12 Children’s Legal Rights Journal [Vol. 36: 1 2016]
with four counts of aggravated sexual abuse with a minor younger than twelve and was sentenced
to four terms of life imprisonment, a life term of supervised release, and a fine.134 Carey appealed
on three separate issues, one being the prosecutor’s use of leading questions during the victim’s
testimony.135 During the trial, the defense objected to multiple leading questions, but these were
overruled. The Court of Appeals agreed with the use of leading questions for a child victim who
was “reluctant,” “nervous,” and “upset” during questioning, citing Rotolo v. United States, in
which the Court held that a leading questions were permissible during the testimony of a nervous
fifteen-year old girl who was transported across state lines for purposes of prostitution.136
States vary on their provisions regarding leading questions. Twenty-one states address
leading questions in official state statutes, with six states137 utilizing case law only, as seen in Table
5 of the appendix. Age is a factor in the allowance of leading questions for two states (Alabama138
and California139) where only children under the age of ten may be asked leading questions. The
other eighteen states either directly reflect Rule 611 of the Federal Code or have more detailed
versions of the Federal Code.140
Six states use case law from their Supreme Courts. The cases will be discussed in some
detail to examine language differences in court opinions. In the Arizona case of State v. Godsoe,141
a defendant was convicted and charged with child molestation. During the trial, the prosecutor
used leading questions to direct the testimony of the nine-year-old victim.142 On appeal, the
Supreme Court of Arizona held that leading questions are allowed “where the delicate nature of
the subject matter prevents detailed answers to general questions,” noting that testimony elicited
135Id. at 190.
136Rotolo v. United States, 404 F. 2d 316, 317 (5th Cir. 1968). On appeal, the defendant argued that leading questions
were allowed during the testimony of the case’s fifteen-year-old victim. Id. The Court of Appeals determined that this
style of questioning was permissible due to the victim being nervous and upset at the time of questioning. Id.
137See Arizona (State v. Godsoe, 489P.2d 4 (Ariz. 1971)) (Allowing leading questions of a nine-year-old alleged victim
of sexual abuse. Id. at 371); Arkansas (Clark v. State, 870 S.W.2d 372 (Ark. 1994)) (Allowing the prosecution to
repeatedly use leading questions during examination of two alleged sexual abuse victims, ages four and five, based
on the embarrassment of the subject matter, fear of the court environment, seriousness of the crime, and necessity of
testimony, among other reasons . Id. at 376.); Colorado (Warren v. People, 213 P.2d 381 (Co. 1949)) (Allowing the
use of leading questions during the testimony of a ten-year-old sexual abuse victim due to the age of the witness and
the personal nature of the crime. Id. at 384.); Florida (Anderson v. State, 101 So. 202, 202 (Fla. 1924)) (Finding that
the court did not abuse its discretion by allowing the prosecution to use leading questions in a murder trial. Id. at 94.);
Illinois (People v. Ridgeway, 551 N.E.2d 790, 792 (Ill. App. 1990)) (Allowing leading questions of seven-year-old
victim of sexual abuse and his brother due to the victim’s refusal to use anatomically correct and specific terms in
recounting the abusive incident. Id. at 885.); and Rhode Island (State v. Brown, 574 A.2d 745 (R.I. 1990)) (Allowing
leading questions during the testimony of a sixteen-year-old victim of sexual abuse to assist her in remembering
multiple abusive incidents over a nine year period. Id. at 784.)
138ALA. CODE § 15-25-1 (West 2015).
139CAL. EVID. CODE § 767 (West 2015) (permitting leading questions for under age ten if it complies with “the interests
140Connecticut (CONN. GEN. STAT. ANN. §
6-8 (2015)); Delaware (DEL. R. EVID. 611); District of Columbia (D.C. R.
43); Hawaii (HAW. REV. STAT. § 626-1 (West 2015)); Indiana (IND. R. EVID. 611); Iowa (IOWA R. EVID.
611); Louisiana (LA. CODE EVID. ANN. art. 611 (2015)); Maine (ME. R. EVID. 611); Michigan (MICH. R. EVID. 611);
Mississippi (MISS. R. EVID. 611); Montana (MONT. R. EVID. 611); Nebraska (NEB. REV. STAT. ANN. § 27-611 (West
2015)); Nevada (NEV. REV. STAT. ANN. §
50.115 (West 2015)); North Carolina (N.C. R. EVID. 611); Oregon (OR.
REV. STAT. ANN. §
40.370 (West 2015)); South Carolina (S.C. R. EVID. 611); South Dakota (S.D. CODIFIED LAWS §
19-14-20 (2015)); and Utah (UTAH R. EVID. 611).
141State v. Godsoe, 489 P.2d 4 (Ariz. 1971).
142Id. at 370-71.