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Published : December 12, 2010 | Author : prachishah
Category : Criminal law | Total Views : 8424 | Unrated

  
prachishah

 

Leading Questions

Grissom - I tend not to believe people. People lie. The evidence doesn't lie.

The entire corpus juris (body of laws) is broadly classified into 2 categories, i) substantive laws, and ii) adjective laws. Substantive laws are those, which define the rights, duties and liabilities, the ascertainment of which is the purpose of every judicial enquiry. Adjective laws are those, which define the pleading and procedure by which substantive laws are applied in practice. The Indian Evidence Act is the adjective law, steps in for the enforcement of the substantive law. The rules regarding evidence in the administration of justice are of high importance. No substantive law can be enforced without the help of the rules of law of evidence. The law of evidence can be stated to be the foundation on which the entire structure of judiciary is based. If the foundation is weak the structure is bound to collapse. Similarly, if the rules of law of evidence are not sound the administration of justice is bound to go astray.[1]

Leading questions are questions which are framed in a way which evokes a specific response from the individual being questioned. Issues about leading questions can come up in journalistic interviews, court rooms, and surveys, and in some cases, the use of such questions is viewed as a branch of ethics and professionalism. Leading questions may also be used in a more casual setting, such as a conversation between friends, relatives, or coworkers. In a leading question, the questioner uses language which suggests a particular answer.

For example, instead of asking a witness on the stand “where were you on the night of December 20th, 1967,” the questioner would say: “you were driving to Maine on the night of December 20th, 1967, were you not?” The difference between these two examples is quite clear. The first question is open ended, while the second is closed, requiring only a yes or no answer.[2]

Many leading questions are framed as yes or no questions, with the subject of the questions essentially being coached into a specific answer. Others may be open ended, but framed in a way which embeds the information that the questioner wishes to elicit. Yes or no questions are not always leading, but they often are, so they should be constructed carefully. In a court room, the use of leading questions is frowned upon, because people believe that they compromise the witness and potentially taint the evidence which he or she provides. These types of questions are usually only allowed in very specific situations, such as providing establishing biographical information from a witness when he or she first arrives on the stand.

In surveys, leading questions can be very dangerous, because they can be formulated in a way which slants results, and the same holds true for leading questions used in media interviews. Some leading questions are assumptive, meaning that the questioner makes an assumption in the process of asking the questions. Others use implications, and some are coercive, designed to strongly suggest the preferred answer.

Leading questions can also create false links in the mind of the witness. Some psychological studies have shown that using leading questions can actually result in the implantation of false memories. Questions that call for a narrative answer are more or less the opposite of leading questions. Questions that call for a narrative often produce long speeches that can waste the time of the court and the parties. These kinds of questions are very unpopular with courts and should be avoided. During cross-examination, attorneys may only ask about subjects that were raised upon the direct examination of the witness, including credibility. If cross-examiners stray into a new topical area, the judge may permit them to do so in the interest of time or efficiency, but harassment of the witness is not permitted under any circumstances.[3]

Leading Question Defined Under The Indian Evidence Act
Section 141 Leading Questions[4]: - Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

The purpose of an examination in chief, that is, questioning of the witness by the party who has called him, 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 he possesses. The answer should not be suggested. The question should not be framed as to suggest the answer also. The question should not carry an inbuilt answer in it. Any such question which suggests to the witness the answer which he is expected to make is known as a ‘leading question’.

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” or “no”. 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.[5]

Various definitions given English jurists[6]:-
1) According to Stephen, “A leading question is one which either (a)suggests the answer desired, or (b) assumes the existence of disputed facts as to which the witness is to testify.”

2) According to Bell, “A question is leading where the question assumes any fact which is in controversy, so that the answer may really or apparently admit that fact.”

3) According to Lord Ellen-Borough, “A leading question is a question framed in such a manner that it throws a hint as to, or suggests directly or indirectly, the answer which the examiner desires to elicit from the witness.”

4) According to Bentham, “A leading question 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.”

Leading questions are asked to make the witness acquaintance and to remove the fear or apprehension etc. from the mind of the witness. It is just like inducing a small child by a guest with little words, to enhance the acquaintance. The object of putting leading questions to a witness is to revive or refresh his memory by drawing his attention to a particular topic, without suggesting any answer.[7]

Illustration:-
(a) You were at Duffy's bar on the night of July 15, weren't you?

It suggests that the witness was at Duffy's bar on the night in question. The same question in a non-leading form would be:

(b) Where were you on the night of July 15?
This form of question does not suggest to the witness the answer the examiner hopes to elicit.

Sections Relevant To Leading Questions
Section 142:- When they must not be asked
Section 143:- When they may be asked
Section 146:- Questions lawful in cross-examination
Section 147:- When witnesses to be compelled to answer
Section 148:- Court to decide when question shall be asked and when witness compelled

Authors contact info - articles The  author can be reached at: prachishah@legalserviceinida.com

to answer.

Section 149:- Question not to be asked without reasonable grounds
Section 150:- Procedure of Court in case of question being asked without reasonable

grounds.

Section 151:- Indecent and scandalous questions
Section 152:- Questions intended to insult or annoy
Section 142 When they must not be asked[8]: - 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.

The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion, been already sufficiently proved.

Section 142 enjoins that the 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.[9]

In Varkey Joseph v. State of Kerela[10], the Supreme Court held that the prosecutor ought not to be allowed to frame questions in such a manner, which the witness may answer in ‘yes’ or ‘no’ so as to enable him to elicit such answers, which he expects or desires. It also held that allowing such leading questions would offend the right of the accused to fair trial enshrined in Article 21 of the Constitution of India.

Section 143 When they may be asked[11]: - Leading questions may be asked in cross-examination

A leading question can be put in the examination-in-chief or re-examination with the permission of the court. The court shall permit leading questions to be asked in the examination-in-chief or re-examination in respect of matters which are of introductory or undisputed nature or which matters in the opinion of the court have already been sufficiently proved. It can be asked where it is not objected to by the adverse party. A leading question may also be put when the adverse party objects to it, but the court over rules the objection, if it is in the opinion of the court that question pertains to matters which are introductory or undisputed or which have been sufficiently proved.[12]

In Barindra v. R[13], it was held that the court has to determine, and not the counsel, whether a leading question should be permitted and the responsibility for the permission rests with the court.

The section always permit leading questions being put in cross-examination, the reason is that the object of cross-examination is to test the veracity and credibility of witnesses and to expose any inaccuracy that exists in the testimony of the witnesses.[14] It is so because the party which calls the witness always tells him the facts in advance, which the witness is likely to oust in the court. As a result the witness would remain hostile to the cause of the adverse party cross-examining him and will be biased in favour of the party calling him.[15] Section 146 Questions lawful in cross-examination[16]: - When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend:

1) to test his veracity.
2) to discover who is and what is his position in life
3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:

(Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character)[17]

Questions are allowed to test the veracity of the witness in regard to his honesty so as to convince the court to what extent the witness is reliable and credit worthy. This section also allows to ascertain the identity of the witness and the position he holds in life. The purpose of such questions is to establish whether the witness is an honest witness or a professional witness giving evidence for money. The character of a witness is attacked through questions in order to shake his credit thus exposing his respectability.[18]

Section 147 When witness to be compelled to answer[19]: - If any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132[20] shall apply thereto.

Phipson says, “A witness is compellable to answer every question put to him in cross-examination which is relevant to the issue, unless protected by public policy, or privilege, or unless the case is one in which oral evidence is excluded by documentary. All cross-examination must be relevant to the issue or to the witness’s credit.”[21]

Section 147 supplements the provision in section 146 by providing that if the question put to the witness relates to a relevant fact the provisions of section 132 will apply. Section 132, provides that if the question relates to a relevant fact, the witness shall be bound to answer the question and cannot be excused from the answering it only on the ground that the answer will expose him to some civil or criminal liability.[22] But whatever answer the witness shall be compelled to give shall not be used against him as evidence, except that if the answer is false the witness may be prosecuted for giving false evidence.[23]

Illustration: - A public servant appearing as a witness is asked whether it is not true that he is in regular habit of receiving bribes. The purpose of this question is only to shake the credit of the witness and to impeach his credibility. The witness however is not excused from answering the question, which injures his character. But if the witness answers the question in the affirmative manner admitting the allegation contained in the question the answer cannot be used for the purpose of subjecting him to an arrest or to use the same in evidence in any suit or proceeding.[24]

Section 148 Court to decide when question shall be asked and when witness compelled to answer[25]: - If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretions the Court shall have regard to the following considerations:

1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;

2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matters to which he testifies;

3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;

4) The Court may, if it sees fit, draw from the witness’s refusal to answer, the inference that the answer if given would be unfavorable.

Sections 148-152 are intended to protect a witness against improper cross-examination-a protection which is often very much required. The object of Section 148 is to prevent the unnecessary raking up of the past history of a witness, when it throws no light what so ever on the questions at issue in a case. It protects a witness from the evils of a reckless and unjustifiable cross-examination under the guise of impeaching his credit.[26]

Section 149 Question not to be asked without reasonable grounds[27]: -No such question as is referred to in Section 148 ought to be asked; unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.

Illustration[28]:-
1) A barrister is instructed by an attorney or vakil that an important witness is a dacoit. This is a reasonable ground for asking the witness whether he is a dacoit.

2) A pleader is informed by a person in Court that an important witness is a dacoit. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is dacoit.

3) A witness, of whom nothing whatever is known, is asked at random whether he is dacoit. There are no reasonable grounds for the question.

4) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be reasonable ground for asking him if he is a dacoit.

The illustration appended to the section drive home the lesson of the section. If nothing whatsoever is known about a witness and he is abruptly asked the question whether he is dacoit. The question is not well founded. But if the witness is asked to explain the means of his livelihood and he gives unsatisfactory answers, he may then be asked whether he is living on dacoity. The question will be well founded. Similarly, where the lawyer carrying on a cross-examination is informed by a reliable source that an important witness is a dacoit, this is a good reason for asking the question to the witness.[29]

In Prakash v. State of Maharashtra[30], it has been held that no scandalous question should be put unless there are reasonable grounds to believe them to be true.

Section 150 Procedure of Court in case of question being asked without reasonable grounds[31]: - If the Court is of the opinion that any such question was asked without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister, pleader vakil or attorney is subject in the exercise of his profession.

Section 150 is the penalty that may ensue against a reckless cross-examination, if the court is of opinion that the questions were asked without reasonable grounds.[32]

Section 150 provides the procedure to be followed by the court in regard to the advocate in cases where questions are asked by him without reasonable grounds. The court may report to the High Court or to the Bar Council of the State, in which such an advocate enrolled his name. The court can consider the questions without reasonable grounds as contempt of court and/or professional misconduct.[33]

The object of section 149-152of the Evidence Act is to lay down, in the most distinct manner, the duty of counsel of all grades in examining witnesses with a view to shaking their credit by damaging their character. The court may disallow cross-examination used simply to oppress and not for the purposes of justice.[34]

Section 151 Indecent and scandalous questions[35]: - The court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Section 151 of the Evidence Act invests a court with power or discretion to forbid questions. The trial judge is not mere automation but is supposed intelligently to control the conduct of the cases in the court and it is one of his important functions to see that scandalous matters are not introduced in the record unless they are relevant for the proper decision of the case.[36]

In Mohinder Singh v. State[37], it was held that a trial judge shall not permit questions which are scandalous, vexatious or even those cantankerous, which elicit irrelevant or inadmissible answers, or even those which do not advance the trial, but are calculated to hinder or delay in progress.

The purpose of cross examining the victim of rape is not to humiliate her but to get to the truth of the matter and consequently questions which have no real relevance to the issues before the court and which are apparently directed to cause discomfiture, if not humiliation, to a victim of sexual offences should not be permitted, as such they do not serve the ends of justice.[38]

Questions touching upon a witness moral character should not be put to him/her in cross-examination, without any material to substantiate the suggestions.[39]

Section 152 Questions intended to insult or annoy[40]: -The court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court needlessly offensive in form

Under Section 151, the court cannot forbid indecent and scandalous questions if they relate to the facts in issue. But under Section 152, though it appears to the court that the question is proper in itself, but if it is offensive in form, the court shall have to forbid it.[41]

The term ‘to annoy’ means to ruffle, trouble, vex. The word ‘insult’ means affront, scornful abuse, a gross indignity offered to another whether by act or by word; to offer indignity to someone. ‘To insult’, says Webster, ‘to treat with abuse, insolence, or contempt; to commit an indignity upon, as to call a man a liar’. Insult excludes politeness. There never can be a justification of insult.[42]

In Fatima Riswana v. State[43], where concerning commission of offences to acts or pornographic material, evidences as to the subject-matter of which could cause embarrassment not only to the presiding officer, both male and female, but also to the lady witnesses/accused as well as to any decent persons the Supreme Court held that presiding officer could make adjustments or arrangements in the procedure so as to minimize embarrassment to himself or herself and the witness.

Advantages Of Asking Leading Questions
The advantages of leading questions are as follows[44]:-
1) To Conserve Time: Time is precious, and more so in the modern world. However, once there is a debate or discussion even on the most trivial subject, no amount of time might suffice to arrive at useful conclusions. Once a certain amount of time is expended, the opponent might be able to escape defeat by appealing to the busy schedule and his need to go. Thus in spite of all the energy spent, the apologist might have to go home without coming to the real issues. At the same time, this incompleteness might give a false sense of pride to the opponent to truth who feels that by not losing the debate he has won his case. Thus some strategy to conserve time by eliminating unnecessary discussion is essential. Leading Questions play a very important part here by separating the significant from the trivial and the useless.

2) To Lead Into A Definite Direction: As said before, though all interrogation involves asking questions, not all such interrogation leads into a definite direction. Leading involves aiming at a goal and then asking questions in a manner to lead the respondent into that definite direction. This can be achieved only if the general and aimless questioning is abandoned and leading questions asked.

3) To Get To The Root Of The Problem: A logical analysis of statements, cause and effect, deductions, and other ways of reasoning often uncovers many hidden assumptions. Further, often the issues involved are so complex that the discussion goes on without ever touching the root of the problem. Only leading questions can expose the hidden assumptions and the root cause of the problem being discussed. Often the discussion might prolong for hours without actually discussing the root problem. Only the appropriate questions planted at the appropriate time can lead people to address the real issues.

4) To Convince The Respondent: Often the person responding the apologist is not convinced of truth, or is not willing to see the truth. Affirmations made by the apologist do not create much impact because the logical thinking and reasoning has passed only through the apologist's mind. Often the issues involved are so complex, that the opponent is unable to see it unless he is forced to go step by step through his process of reasoning and deduction. At other times the willingness of the respondent is so opposed to discovering truth, he does not come to the right deduction unless he forced to reason step by step. Only leading questions can help the apologist to force the opponent to go through the steps needed to arrive at truth.

Problems Created By Asking Leading Questions
When questioning another person, there are many traps for that person which can lead him into deep water[45]. Here are a few of the problems created while asking leading questions. Sometimes, negativity in questions turns the other person off. Even accidental use of negative words can lead them to feel negative and consequently unwilling to answer further questions.

What problems have you had recently?

For example, if the word 'problem' could tip the other person into thinking negatively, you might use words such as: difficulty, challenge, complaint, obstacle, hassle, etc. or otherwise phrase the question to help the person answer honestly.

What keeps you awake at night?[46]
Today the advocates have become so clever, that in order to get their questions answered, they frame it in such a way, that the witness finds difficulty in answering it. The witness cannot answer either ‘yes’ or ‘no’ because if he answers then he is likely to get trapped and thus he fears of answering it.

Another quagmire is that, the advocates enter into an area which the witness feels is private and where he is not really welcomed. In simple terms, to win the case, they can frame any question without thinking about the witness and his privacy.

Inexperienced lawyers often run into problems during leading questions. First, they tend to underestimate the time it will take to ask the question. Thus time is wasted.

A second problem, and much more serious, is that the young lawyer will often not have a clear idea of what they are trying to accomplish in the question. It often helps to consider if you are: (1) trying to just gather information; (2) getting specific admissions of key facts; or (3) preserving testimony for later use at trial. It also tends to confuse the witness and thus appropriate answer is not obtained.

Third, lawyers sometimes use an inadequate method of questioning the witness. How you ask questions depends on what you are trying to accomplish. If you are trying to simply find out things then asking informal, open-ended questions is best. If you are trying to pin the witness down then use leading questions. And if you are trying to preserve testimony then use the exact method that you would use in trial, which is likely a methodical approach that takes into account evidentiary issues.

Thus above are the problems created while asking leading questions which many a times leads to chaos.

Conclusion & Suggestions
The Act has very clearly defined leading questions, but looking at present day’s condition, leading questions should be first of all asked by experienced lawyer so that time is not wasted. Privacy of the witness should be the first priority. Scandalous questions should be discarded and questions which insult or annoy the witness should be kept aside. The questions which are asked should be in context to the facts relevant to the case and not beyond it. Leading questions can only be asked during cross-examination and not during examination-in-chief or re-examination unless and until the court allows. Also indecent, insulting questions should not be asked to witness but Section 151 says that even though the questions are scandalous, the witness has to answer it, if it is relevant to the fact in issue. This section should be amended because if such questions are asked; it is obvious that fear will be created in the mind of the witness and thus he may tend to give wrong answer or information which ultimately is a downfall for the case.
--------------------------------------------------------------------------------
[1] V.K.rishnamachari, Law of Evidence, (Hyderabad:S. Gogia &Company),6th Edition, p1-2.
[2] Available at, http://www.wikipedia.com//leading questions.html, visited on October 9.2010.
[3] Supra note 2.
[4] Supra note 1 at p.628.
[5] Avtar Singh, Principles of The Law of Evidence, 16th Edition, Central Law Publications, p532.
[6] S.R.Myneni, The Law of Evidence,(Hyderabad: Asia Law House),1st Edition,p681.
[7] Supra note 6 at p.682.
[8] Supra note 1 at p.628.
[9] Supra note 5.
[10] AIR 1993 SC 1892.
[11] Supra note 4.
[12] Supra note 1 at p.629-630.
[13] ILR 37 Cal 467.
[14] Supra note 1 at p.630.
[15] Supra note 14.
[16] Supra note 1 at p.633.
[17] Proviso added by Act No. 4 of 2003.
[18]Supra note 1 at p.634.
[19] Supra note 18.
[20] Witness not excused from answering on the ground that answer will criminate.
[21] Supra note 6 at p.692.
[22] Supra note 5 at p.537.
[23] Arumuga Nadar v. State of Tamil Nadu ,AIR 1976 SC 2588.
[24] Supra note 1 at p.635.
[25] Supra note 1 at p.635.
[26] Supra note 6 at p.694.
[27] Batuk Lal, The Law of Evidence, (Allahabad: Central Law Agency) 17th Edition, p470.
[28] Ibid.
[29] Supra note 5 at p.540.
[30] 1975 Cr.LJ. 1297 SC.
[31] Supra note 27 at p.471.
[32] Prakash v. State of Maharashtra, 1975 Cr.LJ. 1297 SC.
[33] Supra note 6 at p.696.
[34] Ibid.
[35] Ibid.
[36] Supra note 6 at p.697.
[37] ILR 1970(2) Del 854.
[38] Mohd. Alam v. State (NCT of Delhi), 2007 Cr.LJ.803 (Del).
[39] Supra note 34.
[40] Supra note 31.
[41] Supra note 4 at p.698.
[42] Ibid.
[43] AIR 2005 SC712.
[44] Available at, http://www.brethrenassembly.com/Ebooks/Apol_20A1.pdf, visited on October 10, 2010.
[45] Available at, http://changingminds.org/techniques/questioning/questioning_traps.htm, visited on October 10,2010.
[46] Ibid.

Authors contact info - articles The  author can be reached at: prachishah@legalserviceinida.com




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