Tips From the Bench News From the Courthouse Objection, Leading!

Is It Worth It?

by Judge Christopher J. Ramras Multnomah County Circuit Court

As a lawyer, I found objecting to leading questions often unsatisfying. Even when sustained, opposition witnesses were keyed into what opposing counsel wanted; it was easy for them to restate the question and receive a prompted response. This article discusses making the most of objecting to leading questions.

The first step is to identify what a leading question is. OEC 611(3) addresses when leading questions may be asked; but doesn’t define the term “leading.” One has to go back nearly 100 years for case law defining the term.

“The test of a leading question is whether it suggests the answer on material matters, as it were, by putting the words or thought in the mouth of the witness to be echoed back.” State v. Sing, 114 Or. 267, 288 (1924) citing Underhill’s Criminal Evidence (3rd ed.) sec. 342. A question may suggest an answer based on its phrasing, extent of detail, tone of voice, emphasis on particular words or even nonverbal conduct. Laird C. Kirkpatrick, Oregon Evidence, sec. 611.05, (7th ed. 2020).

Notably, the fact that a question calls for a simple “yes” or “no” answer does not, in and of itself, make a question leading, even if the question “calls attention to a subject about which testimony is desired.” Coates v. Slusher, 109 Or. 612, 621 (1924) emphasis added. My experience has been that attorneys frequently misunderstand this last point, objecting when a question calls for a yes-or-no answer without suggestion of the desired answer.

OEC 611(3) generally prohibits leading questions during direct but allows them “as may be necessary to develop the witness’ testimony.” Such necessity may arise due to a witness’s confusion, fear, or immaturity, among other reasons. Thus, greater leeway is given for leading questions put to children, or people with cognitive limitations. In addition, OEC 611(1) allows the court to control presentation of evidence so that it is effective and efficient, as well as to protect witnesses from being harassed or embarrassed. In short, there are many exceptions to the general rule against leading a witness during direct.

Leading questions are ordinarily allowed during crossexamination; but may not be when a party is calling a witness identified with the opposing party. Kirkpatrick, supra, provides an example of a plaintiff’s lawyer not being allowed to cross-examine the plaintiff when the defendant has called the plaintiff to the stand.

With all these qualifications, when does it make sense to object to a “leading” question?

Many attorneys are not in trial regularly. Even those who are may have acquired rust during the gap in trials of the COVID years. Like anything, trying cases takes practice and improves with repetition. Objecting to leading questions can throw opposing attorneys off their game. I have seen attorneys become flustered and withdraw their question altogether rather than collect their thoughts and restate the question in non-leading fashion. This can also result in their witnesses becoming confused as to what they are allowed to answer. They may begin to respond with less detail and confidence, a distinct advantage for the side objecting.

One can quickly determine whether the opposition can effectively handle proper objections simply by making a few to test the waters. But suppose opposing counsel can quickly rephrase a once-leading question in proper form. What is the best strategy if they continue to lead?

The simple answer is to ask the judge to instruct them to refrain from asking further leading questions. Whether or not the judge agrees to do so, the judge will be cued into the issue. This makes it more likely they’ll side with you down the road. As with any objection, the fact you are not sustained on an initial “leading” does not mean you won’t be later, especially if you are highlighting a pattern that becomes clearer to the judge during the course of the trial. I have been surprised by attorneys who, overruled once, are reluctant to object again. As long as objections are stated in a neutral tone, I do not believe jurors are bothered by them. To the contrary, I believe popular culture has trained jurors to expect them. There is even a time to object in a tone of righteous indignation, but it is a tool you should use sparingly.

So, what is the takeaway?

When the other side is leading, throw out a few objections and see how it goes. Adjust accordingly depending on how they respond. Don’t hesitate to ask the judge to instruct opposing counsel to refrain from leading; a jury wants to hear from the witnesses, too, not just the lawyer’s version of what they think, saw or heard.

by Leslie Johnson MBA Court Liaison

Committee

Presiding Judge’s Report

- Presiding Judge Judith Matarazzo

Trials estimated to last longer than five days should be reported to the court six to eight weeks in advance. Contact Cheri Coe (Cheri.L.Coe@ojd.state.or.us, 503.988.3846). Holiday weeks and common vacation weeks require additional advance planning for judicial coverage.

Judge Matarazzo received notices as late as March about longer trials or late-arising conflicts (e.g., unavailable witnesses) falling during spring break. By the time this notice was received, the presiding court had already made many special assignments and didn’t have any more judges available. These problems should be foreseeable.

Judge Matarazzo reports that the court is still receiving many requests for postponement even though she has made it clear that older cases need to go to trial. She also notes that the court is seeing some difficulty with estimates for trial length. Many trials seem to be taking longer than estimated and that may be due in part to the bar being less familiar with the new courthouse. She encourages lawyers to be as realistic as possible with estimates of trial length and to notify the court with an updated estimate of the trial length as early as possible, at least six to eight weeks before trial, if not sooner.

Trials in Multnomah County are traditionally planned for Monday through Thursday, allowing judges to use Friday for other court business, like settlement conferences and special motions. The court will schedule Monday to Friday trials with appropriate notice.

The presiding court has received permission from Chief Justice Meagan Flynn to bring in senior judges for one-week assignments in Multnomah County. The senior judge in residence for the week may be assigned motions and settlement conferences and will be available to mentor new judges. Senior Judges Bloch, Kantor, Dailey, Tennyson, Bergstrom, Hodson, Walker, Litzenberger and LaBarre are participating. Three weeks of each month one of the judges will be available as a resource.

Chief Criminal Judge Cheryl Albrecht is sending letters to everyone in custody without representation regarding their status, with guidance for contacting presiding court if they have pro se motions. The court is seeing an increase in the number of unrepresented defendants who are out of custody but have now been waiting over a year for a lawyer. Some unrepresented parties are preparing their own motions for dismissal for lack of a speedy trial. The court is prioritizing timely motion settings for both in custody and out of custody defendants.

Legislative workgroups have included discussions with the Oregon Judicial Department regarding the lack of defense representation and work to resolve this crisis is ongoing.

Courthouse UpdateBarbara Marcille, Trial Court Administrator

The Oregon Judicial Department presented to the Ways and Means Committee the week of March 6. The hearings were live streamed for the public.

In March, the court tested a new concept for pre-trial first appearances with the goal of making the arraignment process more meaningful for the accused.

Felony arraignments were moved to the afternoon for all defendants in custody to allow more time for defense attorneys to confer with their clients beforehand. This was a two-week test. Data was collected and is being analyzed to determine how effective the test was, what refinements are needed, and whether there are changes which can be implemented in the near future.

Barb reported that a CourtSupport Founders plaque has been installed in the public area on the seventh floor. The plaque acknowledges the founding donors of the Multnomah Bar Foundation (MBF) CourtSupport program. CourtSupport provides the court navigator who staffs the information desk in the lobby to answer general questions and help connect the public with services within the courthouse. The MBF is planning a donor event to formally thank its CourtSupport founding donors.

The mask requirement at the Juvenile Justice Center was lifted effective March 1. This requirement was in place longer than at the main courthouse in consideration of the courtroom configurations, additional participants involved in juvenile hearings, and the older ventilation system at the Juvenile Justice Center. Wearing face masks is now optional although masks will continue to be provided by the court and available for anyone who wants one.