MBE Rules · Evidence
Mode of Examination — Leading
FRE 611
The rule
Leading questions are generally barred on direct but permitted on cross, with hostile witnesses, adverse parties, and for preliminary or foundational matters.
In plain English
Leading questions suggest their own answers and are usually not allowed during direct examination to ensure the witness's testimony is unbiased. However, they can be used during cross-examination, with hostile witnesses, adverse parties, and for preliminary or foundational matters to clarify or elicit specific information.
Worked example
During a direct examination, the attorney asks a witness, 'Isn't it true that you saw the defendant at the scene of the crime?' The opposing counsel objects, stating that the question is leading. The judge sustains the objection, requiring the attorney to rephrase the question. However, during cross-examination, the same attorney can ask the defendant, 'You were at the scene of the crime, weren't you?' and this question is permitted.
Memory hook
Lead with caution on direct, but let it flow on cross!
The trap
Exams often present scenarios where students mistakenly allow leading questions during direct examination, which can lead to incorrect answers. Students may also confuse the exceptions and apply them incorrectly.
How examiners test it
Questions typically involve a fact pattern where a witness is being examined, and students must identify whether the questions asked are leading and if they fall within any exceptions.
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