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    Post: How to Lead on Direct without Objection

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

    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
    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

    Posts on this thread, including this one
  • How to Lead on Direct without Objection, 1/10/12, by Anthony J. Fejfar BA, JD, MBA, Phd.

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