BY ATTY. JULIUS GREGORY B. DELGADO
ON LEADING AND MISLEADING QUESTIONS DURING CROSS-EXAMINATION OF A WITNESS
During the continuation of the Impeachment Trial of Vice President Sara Duterte, a heated exchange between the counsel for the prosecution, Atty. Lorna Kapunan, and defense counsel, Atty. Kristine Ferrer, occurred centered on whether misleading questions are allowed during cross-examination. But what are leading and misleading questions?
Under Section 10, Rule 132 of the Rules on Evidence, on the one hand, a question which suggests to the witness the answer which the party desires is a leading question. Leading questions are not allowed except: (a) during cross-examination; (b) on preliminary matters; (c) when there is a difficulty getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; (d) of an unwilling or hostile witness; or (e) of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. On the other hand, a misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. Misleading question is not allowed under any circumstances during trial.
For example, the following questions are considered leading questions: “Mr. Witness, you saw the white sedan run the red light, didn’t you?”, “Mr. Witness, isn’t it true that you were just at your house during the evening the incident happened?”, or “Mr. Witness, you locked the front door before you left the house, correct?” If a lawyer is presenting his witness on direct-examination for his or her evidence-in-chief, these questions are not allowed, objectionable and may be stricken off the records. On cross-examination, these questions are allowed.
As examples, these are misleading questions: “Ms. Witness, why did you hide the stolen money in your desk?” (when the witness never admitted to stealing or hiding money), “Ms. Witness, what did you do after the defendant hit you with a wood?” (asked when no prior evidence or testimony to establish that a wood was used), or “Ms. Witness, why did you change your mind about quitting from your job?” (when the worker never stated that she wanted to quit). So even on cross-examination, a lawyer cannot ask the witness a misleading question and such may be objected and the witness may be prevented from answering the same, or if he or she answered already, the same may be stricken off the records.
The rationale of not allowing any misleading question is basic tenet of due process and fair play. First, it prevents the lawyer doing to cross-examination from tricking or trapping a witness into agreeing a false narrative. Second, it stops false assumptions or weeds out unproven or fabricated facts out of the court records. Third, it protects the judge from confusion or being mislead by distorted statements.
In fairness to Atty. Ferrer, under extreme pressure of a televised trial, she may be referring to leading questions being allowed on cross-examination and not misleading questions. At that point, she was trying to corner the witness into answering by merely “Yes” or “No” which is the usual style during cross-examination. Atty. Kapunan, however, correctly averred that not all cross-examination questions may be answered by a “Yes” or “No”. Atty. Ferrer was quick to say that she is on cross or doing cross-examination and would like to limit the witness by answering by a “Yes” or “No” and if Atty. Kapunan thinks the answer will be damaging to their case if not elaborated or explained, Atty. Ferrer said she can ask clarificatory questions on re-direct examination.