testifying in the presence of the defendant; ( 2) the witness cannot testify for medical reasons; or
( 3) the witness will not fully understand what it means to be under oath.118 Based on the Supreme
Court’s decision in Maryland v. Craig, the emotional distress must be more than would normally
be expected of a child in similar circumstances, so much that “such trauma would impair the child’s
ability to communicate.”119
D. Leading Questions
The wording of questions and the manner in which they are asked can influence answers
and memories relating to an experience.120 Research shows that witnesses who view the same
incident but are asked questions with different wording have significantly different answers about
what actually occurred.121 Leading questions suggest a desired answer. These types of questions
can also result in false memories or participants recalling an event that never really occurred.122 A
child’s susceptibility to leading questions and information may vary depending on the age of the
child and the type of abusive incident to which they were victim.123
Generally, leading questions are only allowed during cross-examination or when “a party
calls an adverse witness.”124. Despite research on the effects of leading questions, their use during
children’s testimony can have positive effects so long as the court is cautious that such questioning
does not become overly negative toward the defendant or overly suggestive.125 This may result in
the child becoming confused or agreeing with false statements. Questions should not be worded
negatively, nor should they include questions and details that the child has not previously
In Antelope v. United States,127 Woodrow Antelope was charged and sentenced with
statutory rape of a thirteen-year-old American Indian girl.128 Antelope appealed on three grounds,
one of which was that the prosecutor was allowed to use leading questions during the victim’s
testimony.129 The Supreme Court held that it was necessary to use leading questions to obtain the
facts needed for the girl’s testimony due to certain circumstances surrounding the victim, such as
unfamiliarity with her surroundings, her age, and her own timidity.130
More recently, leading questions were permitted in U.S. v. Carey.131 Carey, a twenty-nine-year-old male, was living with his girlfriend and her children, one of whom was an eleven-year-old girl.132 Carey sexually assaulted the young girl on four separate occasions.133 He was charged
118IND. CODE ANN. §35-37- 4-6 (West 2015) (Pertaining to the admissibility of a statement made by the child out of
court or a video-tape of the child’s statement).
119Maryland v. Craig, 497 U.S. 836, 857 (1990).
120Elizabeth F. Loftus, Leading Questions and the Eyewitness Report, 7 COGNITIVE PSYCHOL., 560 (1975).
121Id. at 569.
122Id. at 566.
123Saywitz et al., supra note 4, at 354.
124FED. R. EVID. 611(c).
125Saywitz et al., supra note 4, at 353.
127Antelope v. United States, 185 F.2d 174 (1950).
128Id. at 175.
131United States v. Carey, 589 F.3d 187 (5th Cir. 2009) (Involving the issue of whether a state can show past testimony
to victim during deposition, not leading questions).
132Id. at 189.
133Id. at 191.