This lack of clarity makes it particularly important that practitioners understand the problem well enough to address it at the level of the trial court at the present time in order to achieve the desired result. To help practitioners navigate closed-ended questions, this article will cover the general rule of evidence regarding policy questions, the definitions needed, the treaties and cases most commonly used to answer this question, and the reasons for the ongoing confusion surrounding this topic. After you make your opening remarks, you will be asked to call your witnesses. The other party will also call witnesses. You must question your witnesses and have the opportunity to question the other party`s witnesses. Before your trial, you will want to think about the questions you should ask the witnesses. There are 2 ways to question witnesses: Courts may also cite the various editions of McCormick`s and Wigmore`s treatises on evidence to determine whether a closed-ended question is inherently suggestive.12 These documents are cited in the relevant notes to Rule 611 of the Federal Rules of Evidence to elaborate on other points related to this rule.13 Both treaties state: that closed-ended questions are not inherently suggestive and whether or not the questioner suggests so. A correct or preferred answer is the determinant of a guiding question.14 However, both documents also note that closed-ended questions can often lead to guiding questions due to wording or emphasis.15 While this is the fundamental difference between guiding and non-guiding questions, things are rarely so clear. In fact, an improbable, but theoretically possible, objection to my very first question – “What`s your name?” – is that, unless the person has a name, the questioner could lead the witness to an answer for which there is no basis. In this case, the appropriate question in this case would be, “Do you have a name?” Followed by: “If so, what is it?” Because of their potential to lead to misleading evidence, these types of questions are not admissible in a direct investigation, that is, when a party`s lawyer is questioning their own witnesses.
In these cases, lawyers should generally use open-ended questions such as “What did you observe on the day in question?” Because Rule 611(c) does not contain a definition of a policy question, courts in most jurisdictions9 use the definition in Black`s Law Dictionary.10 Black`s defines a guiding question as “[a] question suggesting the answer to the respondent; In particular, a question that can be answered with a simple “yes” or “no”. 11 This definition does not explicitly indicate whether closed-ended questions are inherently suggestive or not. Created by FindLaw`s team of writers and legal writers| Last updated January 28, 2019 When a lawyer uses intelligent language and specific details when questioning witnesses to give them the desired answer, it is called a key question. As an example, consider the following hypothetical exchange in the courtroom: The person who first taught me how to ask effective guiding questions was Fred Goodman of the Defender Association of Philadelphia. You decide what the story should look like. Then start saying it using short, declarative sentences that, at least initially, focus on areas where the witness agrees with you. Conversely, questions that elicit “yes” or “no” answers are not necessarily suggestive, as is sometimes said. “Did you see anything?” doesn`t lead. “Did you see a dog in the window?” could be depending on the context. The other party will also call witnesses, once they have questioned them, it`s your turn. Asking questions of other witnesses is called cross-examination.
You are allowed to ask key questions. As it stands, most questions fall somewhere between “What happened next?” and “You went to the store next, didn`t you?” For example, “Where did you go next?” is more specific than “What happened next?” because it limits the reaction to the witness` movements, as opposed to what they thought, smelled, heard, or felt. But unlike “You went to the store next, right?”, it doesn`t point the witness to a specific location. Even neutral questions can lead witnesses to obtain answers based on wording, response framework, assumptions and form. For example, the words “fast”, “collision” and “how” can change respondents` speed estimates. [4] Once you`ve exhausted the points of agreement, start looking at areas of potential disagreement. If you have used a rhythm and cadence that rewards the witness for working with you, the witness can still agree. They continue to keep your questions narrow so you can limit the harm when disagreements start, and if/when they do, gently examine areas of disagreement in hopes of narrowing or clarifying them. Assuming you`ve done your homework, you can also start retaliating with impeachment. There is nothing more pleasant than a well-developed and executed impeachment trap. As with all other disagreements, usually leave them alone.