Direct and Cross-Examination: High Sticking


Charge: aggravated assault and battery. Defendant: D, a professional hockey player for the out-of-town Brotherly Bullies. Victim: Kevin O'Casey, a loyal hometown fan. M.O.: striking O'Casey over the head with a hockey stick in the local arena on February 14. At D's trial, O'Casey is the first prosecution witness and testifies on direct examination as to his name, age, employment, and so forth. The assistant D.A. next has a hockey stick marked as People's Exhibit A for identification. The direct examination continues:

Q: I show you what has been marked as People's Exhibit A for identification and ask you if you recognize it?

(The witness does not answer.)

Q: Mr. D struck you with this, didn't he?

By defense counsel: Objection--leading question.

What ruling and why?

The second witness at D's trial is Bobby Boor, a member of the local team who has been subpoenaed and called by the defense as its first witness. On cross-examination of Boor by the assistant D.A., the following occurs:

Q: Did you see anyone strike O'Casey?

A: Yes.

Q: Was it you?

A: No.

Q: It was the defendant, D, who struck him, wasn't it?

By defense counsel: Objection.

What ruling and why?

What standard should be used in deciding whether a question is an improper leading question? What are the practical or policy considerations for the rule prohibiting leading questions to a friendly witness? What is wrong with leading a friendly witness?

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