Posted by Anthony J. Fejfar BA, JD, MBA, Phd on 1/10/12

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Under the Federal Rules of Evidence an attorney is not
permitted to lead on direct. Many attorneys find it
difficult to ask a question on direct examination without
leading the witness. However, an exception to the leading
question prohibition is that the attorney is allowed to ask
questions to lay foundation. Given this situation it is
possible to lead on direct, without objection by asking
questions which are technically foundation laying questions,
such as:
You cannot ask:
Jane, what were you doing at 5 pm, on
August 15, 2009, at the McDonalds on 4th street?

The above question assumes facts not in evidence, and
suggests that Jane was in fact at McDonalds at that time.
Therefore, the question above is objectionable as a leading
question on direct.

You can ask the following question without objection:

Jane, can you tell me what, if anything, you were
doing at the McDonalds on the evening of August 15?

Note, the question is only laying foundation. The question
asks "can you tell me". Thus, the witness, technically will
respond, essentially by saying, "Yes, I can tell you
what was going on at the McDonalds on the evening of
August 15."
Attorney: Please do so.

Of course, to save the Court time, the witness could simply
respond:
Yes, I was there eating a hamburger when the defendant
walked in with a shotgun.

(C)Copyright and (P)Patent by Anthony J. Fejfar and
Neothomism P.C. (PA)

Anthony Fefjar Legal Consultant

How to Lead on Direct without Objection, 1/10/12, by Anthony J. Fejfar BA, JD, MBA, Phd.

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