Leading vs. non-leading questions

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During a trial in the High Court of England and Wales, an advocate is preparing to call a witness who has difficulty recalling certain events. The witness’s testimony is vital to establish the precise timeline in a contractual dispute. Concerned that overly pointed questions might cause the witness to guess or fill gaps in their testimony, the advocate wants to ensure only genuine recollection is elicited. Later on, the advocate anticipates needing to cross-examine the opposing side’s witnesses to highlight inconsistencies in their statements. Throughout these proceedings, the advocate must remain compliant with the procedural rules and ethical obligations on the use of leading and non-leading questions.


Which of the following best reflects the correct approach to structuring the questions in this scenario?

Introduction

In the context of trial advocacy within the legal system of England and Wales, distinguishing between leading and non-leading questions is a significant aspect that directly impacts the admissibility and credibility of witness testimony. Leading questions are inquiries that suggest the desired answer or contain the information the examiner seeks to have confirmed. Non-leading questions, conversely, are open-ended and allow the witness to provide information without undue influence. Thorough knowledge of these questioning techniques is essential for legal practitioners to effectively manage examination-in-chief and cross-examination, following procedural rules and ethical considerations.

Understanding Leading and Non-Leading Questions

Effective questioning is a fundamental skill in legal advocacy, shaping the narrative presented to the court. Leading and non-leading questions serve distinct purposes in the examination of witnesses.

Non-Leading Questions

Non-leading questions, also known as open-ended questions, invite the witness to provide information in their own words without suggestion or prompting. These questions are primarily employed during examination-in-chief to elicit detailed and unbiased testimony.

Example:

  • "What did you observe at the intersection on the evening of March 15th?"

This approach allows the witness to narrate events from their own account, bolstering the authenticity and reliability of their testimony.

Leading Questions

Leading questions imply or suggest the answer within the question itself, often confirming specific details or directing the witness toward a particular response. They are predominantly used during cross-examination to challenge the witness's testimony or to control the information presented.

Example:

  • "You were driving at 80 mph in a 60 mph zone, weren't you?"

By framing the question in this manner, the examiner seeks to confirm a particular fact, often to point out inconsistencies or undermine the witness's credibility.

Legal Framework and Guidelines

The use of leading and non-leading questions is governed by legal rules and ethical considerations designed to ensure fairness and accuracy in judicial proceedings.

Rules Governing Non-Leading Questions

During examination-in-chief, the advocate must conform to rules that restrict the use of leading questions. According to the Civil Procedure Rules and established case law, non-leading questions should be used to:

  • Elicit Unbiased Testimony: Allowing the witness to present their account without undue influence.
  • Maintain Credibility: Preserving the integrity of the evidence by avoiding suggestions embedded in the questioning.
  • Comply with Procedural Norms: Upholding the adversarial system's emphasis on impartial fact-finding during the initial examination.

Permissible Use of Leading Questions

While generally prohibited during examination-in-chief, leading questions may be permitted in specific circumstances:

  • Introductory Matters: Establishing basic information such as the witness's name and occupation.
  • Undisputed Facts: Clarifying facts that are not contested by either party.
  • Hostile Witnesses: With the court's permission, leading questions may be used when a witness is deemed hostile.
  • Special Circumstances: In cases involving vulnerable witnesses, certain exceptions may apply under statutory provisions or judicial discretion.

Leading Questions in Cross-Examination

During cross-examination, leading questions are not only allowed but are a critical tool for the advocate. They are used to:

  • Control the Narrative: Direct the witness to specific points that may assist the examiner's case.
  • Highlight Inconsistencies: Uncover discrepancies in the witness's prior statements or testimony.
  • Challenge Reliability: Test the credibility or truthfulness of the witness's account.

Strategic Application in Trial Advocacy

The strategic use of leading and non-leading questions is important in building a persuasive case and effectively representing a client's interests.

Examination-in-Chief Strategy

During examination-in-chief, the advocate aims to construct a coherent and compelling narrative through the witness's testimony.

  • Building the Story: By asking open-ended questions, the advocate allows the witness to provide detailed accounts that support the case.

    Example:

    • Advocate: "Can you describe the events that led up to the contract signing?"
    • Witness: "Certainly, the negotiations began in early January when we were approached by the defendant's company..."
  • Anticipating Challenges: Thorough questioning helps to address potential weaknesses before cross-examination.

Cross-Examination Tactics

In cross-examination, the advocate seeks to test the evidence presented and challenge the opposing witness.

  • Focusing on Weaknesses: Leading questions are used to isolate specific points that may undermine the witness's testimony.

    Example:

    • Advocate: "You did not verify the client's identity before processing the transaction, correct?"
    • Witness: "That is correct."
  • Controlling the Exchange: By dictating the scope of the answers, the advocate maintains control over the information revealed.

Advanced Questioning Techniques

Beyond the fundamental use of leading and non-leading questions, skilled advocates employ advanced techniques to increase the effectiveness of their examination.

The Funnel Technique

Starting with broad questions and gradually narrowing the focus, the funnel technique guides the witness toward specific details.

  • Broad to Specific: This approach allows the advocate to establish context before honing in on critical facts.

    Example:

    • Advocate: "What was your role at the company?"
    • Witness: "I was the financial director."
    • Advocate: "What responsibilities did that entail?"
    • Witness: "Overseeing all financial transactions."
    • Advocate: "Were you responsible for approving expenditures over £50,000?"
    • Witness: "Yes, I was."

Looping

Looping involves repeating key phrases or facts provided by the witness to emphasize important points.

  • Emphasizing Testimony: By restating the witness's words, the advocate highlights critical information.

    Example:

    • Witness: "I never received the email notification."
    • Advocate: "To confirm, you never received the email sent on March 10th?"

Controlled Repetition

Controlled repetition involves revisiting a witness's previous statements to highlight key evidence or to draw attention to discrepancies.

  • Emphasizing Key Facts: Reiterating significant details can solidify their importance in the minds of the judge or jury.

    Example:

    • Advocate: "Earlier, you stated that the agreement was verbal, is that right?"
    • Witness: "Yes, that's right."

Handling Expert Witnesses

Questioning expert witnesses requires a tailored approach, balancing respect for their knowledge with rigorous examination.

  • Establishing Credentials: Confirming the expert's qualifications through non-leading questions.

    Example:

    • Advocate: "Could you outline your experience in forensic accounting?"
  • Challenging Opinions: Using leading questions to test the basis and validity of the expert's conclusions.

    Example:

    • Advocate: "Your analysis did not consider the latest financial data, did it?"

Comparative Analysis: Common Law and Civil Law Systems

Understanding how questioning techniques differ across legal systems enriches the advocate's approach and broadens tactical awareness.

Common Law System (England and Wales)

  • Adversarial Nature: The parties present their cases to an impartial judge or jury.
  • Role of the Advocate: Responsible for eliciting evidence through direct examination and cross-examination.
  • Strict Rules on Questioning: Clear guidelines dictate when leading questions may be used.

Civil Law Systems

  • Inquisitorial Approach: The judge plays a more active role in investigating the facts.
  • Witness Examination: Often conducted by the judge, with less emphasis on the advocate's questioning.
  • Flexibility in Questioning: The distinction between leading and non-leading questions may be less pronounced.

Understanding these differences is important for advocates who may encounter diverse legal environments or who wish to appreciate procedural variations that influence trial strategy.

Practical Considerations for SQE1 FLK1 Candidates

For candidates preparing for the SQE1 FLK1 exam, a thorough understanding of questioning techniques is necessary.

  • Familiarity with Rules: Knowing the legal framework governing examination-in-chief and cross-examination.
  • Skill Development: Practicing the formulation of both leading and non-leading questions.
  • Ethical Awareness: Ensuring compliance with ethical standards, particularly when dealing with vulnerable witnesses.
  • Application in Scenarios: Applying knowledge to hypothetical situations as practiced in exam questions.

Conclusion

The effectiveness of an advocate in trial proceedings is greatly influenced by the strategic application of leading and non-leading questions. The balance between allowing a witness to present their narrative and rigorously testing the testimony requires comprehensive knowledge of legal principles and procedural guidelines.

Proper use of non-leading questions during examination-in-chief facilitates the authentic presentation of evidence, reinforcing its credibility. Conversely, leading questions during cross-examination serve as a tool to challenge and scrutinize the witness's account, often revealing inconsistencies or uncovering new information.

Advanced questioning techniques, such as the funnel approach and looping, equip advocates to control the flow of testimony and emphasize critical facts. Additionally, an appreciation of how questioning strategies differ between common law and civil law systems broadens the advocate's awareness and adaptability.

For SQE1 FLK1 exam candidates, understanding the distinctions and applications of leading versus non-leading questions is critical. Proficiency in these techniques reflects a combination of doctrinal knowledge and practical skill, aligning with the exam's focus on the application of substantive and procedural law.

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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

Saptarshi Chatterjee

Senior Associate at Trilegal