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. It explains the definitions and characteristics of leading and non-leading questions, the general prohibition on leading questions in examination-in-chief and re-examination, the exceptions where they may be permitted, and the strategic use of leading questions in cross-examination. It also connects questioning rules to wider trial practice under the Civil Procedure Rules, including the role of witness statements as evidence-in-chief, fairness in putting one party’s case to the other, and the limits of re-examination. By working through the content, you will be equipped to apply questioning rules to realistic trial scenarios and avoid procedural errors that may affect the admissibility, weight, or management of witness evidence.

SQE1 Syllabus

For SQE1, you are required to understand the rules governing the use of leading and non-leading questions in civil trials and their application under the Civil Procedure Rules, with a focus on the following syllabus points:

• 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 relationship between CPR 32 (witness statements) and the practical conduct of examination-in-chief
• fairness requirements during cross-examination (including the duty to put your case)
• the scope of re-examination and why leading is generally prohibited at that stage
• practical consequences and case management responses to improper questioning (including judicial intervention and costs implications)

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.

In civil trials, witness statements typically stand as a witness’s evidence-in-chief under CPR Part 32. The oral examination that follows is usually limited to the administration of the oath, confirmation of identity and occupation, and confirmation that the witness statement is true. Where necessary, non-leading questions may be used to clarify points, deal with updates since the statement was signed, or to address matters that have arisen late in the case management timetable. In contrast, cross-examination is the phase where leading questions are generally permitted and expected. Re-examination is then limited to clarifying or rectifying ambiguities arising from cross-examination, usually through non-leading questions. Understanding these boundaries ensures the judge receives evidence in a fair and reliable way and prevents counsel from inadvertently “testifying through the witness.”

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.

Examples commonly used in civil trials include:

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

Using non-leading questions during examination-in-chief allows the witness's evidence to emerge naturally, which can improve its credibility. Non-leading questions can also be used to “signpost” the witness through their account (e.g., “Turning to the afternoon of 12 March, what occurred next?”). Such signposting is allowed because it frames time or topic without suggesting the substance of the answer.

A question can be non-leading yet specific. For example, “What happened at approximately 10:30 a.m.?” directs the witness to a time window but does not presuppose what occurred. The key is avoiding assumptions or the insertion of contested facts into the question.

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.

Examples include:

• "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. They can also be used to control the pace and scope of cross-examination, focusing the witness on one discrete proposition at a time.

Practical tip: When crafting leading questions for cross-examination, keep them short and contained—ideally one fact per question. Compound questions (e.g., “You arrived late and forgot the safety check, didn’t you?”) can confuse the witness and invite equivocation. Separating the propositions improves clarity and makes it easier for the court to follow.

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 ensures the witness gives their own evidence in their own words, rather than simply confirming a narrative suggested by the advocate. Allowing leading questions could risk the advocate effectively giving evidence themselves.

In civil practice, CPR Part 32 affects the conduct of examination-in-chief. Because witness statements stand as evidence-in-chief, the oral component of examination-in-chief is usually limited. Counsel often:

• administer the oath or affirmation and confirm identity and occupation,
• confirm the truth of the witness statement,
• deal briefly with updates or corrections,
• clarify any points that need expansion, using non-leading questions.

If the witness’s statement is comprehensive and current, no further substantive questions may be necessary in chief. If additional detail is needed (for instance, where late disclosure introduces new documents), counsel should proceed carefully, avoiding leading questions on contested facts.

Non-leading questions in chief can also guide the witness through documentary exhibits (e.g., “Please look at page 142 of the bundle; what does that email record?”). This is permissible because it does not suggest the substantive answer.

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 and Signposting: 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 as if in cross-examination. This may include confronting the witness with prior inconsistent statements or documents.

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.

Other practical situations where limited leading may be acceptable in chief include:

• confirming short, uncontroversial facts (e.g., dates, locations, attendance),
• clarifying where the witness cannot recall and the fact is non-contentious (e.g., “It was Monday, wasn’t it?” when both parties accept that date),
• establishing context to orient the witness in relation to a document (e.g., “This is your signature?”).

Care must be taken to avoid inserting contested assertions into questions. Even where a judge permits limited leading on formalities, substantive evidence should be elicited non-leadingly.

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.

Practical point: Because the witness’s statement will usually stand as their evidence-in-chief, counsel should confirm its truth and only ask non-leading clarifying questions if essential. If the statement already details the inspection and findings, further elaboration in chief may be unnecessary and risks repetition.

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 by exposing inconsistencies, improbabilities, or omissions,
• testing the witness's credibility (memory, perception, bias),
• eliciting favourable evidence or admissions that support the cross-examiner's case,
• putting the cross-examiner's case to the witness to give them an opportunity to respond.

A fairness principle underpins effective cross-examination: if you intend later to argue that a witness is wrong or misleading on a material issue, you should put your contradictory case to the witness in cross-examination. This gives the witness a fair chance to address the allegation and allows the judge to assess the competing accounts. Failing to put key points to the witness risks criticism and undermines the weight of submissions later.

Leading questions in cross-examination can be used:

• to confirm a discrete fact (e.g., “You arrived after the safety briefing, correct?”),
• to tie the witness to a document (e.g., “Your email of 10 May states ‘delivery by 7 May is essential’, does it not?”),
• to confront prior inconsistent statements (“In your witness statement you said X, but in your inspection notes you recorded Y, correct?”),
• to narrow the dispute (“You agree that only four units were examined by your team, yes?”).

Well-structured cross-examination generally proceeds incrementally. Establish easy propositions first (dates, attendance, authorship of documents), then move to harder points (interpretations, conclusions). Avoid open-ended questions unless seeking to explore a ramified answer strategically; open questions give the witness control and are more suited to examination-in-chief.

Use of documents in cross-examination is common in civil practice. If a witness needs to be shown a document to answer a question properly, first establish the document’s identity and authorship (e.g., “This is the report you signed on 2 June?”) and then put its contents to the witness leadingly. Where the cross-examiner intends to rely on hearsay within a document as evidence, they must comply with the procedural requirements for hearsay; otherwise, the judge may allow it to be put for testing credibility but treat its substantive value with caution.

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, misleading, or oppressive questioning is improper. The scope of cross-examination, while broad, is not unlimited and must ultimately be relevant to the issues in dispute.

The court retains robust case management powers. If counsel wastes time through improper or repetitive questioning or seeks to re-litigate irrelevant side issues, the judge may intervene, restrict further questioning, and in serious cases criticise conduct. Conduct that unreasonably prolongs the hearing or disregards directions can have costs consequences (e.g., adverse or wasted costs orders in appropriate circumstances). Civil trials aim to deal with cases justly and at proportionate cost; the cross-examiner’s style should support that overriding objective.

Worked Example 1.3

Scenario: The claimant alleges that time was of the essence for delivery by 7 May. The defendant’s witness states in-chief that they “aimed to deliver early May” but denies any strict deadline. The cross-examiner holds an email from the defendant dated 15 April stating, “Delivery must be by 7 May to meet the hotel opening.”

Question: Which of the following is the most effective way to use leading questions and the document in cross-examination?

a) “Can you talk us through your approach to scheduling deliveries?” b) “Do you recall sending emails in April about delivery timing?” c) “Your email of 15 April states, ‘Delivery must be by 7 May to meet the hotel opening,’ doesn’t it?” d) “Why did you say time was not of the essence in your statement?”

Answer:
Option (c) is best. It ties the witness directly to the document and extracts the key proposition in a leading form. Options (a) and (b) are open and risk vague answers. Option (d) asks for justification without first establishing the contradictory fact.

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. If important points were not addressed in cross-examination, counsel cannot use re-examination to introduce them; the correct course may be to seek the court’s permission in exceptional circumstances, but generally the scope remains confined.

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. Permissible approaches include:

• asking the witness to clarify an answer that appeared contradictory,
• inviting the witness to explain the context of a document the cross-examiner relied upon,
• dealing with an apparent misinterpretation introduced during cross.

For example, if cross-examination established that only four units were tested, re-examination can legitimately ask, “Why were four units examined?” or “Describe the sampling method used,” avoiding leading wording such as “You were required to examine only four units, weren’t you?” which would be improper.

If re-examination strays beyond matters arising in cross-examination, opposing counsel may object and the judge may disallow the question or require it to be rephrased. Remember that judges can ask their own questions for clarification. Counsel should be prepared to assist the court with references to the trial bundle and the structure of the witness’s evidence if asked.

Worked Example 1.4

Scenario: During cross-examination, the witness agreed that “only four machines were tested.” The cross-examiner implied this was inadequate. In fact, four was a statistically justified sample size previously agreed with both parties’ experts.

Question: Which question in re-examination best clarifies this without leading?

a) “You only tested four machines because that’s inadequate, right?” b) “Explain why four machines were selected for testing.” c) “Isn’t it true that four was the sample size both parties agreed?” d) “You were forced to use four because the defendant refused access, correct?”

Answer:
Option (b) is proper. It invites an explanation of the sampling methodology, which arose from cross-examination. Options (a), (c), and (d) are leading and introduce contested assertions.

Worked Example 1.5

Scenario: A claimant’s witness was cross-examined with a document—an internal checklist annotated “Not urgent.” The witness answered, “I didn’t write that note.” The judge seemed uncertain about the authorship.

Question: What non-leading re-examination question properly clarifies authorship?

a) “You didn’t write ‘Not urgent,’ did you?” b) “Who wrote ‘Not urgent’ on the checklist?” c) “Isn’t it true that the defendant wrote ‘Not urgent’?” d) “It was someone in procurement who wrote it, wasn’t it?”

Answer:
Option (b) is proper. It asks for identification without suggesting the answer. Options (a), (c), and (d) are leading.

Additional Practical Guidance

The rules about leading and non-leading questions sit within broader trial practice and evidence principles under the Civil Procedure Rules.

• Witness statements stand as evidence-in-chief. Oral questioning is primarily a confirmation and clarification exercise. Non-leading questions are used sparingly and strategically.
• Opinion evidence is generally inadmissible unless given by an expert or it is a lay perception of a relevant fact. Leading questions that call for bare opinion (e.g., “Your driving fell below the reasonable standard, didn’t it?”) are weak advocacy and may attract objection.
• Hearsay is admissible in civil proceedings, subject to notice requirements where a party intends to rely on it. If hearsay is put in cross-examination, the judge may consider its weight in light of compliance with procedural rules and the circumstances.
• The judge actively manages the trial to achieve proportionality and efficiency. Prolonged or improper questioning may prompt intervention and, in serious cases, costs criticism. Conversely, clear, well-structured questioning assists the judge and supports your client’s case.

Hostile witnesses deserve special mention. Where a witness called by your side becomes hostile or demonstrates unwillingness to tell the truth, you may seek the court’s permission to treat the witness as hostile. If granted, you can cross-examine your own witness, including using leading questions and confronting them with prior inconsistent statements. This remedy is exceptional; you should set out the basis for hostility clearly and ensure the court appreciates why fairness requires cross-examination at that point.

Worked Example 1.6

Scenario: The claimant calls a warehouse supervisor. In-chief, the supervisor unexpectedly insists the delivery deadline was “flexible,” contradicting their signed witness statement and contemporaneous emails. The supervisor appears evasive and aggressive.

Question: What is the correct approach to questioning now?

a) Continue with non-leading questions in-chief; the judge will discount the evasion. b) Ask leading questions immediately to challenge the witness. c) Apply to the judge to treat the witness as hostile so you may cross-examine them using leading questions. d) Withdraw the witness to avoid damaging the case.

Answer:
Option (c) is correct. You must seek the court’s permission to treat the witness as hostile before cross-examining your own witness with leading questions. Options (a) and (b) do not address the procedural requirement; option (d) may waste a potentially recoverable situation and deprive the court of relevant evidence.

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, control the narrative, and put your case.
• Examination-in-chief generally prohibits leading questions on contentious issues. Limited exceptions exist for introductory matters, undisputed facts, signposting, and with court permission for hostile witnesses.
• Under CPR Part 32, witness statements usually stand as evidence-in-chief; oral questioning in chief is for confirmation and clarification, using non-leading questions.
• Cross-examination permits leading questions. Fairness requires that you put material points of your case to the witness and use documents effectively to test their account.
• Re-examination is strictly limited to matters arising from cross-examination and generally prohibits leading questions; it is for clarifying or correcting ambiguities.
• Judges may intervene where questioning is irrelevant, oppressive, or disproportionate; improper questioning can attract adverse comment and costs consequences.
• Strategic use of questioning types supports the overriding objective and helps the court deal with cases justly and at proportionate cost.

Key Terms and Concepts

• Non-leading Question
• Leading Question
• Examination-in-Chief
• Hostile Witness
• Cross-Examination
• Re-Examination