Report No. 69

Chapter 79

Leading Questions

Sections 141 to 143

79.1. Introductory.-

Besides regulating the content of the inquiry and the order of examination of witnesses, our system of trial regulates the method of inquiry. It requires that the parties proceed by question and answer-and they must also adhere to certain forms of questions. And the restrictions as to the nature of questions are far more severe on the side that has called the witness to the stand than on the adverse side. The examination of one's own witnesses must be made without the use of leading questions, that is-questions which suggest their own answers. Such questioning may often lead to injustice, at the hand of the side calling the witness.

A typical leading questions is, "was the defendant's black car going about fifty miles an hour when you first saw it on the right, bearing down on you?" The witness may answer 'Yes', but it is the questioner's version of the story that the court hears. This consideration has led to an important point which marks the difference between examination-in-chief and cross-examination-the permissibility of leading questions in the latter, and their impermissibility in the former.

79.2. Sections 141 to 143.-

There are three sections in the Act dealing with leading questions-sections 141 to 143. Under section 141, any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question. Section 142 provides that leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. Under section 143, leading questions are permitted in cross-examination.

79.3. Rationale.-

The principal reason why leading questions in examination or re-examination are generally improper is that the witness is presumed to be biased in favour of the party examining him and might thus be prompted. In cross-examination, as the reason generally ceases, so does the rule.1

1. Woodroffe.

79.4. A question is leading when, by its substance or from, it suggests a desired answer, or, as some of the cases say, "when it puts the thoughts or words in the mouth of the witness to be echoed back". If a question is made up of an unqualified statement of an assumed fact, either unproved or contested followed up by an interrogation as to that fact, it is almost necessarily leading and objectionable. A question which purports to state a fact, and then suggests an interpretation of that fact, is leading A question which incorporates a reference to an unproved or disputed fact, and suggests an affirmative answer, is leading. A similar question which suggests a negative answer is likewise objectionable.

79.5. A question is not necessarily leading merely because it calls for a categorical answer, if it is so worded as not to indicate the answer desired. Some times, a compound question, if free from suggestion, is not leading; such, for example, as, "State whether or not there was any conversation between you at that time, and, if so what it was". Similarly, a question put in the alternative, as, for example, "Was he or was he not running at the time?" Is not necessarily leading.

79.6. Definition by Stephen.-

Stephen1 defined a leading question as one which either suggests the answer to that question or suggests the existence of disputed facts as to which the witness is to testify. The definition in the Act, quoted above (section 141), is briefer, but it substantially brings out the essence, the essence being the tendency of the question to "lead" the witness to the expected answer.

1. Stephen Digest of Law of Evidence, Article 140.

79.7. What are leading questions?-Bentham's view.-

"A question", says Bentham1, "is a leading one, when it indicates to the witness the real or supposed fact which the examiner expects and desires to have confirmed by the answer. Is not your name so and so? Do you reside in such a place? Are you not in the service of such and such a person? Have you not lived so many years with him? It is clear that under this form every sort of information may be conveyed to the witness in disguise:

"It may be used to prepare him to give the desired answers to the questions about to be put to him: the examiner while he pretends ignorance and is asking for information, is, in reality, giving instead of receiving it.2

"Thus also, a witness called to prove that A stole a watch from B's shop must not be asked, "Did you see A enter B's shop and take a watch?" The proper inquiry is, what he saw A do at the time and place in question; "A question shall not be so propounded to a witness as to indicate the answer desired".

1. Bentham Rationale of Judicial Evidence, cited in Woodroffe.

2. U.S. v. Dickinson, 2 McLean 331 (Amer), (McLean, J.), cited in Sarkar.

79.8. Test of affirmative or negative answer.-

It is usually stated-following Lord Ellenborough.-that if questions are asked to which the answer "Yes" or "No" would be conclusive, then those questions would certainly be objectionable. The matter, however, is not so simple. As has been pointed out by Cross,2 if the question "Did you notice any traffic" is put, the answer "Yes" or "No" would be conclusive; but the question should not be regarded as a leading question if it is put to a witness who had just said that he was standing on the side of the road. Much, therefore, depends on what the point at issue is, and how the question is related to it. That is why Best said that "leading" is a relative and not an absolute term.

It has often been declared3 that a question is objectionable as leading which embodies a material fact and admits of answer by a simple affirmative or negative. While it is true that a question which may be answered by "Yes" or "No" is generally leading, it is not always so, as we have pointed out. There may be such questions which in no way suggest the answer desired, and to which there is no real objection. On the other hand, leading questions are by no means limited to those which may be answered by "Yes" or "No". A question proposed to a witness in the form "whether or not", that is, in the alternative, is not necessarily leading. But it may be so, when proposed in that form, if it is so framed as to suggest to the witness the answer desired.4

Cornish, C.J., in Audibert v. Michaud, 119 Ms 295: 111 Atl 305, (American case) cited by Field, observed-

"A question is not necessarily leading because it can be answered by "Yes" or "No". The presiding justice, who has an unprejudiced view of the entire situation, is allowed a wide discretion in this respect. The legitimate object of all examination of witnesses is the eliciting of the truth; and the danger which arises from so-called leading questions is not that the truth may thereby be extracted in an untechnical manner, but that the untrue may be stated by a witness, who is either indifferent to his oath or over-zealous in the cause and eager to adopt any suggestion made by the attorney although not in accordance with the fact. It is not the mere leading, but the leading into temptation, that is to be deprecated and avoided."

1. Nichollas v. Dowding and Kemp, (1855) 1 Stark 81.

2. Cross Evidence, (1974), p. 200.

3. See Taylor Evidence, section 1401; Greenleaf Evidence, section 434, cited in Woodroffe.

4. Burr.-Jones Evidence, section 815; Best Evidence, section 641, cited in Woodroffe.

79.9. Leading questions when permissible.-

Notwithstanding the general rule that an examiner-in-chief cannot ask leading questions, an exception has been made in the interests of justice. Leading questions are often an indispensable prelude to further interrogation-which is the reason why, in many situations, the prohibition against leading questions in examination-in-chief is dispensed with. Chief amongst these situations are those relating to questions concerning introductory or undisputed matters, questions of identity, and questions which are designed to bring a witness to the point.

In addition, where the matter has been sufficiently proved and it is intended to call a particular witness to confirm the evidence already given or-to take the converse case-where a matter has been vouched for by one witness and it is intended to call another witness to contradict it, the witness now called can be asked a leading question without much objection. For example,1 if a witness is allowed to remain in court while a previous witness has given evidence about the contents of a letter, he may be asked leading questions as to the letter. When the time comes for the second witness to give his evidence in chief, he says, that he wrote the letter; he can then be asked whether the letter contained a particular passage.

Similarly, where a previous statement made by a person is tendered by witness A, and witness B was present when the previous statement was made, witness B may be asked the formal question whether the statement tendered is of witness A. In these cases, there is a reasonable basis for dispensing with the prohibition against leading questions in examination-in chief, either because the reasons why leading questions are disallowed do not operate with full force or because the asking of leading questions would not cause prejudice in the particular situation.

1. Courteen v. Touse, (1807) 1 Camp 40.

79.10. Cross-examination.-

While leading questions are, under section 143, permissible in cross-examination, yet, even in cross-examination, those which assume the existence of any disputed facts might well be disallowed in the interests of justice. The cross-examiner would then not be "leading" the witness, but misleading him.

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