Why some types of leading question should be banned from court

Are leading questions swaying the scales of justice? mikecogh/flickr.com via http://www.blogtrepreneur.com/media-justice/, CC BY-SA

If you were asked one of the following two questions by a lawyer on the witness stand, would you feel like you were being led to answer in a certain way? “Did he touch you?” or “He didn’t touch you, did he?”

A leading question is one which prompts an interviewee to answer in a particular way. While they may be important to the process of examination in court, and barristers are taught to use them, identifying leading questions can be difficult.

If you take the example above, both are technically leading questions. But it is the second – “He didn’t touch you, did he?” – which I would argue is particularly pernicious. It is known as a “directive form question” and can be more damaging to the accuracy of witness reports. The other question – “Did he touch you?” – is what’s called a “non-directive” leading question. A non-leading question would be simply: “Did anything happen?”.

My research shows that directive forms of leading questioning are a primary concern in cross examination. But there is a problem with the way the law in England and Wales defines leading questions. The law needs refinement and revision and I argue that direct leading questions should be prohibited in cross-examination.

In 2013, violinist Frances Andrade was found dead after giving evidence against her former teacher who was later found guilty of indecently assaulting his pupil. In court, Andrade was called a “liar” and a “fantasist” under cross-examination. By putting the question: “Utter fantasy, is it not?” to her in cross-examination, she was subjected to a direct form of leading question.

Andrade, texted a friend three days before her death to say she felt like she had been “raped all over again” after appearing in the witness box at Manchester Crown Court. This is just one of a number of high-profile cases in which vulnerable witnesses have had to relive experiences in detail under cross-examination in court.

Her husband, Levine Andrade, said in an interview after her death that he hoped an improvement in the law could be her legacy. “I hope they can change the law,” he said in an interview with the Mail on Sunday. “Fran felt as if she was on trial. She kept saying, ‘I can see why nobody comes forward. I can see how people crack under the pressure.’”

Setting ground rules

In 2014, the case prompted exploration of a way to rebalance the legal process. One way to assist those vulnerable to give evidence is by use of ground rules hearings. This kind of process sets out what considerations and provisions might be required so that cases can be dealt with justly. In doing so, ground rules may provide a framework for the appropriate questioning of a vulnerable witness. But this process does not assist all witnesses who are required to give evidence in court.

Be prepared. aerogondo2/www.shutterstock.com

It is important that the aim of a trial is achieved, and that witnesses are assisted to give their most accurate testimony to the court. Real-life cases, as illustrated in the case of Andrade, and research into the damaging effects of leading questions calls into question the accuracy of witness reports.

It is essential that the balance between testing how reliable a witness is and testing their accuracy is maintained so as not to undermine the right of the defence to challenge the evidence. Barristers will therefore use leading questions – some of them “direct” ones – during a trial to obtain particular information that they need confirmed.

In 2010, research I worked on showed that the directive leading form, as used in cross examination, had clear detrimental effects on robust witness accuracy by making them tell a mistruth. Providing examples of the directive leading style to witnesses as simple advance preparation, however, helped them to be more confident in giving accurate answers.

Legal understanding and definition of the leading question needs refinement and revision. The current approach in England and Wales to leading questions does not assist or promote the accuracy of all witness evidence – nor does it encourage all witnesses to give of their best. Redefinition of the leading question, and banning directive leading questions, will enhance the fact-finding aims of the trial process.