Law and You >Procedural Laws > Indian Evidence Act, 1872 > Leading Questions

The purpose of an examination-in-chief, i.e., questioning of the witness by the party who has called him, is to enable the witness to tell to the court by his own mouth the relevant facts of the case. A question should be put to him about the relevant facts and then he should be given the fullest freedom to answer the question out of the knowledge that he possesses. The witness should be left to tell the story in his own words. The answer should not be suggested. The question should not be so framed as to suggest the answer. Also, the question should not carry an inbuilt answer in it. Thus the questions should be open question expecting generalized answer. Any such question which suggests to the witness the answer which he is expected to make is known as a “leading question”. In this article, we shall discuss leading questions in the light of Evidence Act.

Leading questions are inquiries posed during the examination of a witness that suggest a particular answer or contain the information that the questioner is seeking. These questions are designed to guide the witness toward a specific response rather than allowing them to provide their own spontaneous testimony. Leading questions often contain presuppositions or assumptions about the facts, and they can shape the witness’s answers in a way that may be favourable to the questioner’s position. For example, a leading question might be: “You saw the defendant at the scene of the crime, didn’t you?” This question suggests to the witness that the defendant was indeed present at the scene, influencing the response. Leading questions can be useful for eliciting specific information or challenging witnesses during legal proceedings, their use must be carefully regulated to ensure fairness and accuracy in the presentation of evidence.

In legal contexts, leading questions are generally discouraged during direct examinations i.e. in examination in chief and re-examination, where a party calls its own witnesses, as they can potentially bias or manipulate the witness’s testimony. However, they are often permitted during cross-examination, when a party questions witnesses called by the opposing side, as they can be an effective tool for challenging the credibility or consistency of a witness’s testimony.

The expression “leading question” is defined in section 141. It says that any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

Where, for example, it is relevant to tell to the court as to where a witness lives, the question to be asked to him should be “where do you live”?, and then he may tell where he lives. If the question is framed like this “do you live in such and such place”, the witness will pick up the hint and simply answer “Yes”. This is a leading question. It puts the answer in the mouth of the witness and all that he has to do is to throw it back.

Essentials of Leading Question:

 The essentials of leading question under the law of evidence are as follows:

• A leading question is one that suggests a particular answer or puts words into the mouth of the witness. These questions often contain presuppositions or assumptions about the facts.
• Leading questions are often used to cross-examine hostile witnesses or to elicit specific information quickly. They are also used in examinations of witnesses who may be unable to provide spontaneous or coherent answers without guidance.
• While leading questions are generally disallowed during examination in chief, they are often permitted during cross-examination. However, the extent to which leading questions are allowed can vary depending on the jurisdiction and the judge’s discretion.
• Judges have discretion to allow or disallow leading question based on factors such as the witness’s competency, the nature of the testimony being elicited, and the overall fairness of the proceedings. Judges may intervene to prevent leading questions that are overly suggestive or prejudicial.
• There are situations where leading questions may be allowed even during direct examination, such as when dealing with young children, witnesses with cognitive impairments, or witnesses who are hostile or uncooperative.
• Leading questions should be relevant and material to the issues in the case. They should not be used to elicit irrelevant or prejudicial information.
• Opposite counsel may object to leading questions if they believe that they are improper or unfair. The objection is usually made by stating “objection, leading” or similar, and the judge will then decide whether to sustain or overrule the objection.

While leading questions can be a useful tool in certain circumstances, they must be used judiciously and in accordance with the rules of evidence to ensure fairness and reliability in legal proceedings.

Limitations on Leading Questions:

If leading questions were permitted in examination-in-chief, the lawyer questioning him would be able to construct through the mouth of the witness a story that suits his client. A fair trial of the accused is not possible if the prosecution can ask leading questions to a witness on a material part of his evidence against the accused. This would offend the right of the accused to a fair trial as enshrined in Article 21 of the Constitution.

Section 142 enjoins that leading questions should not be asked in examination-in-chief or in re-examination if they are objected to by the opposite party. In case the opposite party objects, the court can decide the matter and may in its discretion either permit a leading question or disallow it. The section also enjoins the court that it shall permit leading questions as to matters which are introductory or undisputed, or which have, in the opinion of the court, been already sufficiently proved. Under Section 143 IEA leading questions can always be asked in cross-examination.

The total effect of the provisions is that leading questions may be asked in the following cases:

• where they are not objected to by the opposite party;
• where the opposite party objects but the court overrules the objection;
• where they deal with matter of undisputed or introductory nature or
• leading questions may always be asked in cross – examinations.

Examples of Leading Questions:

Some examples of leading questions in interrogation scenarios:

• “You were at the scene of the crime, weren’t you?”
• “You saw the suspect leaving the building, correct?”
• “Isn’t it true that you had a motive to harm the victim?”
• “You admit that you were in possession of the stolen items, correct?”
• “You were angry with the victim, weren’t you?”
• “Wouldn’t you agree that your alibi seems weak?”
• “You were aware of the illegal activity, weren’t you?”
• “You’re not denying your involvement in the incident, are you?”
• “Wouldn’t it be fair to say that you had an altercation with the victim?”
• “You’re not telling me everything, are you?”

These questions are designed to steer the direction of the interrogation and elicit specific responses from the person being questioned. They often contain presuppositions or assumptions about the facts and are intended to guide the person toward confirming certain details or admitting to certain actions.

Usefulness of Leading Questions:

While leading questions are generally discouraged in witness testimony due to their potential to influence or manipulate responses, there are some situations where they may offer certain advantages:

• Clarity and Efficiency: Leading questions can sometimes help clarify testimony and elicit specific information more quickly. They can guide witnesses to focus on relevant details, which can be especially helpful in complex or lengthy trials.
• Challenging Witness Credibility: Leading questions can be effective in cross-examination to challenge the credibility or consistency of a witness’s testimony. By framing questions in a way that suggests contradictory or implausible scenarios, attorneys can highlight inconsistencies in the witness’s account.
• Control Over-Narrative: Leading questions can allow attorneys to control the narrative and shape the testimony in a manner that supports their case. By asking questions that suggest favorable facts or interpretations, attorneys can present a more persuasive argument to the judge or jury.
• Prompting Memory Recall: In some cases, leading questions may help prompt memory recall in witnesses who are struggling to remember specific details. By providing cues or suggestions, leading questions can trigger memories that might otherwise remain inaccessible.
• Clarifying Confusing Testimony: When witnesses provide vague or ambiguous testimony, leading questions can be used to clarify their statements and ensure that the record reflects accurate information. By providing specific prompts, attorneys can help witnesses articulate their experiences more clearly.

Despite these potential advantages, it’s important to exercise caution when using leading questions in witness testimony, as they can also undermine the credibility of the testimony and raise concerns about fairness and impartiality. Leading questions should be used sparingly and with careful consideration of their potential impact on the proceedings.

Disadvantages of Leading Questions:

While leading questions can sometimes be advantageous in certain contexts, they also come with several disadvantages, particularly in witness testimony:

• Bias and Manipulation: Leading question can bias or manipulate witnesses by suggesting a desired answer or shaping their responses in a particular direction. This can lead to inaccurate or unreliable testimony and undermine the search for truth in legal proceedings.
• Impaired Memory Recall: Leading question may interfere with witnesses’ ability to recall events accurately by providing them with suggestive cues or prompting them to fabricate details that align with the questioner’s expectations. This can result in distorted or false memories being presented as evidence.
• Unfair Influence: Leading question can exert undue influence on witnesses, particularly those who are vulnerable, impressionable, or susceptible to coercion. This can compromise the fairness and integrity of the legal process by coercing witnesses into providing testimony that may not reflect their true experiences or perceptions.
• Obfuscation of Facts: Leading question can obscure the facts of a case by steering witnesses away from relevant information or preventing them from fully articulating their experiences. This can impede the jury’s ability to assess the credibility and reliability of witness testimony and may hinder the pursuit of justice.
• Undermining Witness Confidence: Being subjected to leading questions can undermine witnesses’ confidence in their own memories and perceptions, leading them to doubt the accuracy of their testimony or retract their statements altogether. This can erode trust in the legal system and diminish the likelihood of obtaining truthful and reliable evidence.
• Prejudicial Effects: Leading questions may have prejudicial effects on the trier of fact (e.g., judge or jury) by framing the testimony in a manner that favours one party over the other. This can unfairly sway the outcome of the case and compromise the impartiality of the decision-making process.
• Ethical Concerns: The use of leading questions raises ethical concerns about fairness, transparency, and respect for witnesses’ rights. It may be perceived as an attempt to manipulate or control the narrative to achieve a particular outcome, rather than seeking to elicit objective and unbiased testimony.

While leading questions can sometimes offer strategic advantages in legal proceedings, their potential drawbacks and ethical implications necessitate careful consideration and restraint in their use. It’s essential for attorneys and interrogators to adhere to ethical standards and procedural rules to ensure the integrity and fairness of witness testimony.

Case Laws:

In Varkey Joseph v. State Of Kerela, AIR 1993 SC 1892 case, where it was argued that there is the infringement of Article 21 of the Constitution of India due to asking questions in a way that the witness can answer yes or no that enabling the witness to elicit such answers. The Supreme Court observed that Sections 143 and 154 provide the right to cross-examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein      the adverse     party is entitled to put leading questions but section       142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness by answering merely “yes” or “no”, but he shall be directed to give evidence which he witnessed.

In Barindra Kumar Ghose v. Emperor, (1910) ILR  37 CAL 467 case, it was held in the case that the court should be there to ensure the validity of a leading question whether it can be asked or not. The court must present to check the permissibility of the question. It is the court that determines the validity of the leading question not the hands of the council who is asking the leading question. The Court also held that Section 142 of the Evidence Act provides that leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the Court and it is the Court, and not counsel for the Crown, who can determine whether leading questions should be permitted, and the responsibility for that permission rests on the Court. 

Suggestions:

If you’re seeking suggestions on how leading questions could be addressed in the provisions of an evidence act, here are some considerations:

• Definition and Scope: Clearly define what constitutes a leading question within the evidence act. Provide examples and guidelines to help practitioners understand the concept and its implications for witness testimony.
• General Rule against Leading Questions: Establish a general rule against leading questions during direct examination, where a party is calling its own witnesses. This rule helps promote fairness, objectivity, and the elicitation of spontaneous and unbiased testimony.
• Exceptions and Permissible Uses: Specify circumstances where leading questions may be permitted or necessary, such as during cross-examination, when dealing with hostile witnesses, or when questioning young or vulnerable witnesses. Provide guidance on the appropriate scope and manner of using leading questions in these contexts.
• Judicial Discretion: Grant judges discretion to allow or disallow leading questions based on factors such as the witness’s competency, the nature of the testimony being elicited, and the overall fairness of the proceedings. Empower judges to intervene when leading questions are overly suggestive or prejudicial.
• Preservation of Objections: Preserve the right for parties to object to leading questions during testimony. Specify the grounds for objection, such as relevance, fairness, or compliance with procedural rules. Ensure that objections are duly noted and addressed by the court.
• Balancing Fairness and Efficiency: Strike a balance between the need for fairness and the efficient conduct of legal proceedings. While leading questions may sometimes expedite the examination process, prioritize the integrity and reliability of witness testimony to safeguard the rights of all parties involved.
• Education and Training: Provide education and training resources to legal professionals, including judges, attorneys, and court personnel, on the proper use of leading questions and the reasons for limiting their use in certain circumstances. Foster a culture of professionalism, competence, and ethical conduct in the administration of justice.
• Periodic Review and Amendment: Regularly review and update the provisions related to leading questions in the evidence act to ensure that they remain relevant, effective, and in line with evolving legal standards and best practices.

By incorporating these suggestions into the provisions of an evidence act, lawmakers can help promote fairness, transparency, and the pursuit of truth in legal proceedings while also addressing the practical realities and challenges faced by practitioners in the courtroom.

Conclusion:

Leading questions play a complex role in witness testimony within legal proceedings. While they can offer advantages such as clarity, efficiency, and the ability to challenge witness credibility, their use also comes with significant disadvantages.

The potential for bias, manipulation, and impaired memory recall raises concerns about the reliability and fairness of witness testimony. Leading questions can influence witnesses to provide inaccurate or distorted information, undermine confidence in the legal process, and compromise the pursuit of justice.

To address these challenges, it is essential to establish clear rules and guidelines within evidence acts regarding the use of leading questions. While permitting limited use in certain contexts, such as cross-examination or when dealing with hostile witnesses, safeguards must be in place to prevent abuse and ensure the integrity of the testimony. Judicial discretion, preservation of objections, and ongoing education and training for legal professionals are crucial aspects of managing the impact of leading questions on witness testimony. By balancing the need for efficiency with the imperative of fairness and accuracy, legal systems can uphold the rights of all parties involved and maintain public trust in the administration of justice.