Any statement suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. It 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, e.g. when a witness called to testify to an alleged assault on A by B is asked, “Did you see B take a stick and strike A?” or “Did you not hear him say this?”. Leading questions says Taylor, are questions which suggest to the witness the answer desired or which, embodying a material fact, admit of a conclusive answer by a simple negative or affirmative. (Nicholls v. Dowding, 1815).
A question that calls for a simple “yes” or “No” answer is not leading. It is a question assuming expressly or impliedly a material fact not testified to, which points out the desired answer to enable the witness to affirm such fact.
As per FOWLER J, “a question is leading which instructs the witness how to answer on material points, or put into his mouths words to be echoed back, or plainly suggests the answer which the party wishes to get from him. (Page vs. Parker, 40 NH 63). The proper significance of the expression is a suggestive question,— one which suggest or puts the desired answer into the mouth of his witness. For instance, is not your name so and so? Do you reside in such a place? Are you not in the service of such and such 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 question to be put to him; and the examiner, while pretends ignorance and is asking for information, is in reality giving instead of receiving it. (Bentham Rationale of Judicial Evidence).
Leading question ought not to be put when it is sought to prove material and proximate circumstances. A question is objectionable as leading when it suggests the answer, not when it merely directs the attention of the witness to the subject respecting which he is questioned; e.g. on a question whether A and B were partners, it has been held not a leading question to ask if A has interfered in the business of B. (Nicholls v Dowding 1815).
When they must not be asked?
Leading questions must not, if objected by the adverse party, be asked in an examination in chief or in a re-examination, except with the permission of the court.
Principle and object:
The general rule is that leading questions should not be asked in examination in chief or re examination. It is the business of the advocate to help the court in the administration of justice by eliciting facts within the knowledge of his witness, and not to prompt him. The reason for the exclusion of leading questions in examination in chief or re-examination is simple. A witness has a natural or sometimes unconscious bias in favour of the party calling and he will therefore be too ready to say “Yes” or “No”, as soon as he realises from the form of question that the one or the other answer is desired from him. Another reason is that the party calling a witness has advantage over his adversary, in knowing beforehand what the witness will prove, or is at least expected to prove and that consequently, if he were allowed to lead, he might interrogate in such a manner as to extract only so much of the knowledge of the witness as would be favourable to his side, or even put a false gloss upon the whole.
If objected to by the adverse party:
If the objection is not taken at the time, the answer will be taken down in the judge’s note and it will be too late to object to the evidence on the scope of its having being elicited by leading question.
Objection to be taken at the earliest:
The objection should be taken at the earliest opportunity, i.e. when the question is put, or is in the course of being put.
Court may in its discretion permits leading questions:
The court may in its discretion allow leading questions to be put in proper cases.
Exceptions to the General rule:
The following are exceptions to the general rule that leading question shall not be asked in examination in chief.
Introductory or undisputed Matter:
The court shall permit leading questions as to matters which are introductory or undisputed or which have been sufficiently proved. The rule that leading questions should not be asked in examination in chief “must be understood in a reasonable sense; for if it were not to be allowed to approach the points at issue by such questions, examination would be most inconveniently protracted.
A witness may asked leading questions in order to contradict statements made by another witness, e.g. if A has said that B told him so and so; B may be asked, Did you ever say that to A?.
The rule will be relaxed where the inability of a witness to answer questions put in a regular way obviously arises from defective memory. Thus, where a witness has on account of illness, illiteracy, old age or failing memory, or other cause apparently forgotten a fact or name, and all attempts to recall it to his mind by ordinary questions have failed, his attention may be drawn to it by question in leading form.
The rule will be relaxed, where the inability of a witness to answer question put in the regular way arises from the complicated nature of the matter as to which he is interrogated.
When they may be asked:
Leading questions may be asked in cross examination.
Principle and scope:
The purpose of cross examination being to elicit truth from the tangled mass of evidence adduced, greater latitude of interrogation is allowed and the rule that must be confined to the points in issue does not apply to cross examination with the same strictness as in examination in chief. The reason for excluding leading questions in examination in chief does not exist when a witness is under cross examination as the witness is generally adverse or at least not friendly to the party cross examining. This Article, therefore, says that leading questions may be asked in cross examination. The object of cross examination being to impeach the accuracy, credibility, and general value of evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit supposed facts which will support the case of party cross-examining, it sometimes become necessary for a party to put leading questions in order to elicit facts in support of his case, even though the facts so elicited may be entirely unconnected with the facts testified to in examination in chief. Therefore, an adverse witness may on cross examination be asked leading questions.
Rule not unlimited in scope:
The rule that leading questions may be asked in cross examination is not unrestricted in its scope. When the witness under examination is favourable to him, the court will sometimes refuse to allow the cross examiner to lead his adversary’s witness. According to Wig, the purpose of the cross examination is to sift testimony and weaken its force, in short to weaken the direct testimony, it is well established that on cross examination of opponents witness, ordinarily no question can be improper as leading. Yet where the reason ceases, the rule ceases also; thus, when an opponent’s witness proves to be in fact biased in favour of the cross examiner, the danger of leading questions arises and they may be forbidden.