Frantom v. State No. 52007-9-II (April 2, 2020)

Issue: (1) Does ER 611(c) allow leading question on direct examination of an adverse party? YES. (2) Is a separate motion to declare the adverse party as hostile required? NO. (3) Does ER 611(c) always permit the use of leading questions on cross-examination? NO.

Facts: At trial, Frantom called a defendant as a witness in his case-in-chief. Early in the direct examination of the witness, the defense objected to a leading question posed. The trial court sustained the objection, explaining that a party can never use leading questions in direct examination. Frantom argued that the witness was an adverse party and therefore leading questions were allowed pursuant to ER 611(c). The trial court then suggested that leading questions may sometimes be allowed on direct examination if a motion is made to treat the witness as hostile. Frantom made the motion, but it was denied. The trial court disagreed noting that Frantom failed to bring a motion to treat the witness as an adverse witness and leading questions were categorically disallowed on direct examination. Frantom did not otherwise make an offer of proof to articulate that there was testimony he would have elicited with leading questions.

During the defense’s cross examination of the witness during plaintiff’s case-in-chief, Frantom objected twice to leading questions. The trial court overruled the objections noting that leading questions were permitted because it was cross-examination, even though the questions were not actually leading. Frantom appealed and argued that the trial court erred when it made certain evidentiary rulings that he contended violated ER 611(c).

Holding: The trial court erred when it ruled that Frantom could not leading question on direct examination of an adverse party. Furthermore, no motion is required to ask leading questions of an adverse witness during direct examination. Nonetheless, the Court of Appeals found that this error was harmless because Frantom failed to articular actual harm since Frantom was able to call the witness later in the trial when he was called as a defense witness.

Additionally, the Court of Appeals ruled that ER 611(c) indicates that counsel cannot use leading questions to examine a party that counsel represents unless the trial court finds there is a specific reasons to permit leading questions. Nevertheless, Plaintiff failed to preserve this issue because the questions objected to during the witness’s cross-examination were not leading.

Discussion: ER 611(c) provides that if a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be leading. ER 611(c) does not require that party seeking to ask leading questions of an adverse party move to declare the witness hostile. In analyzing ER 611(c) regarding leading questions during “friendly cross-examination,” the court noted that ER 611(c) states “ordinarily leading questions should be permitted on crossexamination.” This was interpreted to mean that trial courts are not always required to permit leading questions on cross-examination. The Court concluded that read in context, ER 611(c) plainly contemplates that leading questions will typically be used with hostile of adverse witnesses.

Briefing by Charissa Williams, an Associate Attorney in HWS Law Group LLP’s Seattle
Of ice. Charissa is licensed to practice in Washington and Oregon.