Rethinking the use of leading questions during criminal trials

Lady Justice

A University of Liverpool expert has published a paper challenging the current use of leading questions during criminal trials.

Dr Jacqueline Wheatcroft from the Institute of Psychology, Health & Society believes the law’s understanding of the leading question needs refinement and revision.

A leading question is a question which prompts the respondent to answer in a particular way.

Best evidence 

Barristers will often use leading questions during a trial to obtain particular information that they need confirmed. Depending on the circumstances, leading questions can be objectionable or proper.

Dr Jacqueline Wheatcroft, said: “It is important that the aim of a trial is achieved; namely, that the witness is assisted to give of their best evidence. Real-life cases and history of research into the damaging effects of certain kinds of question forms used in cross-examination calls into question the reliability and accuracy of witness reports. The balance between testing witness veracity and obtaining accurate reports must be maintained whilst not undermining the right of the defence to challenge evidence.”

The paper, published in Criminal Law Review, argues that there is a dearth of legal and psychological consideration of the effectiveness of different form of leading questions used during the trial process.

Revised definition

The article poses a recommendation for change as the current approach to leading questions does not assist or promote the accuracy of witness evidence nor does it encourage witnesses to give of their best.

On the basis of empirical evidence Dr Wheatcroft and her colleagues suggest a revised definition of what constitutes a leading question, differentiating between directive and non-directive putting that directive questioning is the primary mischief in cross-examination. Its prohibition is proposed.

Refinement and revision

Dr Wheatcroft, adds: “Leading questions are important to the process of examination but identifying them can be difficult. The form of questions is important and up until this paper the term leading question in legal circles had not been differentiated.

“Importantly, psychological experiments show that the form of a question matters and can have significant impact on the accuracy of witness responses to those questions. The directive form is particularly damaging and can have several effects on memory but that very few witnesses can resist being misled.

“The law’s understanding of the leading question needs refinement and revision. On the basis of psychological evidence and advances of science, redefinition of the leading question will enhance the fact-finding aims of the trial process through confining its use in cross-examination.

“That need for change poses an opportunity not only to eliminate negative aspects of cross-examination but to enhance other features of the way advocates test oral evidence in the 21st century of adversarial litigation.”

A copy of the paper can be obtained from Westlaw UK.

Lady Justice

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