Federal Evidence Review

In drug conspiracy bench trial, court's wide latitude in allowing the use of leading questions under FRE 611(c), even when the trial judge sustained the defendant's objection to leading questions on 24 occasions, over the course of a nine day trial was harmless error because "twenty-four instances of leading questions over the course of the trial" did not "so affect[] [defendant]'s substantial rights as to deprive him of a fair trial," in United States v. Bowie, _ F.3d _ (8th Cir. Aug. 25, 2010) (Nos. 09-2018, 09-2295)

FRE 611(c) codified a prevailing practice in the federal courts that leading questions "not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony." FRE 611(c). As explained the the Advisory Committee Notes, the rule recognized "[a]n almost total unwillingness to reverse for infractions has been manifested by appellate courts. The matter clearly falls within the area of control by the judge over the mode and order of interrogation and presentation and accordingly is phrased in words of suggestion rather than command." ACN FRE 611(c) (citation omitted). In a recent case, the Eighth Circuit demonstrated the difficulty appellate courts have with arguments on the form of questioning which seem only to identify a technical infraction of the rules.

In the case, defendant Edwards was a members of the "Rolling Thirties Bloods " or "RTB" who were indicted on federal drug conspiracy and firearm charges. The defendant pled not guilty to these charges but waived his right to a jury. Accordingly the judge conducted a bench trial which lasted nine days. It ended with the judge finding the defendant guilty of the charged crack cocaine and firearms conspiracies. The defendant appealed, contending that the trial court erred in allowing the prosecutor to ask leading questions on twenty-four occasions and allowing the prosecutor to intimidate the defendant's "supporters in the courtroom."

With regard to whether the trial judge improperly allowed the prosecutor to ask leading questions in violation of FRE 611(c), the circuit appeared to suggest that it was virtually a matter of numbers:

“'[A]lthough Federal Rule of Evidence 611(c) generally discourages the use of leading questions on direct [examination], it is not automatically improper for the prosecutor to ask such questions or for the district court to permit their use.' Leading questions on direct examination are permitted 'to develop the witness' testimony' and to inquire of a hostile or adverse witness. '[T]he trial judge has wide latitude in permitting leading questions because he or she is in the best position to determine the need for them.' Edwards alleges the government continued to ask leading questions despite the fact the district court sustained Edwards's objection to a leading question on at least twenty-four occasions, and the cumulative effect of the leading questions tainted the district court's verdict and warrants reversal. We disagree. Edwards's trial lasted nine days, and we cannot say twenty-four instances of leading questions over the course of the trial so affected Edwards's substantial rights as to deprive him of a fair trial."

Bowie, _ F.3d at _ (citing United States v. Fenner, 600 F.3d 1014, 1022 (8th Cir. 2010) ("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."))

In essence, the circuit's conclusion in Bowie turned less on the leading nature of the questions, but rather whether the questions used by the prosecutor harmed the defendant'sd case to any significant degree. Apparently the circuit considered the use of leading questions merely a technical requirement and because the bulk effect of propounding 24 of them over a 9 day criminal trial was not considered significant enough to adversely impact the defendant. Except for the number, it did not appear that the defendant explained to the circuit how any of the 24 questions at issue was merely not in a proper form.