Preparation for trial - Leading vs. non-leading questions

Learning Outcomes

This article outlines the rules and practices concerning the use of leading and non-leading questions during witness examination in civil trials. After reading this article, you should understand the definitions of leading and non-leading questions, recognise when each type is permitted or prohibited during examination-in-chief, cross-examination, and re-examination, and appreciate the strategic implications of using different questioning techniques. This knowledge is essential for effectively managing witness evidence and complying with procedural requirements assessed in SQE1.

SQE1 Syllabus

For SQE1, you are required to understand the practical application of evidence rules in the context of civil trials, particularly concerning witness examination. This includes differentiating between leading and non-leading questions and knowing the procedural rules governing their use at different stages of questioning a witness. Your understanding will be tested on your ability to apply these rules in scenarios involving examination-in-chief, cross-examination, and re-examination.

As you work through this article, remember to pay particular attention in your revision to:

  • the definitions and characteristics of leading and non-leading questions
  • the general prohibition on using leading questions during examination-in-chief and re-examination
  • the exceptions where leading questions may be permitted during examination-in-chief
  • the permissible use and strategic purpose of leading questions during cross-examination
  • the potential consequences of improperly using leading questions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which stage of witness examination generally prohibits the use of leading questions?
    1. Cross-examination
    2. Examination-in-chief
    3. Re-examination
    4. Both b) and c).
  2. In which of the following circumstances might a leading question be permitted during examination-in-chief?
    1. When dealing with introductory matters (e.g., witness name and address).
    2. When dealing with facts that are not in dispute between the parties.
    3. When questioning a witness deemed hostile by the court.
    4. All of the above.
  3. What is the primary purpose of using leading questions during cross-examination?
    1. To allow the witness to tell their story freely.
    2. To challenge the witness's evidence and test their credibility.
    3. To introduce new topics not covered in examination-in-chief.
    4. To ensure the witness feels comfortable and relaxed.

Introduction

A fundamental aspect of preparing for and conducting a civil trial involves the examination of witnesses. The way questions are framed can significantly influence the evidence presented to the court. Solicitors must understand the distinction between leading and non-leading questions and the rules governing their use during different phases of witness testimony: examination-in-chief, cross-examination, and re-examination. Compliance with these rules is key to effective advocacy and ensuring evidence is admitted correctly. This article explores these distinctions and rules, providing a basis for practical application in scenarios relevant to the SQE1 assessment.

DEFINING LEADING AND NON-LEADING QUESTIONS

Understanding the core difference between these two question types is the first step.

Non-Leading Questions

Non-leading questions are open-ended and do not suggest the answer. They invite the witness to provide their account in their own words, without being steered towards a particular response. They typically start with words like 'Who', 'What', 'Where', 'When', 'Why', or 'How', or ask the witness to 'describe' or 'explain'.

Key Term: Non-leading Question A question framed in a way that does not suggest the expected answer, allowing the witness to respond in their own terms. Often used in examination-in-chief.

Example:

  • "What did you see when you entered the room?"
  • "Describe the condition of the vehicle after the collision."
  • "How did the defendant react?"

Using non-leading questions during examination-in-chief allows the witness's evidence to emerge naturally, which can improve its credibility.

Leading Questions

Leading questions, conversely, suggest the desired answer or contain the information the questioner wishes to confirm. They often imply a 'yes' or 'no' answer or steer the witness towards a specific piece of information.

Key Term: Leading Question A question phrased in a way that suggests the desired answer or assumes facts not yet established in evidence. Generally permissible in cross-examination but restricted in examination-in-chief.

Example:

  • "You saw the defendant run out of the bank, didn't you?" (Suggests the answer 'yes')
  • "Was the car travelling at excessive speed?" (Suggests speed was excessive)
  • "The contract was signed on Tuesday, correct?" (Suggests the date)

Leading questions can be useful for confirming specific details or challenging a witness but are restricted during certain phases to prevent the advocate from testifying through the witness.

QUESTIONING IN EXAMINATION-IN-CHIEF

Examination-in-chief is the questioning of a witness by the advocate for the party who called that witness. The primary aim is to elicit evidence that supports that party's case, presented through the witness's own account.

Key Term: Examination-in-Chief The initial questioning of a witness by the party who called them to give evidence, primarily using non-leading questions to elicit their account.

The general rule during examination-in-chief is that leading questions are not permitted on contentious matters. This rule exists to ensure that the witness gives their own evidence in their own words, rather than simply confirming the narrative suggested by the advocate. Allowing leading questions could risk the advocate effectively giving evidence themselves.

Exceptions: When Leading Questions May Be Permitted

Despite the general rule, leading questions may be permitted during examination-in-chief in specific, limited circumstances, often for efficiency:

  1. Introductory Matters: Questions relating to the witness's name, address, occupation, and relationship to the parties are usually allowed to be leading.
    • Example: "Your name is Jane Doe, and you live at 123 Main Street, is that correct?"
  2. Undisputed Facts: Questions on matters that are not in dispute between the parties can be leading.
    • Example: "You agree that the meeting took place on the 15th of June?" (assuming the date is not contested).
  3. Formal Matters: Leading questions may be used to direct the witness to a specific time, place, or topic to focus their evidence, provided the core of the evidence elicited remains non-leading.
    • Example: "Directing your attention to the morning of July 1st, did you attend a meeting at the London office?"
  4. Hostile Witnesses: If a witness demonstrates clear hostility or unwillingness to testify truthfully for the party that called them, the advocate may apply to the judge to have the witness declared hostile. If permission is granted, the advocate may then cross-examine their own witness using leading questions.

Key Term: Hostile Witness A witness who demonstrates animosity towards the party that called them or an unwillingness to tell the truth, potentially allowing that party (with court permission) to ask leading questions as if in cross-examination.

Worked Example 1.1

Scenario: The claimant is suing the defendant for breach of contract regarding the sale of goods. The claimant alleges the goods delivered were not of satisfactory quality. The claimant calls their quality control manager as a witness.

Question: Which of the following questions would be permissible during the examination-in-chief of the quality control manager?

a) "The goods delivered were clearly defective, weren't they?" b) "Did you find numerous faults rendering the goods unusable?" c) "Could you please describe the condition of the goods when you inspected them on arrival?" d) "Isn't it true that the defendant supplied substandard items?"

Answer: Option (c) is the only permissible question. It is a non-leading question asking the witness to describe their findings. Options (a), (b), and (d) are all leading questions as they suggest the answer (that the goods were defective, faulty, or substandard) and relate to contentious matters.

QUESTIONING IN CROSS-EXAMINATION

Cross-examination involves the questioning of a witness by the advocate for the opposing party. Its purpose is fundamentally different from examination-in-chief.

Key Term: Cross-Examination The questioning of a witness by the opposing party after examination-in-chief, typically using leading questions to challenge testimony, test credibility, or elicit favourable evidence.

During cross-examination, leading questions are generally permitted and are a primary tool for the cross-examining advocate. The rationale is that the witness may be biased towards the party who called them, and leading questions are necessary to test their evidence rigorously.

The objectives of cross-examination often include:

  • Challenging the witness's evidence: Pointing out inconsistencies, weaknesses, or improbabilities.
  • Testing the witness's credibility: Questioning their memory, perception, or potential bias.
  • Eliciting favourable evidence: Obtaining admissions or information that supports the cross-examiner's case.
  • Putting the cross-examiner's case: Presenting the opposing party's version of events to the witness for comment or challenge.

Worked Example 1.2

Scenario: Continuing from Worked Example 1.1, the defendant's advocate is now cross-examining the claimant's quality control manager.

Question: Which of the following questions exemplifies a typical leading question used effectively in cross-examination?

a) "Can you explain your inspection process?" b) "What qualifications do you have in quality control?" c) "You only inspected a small sample of the goods, didn't you?" d) "What did you find during your inspection?"

Answer: Option (c) is a classic leading question suitable for cross-examination. It suggests a specific fact (that only a small sample was inspected) and seeks confirmation, potentially undermining the thoroughness of the inspection if true. Options (a), (b), and (d) are non-leading questions more suited for examination-in-chief or eliciting background information.

Exam Warning

While leading questions are permitted in cross-examination, advocates must still comply with rules of relevance and fairness. Questions should relate to matters raised in examination-in-chief or to the witness's credibility. Harassing or misleading questions are improper. The scope of cross-examination, while broad, is not unlimited and must ultimately be relevant to the issues in dispute.

QUESTIONING IN RE-EXAMINATION

Following cross-examination, the party who originally called the witness has the opportunity for re-examination.

Key Term: Re-Examination The questioning of a witness by the party who called them, following cross-examination, aimed at clarifying or correcting matters raised during cross-examination.

The purpose of re-examination is strictly limited to addressing ambiguities or clarifying points that arose during cross-examination. It is not an opportunity to introduce new evidence or topics that were not covered previously.

Similar to examination-in-chief, the general rule is that leading questions are prohibited during re-examination. The advocate must use non-leading questions to allow the witness to explain or qualify answers given under cross-examination.

Key Point Checklist

This article has covered the following key knowledge points:

  • Non-leading questions are open-ended and elicit the witness's own account, primarily used in examination-in-chief and re-examination.
  • Leading questions suggest the answer and are primarily used in cross-examination to challenge evidence or control the narrative.
  • Examination-in-chief generally prohibits leading questions on contentious issues, with exceptions for introductory/undisputed matters or hostile witnesses.
  • Cross-examination permits leading questions to test the witness's evidence and credibility.
  • Re-examination is limited to clarifying matters from cross-examination and generally prohibits leading questions.
  • Understanding and correctly applying these rules is essential for effective trial advocacy and SQE1 success.

Key Terms and Concepts

  • Non-leading Question
  • Leading Question
  • Examination-in-Chief
  • Hostile Witness
  • Cross-Examination
  • Re-Examination
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

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Senior Associate at Trilegal