Direct examination of witnesses is governed by considerations of relevance and the discretion of the trial court to exclude relevant testimony if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence.1
A judge has broad discretion in allowing leading questions on direct examination.1.1 Generally, leading questions have not been allowed in direct examination. This rule is grounded in the principle that the most important peculiarity of the interrogational system is that it may be misused by suggestive questions to supply a false memory for the witness — that is, to suggest desired answers not in truth based upon a real recollection.1.2 However, the rule allows leading preliminary questions to bring out facts which will not be contested, to refresh the memory of a witness whose recollection has been exhausted, to hostile witnesses or to elicit testimony from a witness who for any reason may be inarticulate or uncomprehending. When a witness has been questioned in detail on a matter, the witness may be asked if his or her recollection is exhausted. If the reply is in the affirmative, the basis for a leading question as to the particular matter that the examiner wishes to bring out has been laid. The foregoing exceptions were not intended to be changed by Delaware Rule of Evidence 611(c), which provides that “leading questions should not be used on direct examination” but provides a broad exception “as may be necessary to develop … testimony,” and specifically excepts from the rule examination of a hostile witness, adverse party or a witness identified with an adverse party, by the party calling the witness.2
It has been noted that the rule limiting leading questions may be applied with more lenience in the case of expert witnesses. For example, leading questions to an expert can be appropriate in a complex medical malpractice case where the expert’s testimony is necessary to establish the accepted standard of care, but which opinion can be complicated to explain to the jury. Allowing leading questions to expert is justified on the ground that experts, being trained professionals, are less likely to be influenced by leading questions suggesting answers. Nonetheless, the degree to which leading questions may be posed to experts on direct examination remains within the discretion of the court.2.1
1. D.R.E. 401, 402, 403.
1.1. D.R.E. 611(c); Christiana Care Health Services, Inc. v. Crist,956 A.2d 622, 626 (Del. 2008).
1.2. Christiana Care Health Services, Inc. v. Crist, 956 A.2d 622, 626 (Del. 2008).
2. D.R.E. 611(c). The advisory committee notes to parallel Federal Rule of Evidence 611 point out that subsection (c) clearly falls within the area of control over mode and order of interrogation committed to the judge and, under subsection (a), “accordingly is phrased in words of suggestion rather than command.” Fed. R. Evid. 611 advisory committee’s note. D.R.E. 611 tracks Fed. R. Evid. 611. D.R.E. 611, comment.
2.1. Crist v. Conner, C.A. No. 05C-06-101RRC, slip op. at 3-7, Cooch, J. (Del. Super. Aug. 31, 2007), aff’d sub nom. Christiana Care Health Services, Inc. v. Crist, 956 A.2d 622 (Del. 2008).
© 2010 David L. Finger