of The Florida Bar has continued the clarification effort by voting to recommend the deletion of rule 1.450(a).[90] The Florida Supreme Court's adoption of this recommendation will eliminate confusion and clarify Florida law.