Federal Evidence Review

"Even assuming impropriety" in prosecutor's use of leading questions on direct examination of its witnesses under FRE 611(c), no error in allowing use of the questions because the trial transcript indicated that the defendant failed to object to all but a few of the questions and failed to demonstrate any prejudice as a result of those leading questions, in United States v. Fenner, 600 F.3d 1014 (8th Cir. March 30, 2010) (Nos. 08-3953, 08-3955)

Using leading questions on direct examination of a witness is not always improper, "except as may be necessary to develop the witness' testimony." FRE 611(c). The rule suggests that this might be necessary when counsel faces examination of a hostile witness, an adverse party, or a witness identified with the adverse party. Because an improper leading question can so easily be corrected, the courts appear to have little patience with appeals citing as error the use of leading questions in which the objecting party failed to make a contemporaneous objection. The recent Eighth Circuit case of United States v. Fenner suggests the almost-mechanistic manner in which an appellate court may consider an appeal citing as one ground for error the trial judge's admission of leading questions.

In the case, the defendant Fenner and others were charged with conspiring to distribute fentanyl and more than fifty grams of cocaine base, along with various distribution and possession-with-intent-to-distribute offenses related to the conspiracy. The defendant had a three-day jury trial that ended in his conviction. Among the grounds he raised on appeal of his conviction and sentence was the charge that the trial judge allowed the prosecutor to ask leading questions of key witnesses during its direct examination.

The opinion in Fenner's case fails to cite any specific exchanges from the trial transcript in which leading questions were used. Instead, the defendant made "several broad accusations that the Government used leading questions on direct examination of its key witnesses." The circuit noted that this was not a propitious ground for appeal for two reasons: First, "[w]e observe that although Federal Rule of Evidence 611(c) generally discourages the use of leading questions on direct, it is not automatically improper for the prosecutor to ask such questions or for the district court to permit their use. The plain language of the rule allows leading questions, for example, as necessary as to develop a witness's testimony." Fenner, 600 F.3d at 1022 (citing United States v. Reddix, 106 F.3d 236, 238 (8th Cir.1997)) Second, the trial judge has considerable discretion in allowing use of leading questions: "Simply put, the trial judge has wide latitude in permitting leading questions because he or she is in the best position to determine the need for them." Fenner, 600 F.3d at 1022 (citing United States v. Schepp, 746 F.2d 406, 410 (8th Cir.1984)).

Rather than pour through the questions used by the prosecutor, the circuit dodged the problem by noting that ultimately, even if leading questions had been asked, it was harmless:

"Even assuming impropriety in the phrasing of some of the Government's questions, upon review the transcripts, we cannot agree with Fenner that 'eventually all ... objections were overruled' or that the Government 'was allowed to lead crucial witnesses insistently.' By our count, Fenner's attorney objected eight times during the Government's case in chief as to the form of specific questions as leading: three times during the first informant's testimony and five times during Hargrove's. In all but two instances, the district court sustained the objections and the government rephrased. On these facts, we cannot say Fenner was prejudiced by the use of leading questions."

Fenner, 600 F.3d at 1022 (citing United States v. Schepp, 746 F.2d 406, 410 (8th Cir. 1984) (trial judge did not abuse his discretion in permitting leading questions where defendant's counsel objected only three times during the government's examination of its key witness); United States v. Reddix, 106 F.3d 236, 238 (8th Cir.1997) (same)).

In Fenner the defendant ran into the elusiveness of FRE 611(c). Appeals based on the leading form of questions the trial judge allowed have a high hurdle to climb because "the language of Federal Rule of Evidence 611(c) expressing a preference for non-leading questions is only precatory and, that generally trial judges are afforded a large degree of discretion in overseeing the examination of witnesses." Sanders v. New York City Human Resources Admin., 361 F.3d 749, 757 (2d Cir. 2004) (In race and gender employment discrimination case, plaintiff contended she was "entitled to a new trial" because "the trial judge allowed defendant's counsel to lead non-hostile witnesses on different occasions; no indication judge abused his discretion in allowing the leading questions and "[i]n any event, the leading questions in this case can hardly be said to have been prejudicial.")