Evidence — leading questions

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United States Court of Appeals For the Seventh Circuit

Criminal

Evidence — leading questions

Even though the prosecutor asked improper leading the questions, the error is harmless where the evidence of guilt is overwhelming.

“To one of the witnesses the prosecutor said: ‘You mentioned that he [Cephus] had a cord. Was he whipping her with the cord?’ She answered ‘yes.’ Since whipping a person is unusual, the question would be unlikely to be asked unless an affirmative answer was expected. The question may also have been loaded (a loaded question is a question that contains an assertion, the classic example being ‘When did you stop beating your grandmother?’), as it might have been understood to mean: ‘Was he whipping her with a cord or something else?’ Instead of mentioning whipping the prosecutor should just have asked her what she had seen Cephus doing with the cord.”

“The prosecutor asked other inappropriate leading questions, and sustaining objections to questions is probably not a very effective way of pulling their sting, because jurors can guess the answer that the interrogating lawyer expects to a leading question—that’s the nature of such a question. But the leading questions in this case could not have affected the verdict of a reasonable jury, given the overwhelming evidence of the defendants’ guilt.”

Affirmed in part, and Remanded in part.

10-3838, 10-3840 & 11-1098 U.S. v. Cephus

Appeals from the United States District Court for the Northern District of Indiana, Lozano, J., Posner, J.