A leading question is a question that assumes a state of facts or puts the answer to the witness.
Leading questions are not permitted during examination in chief except on introductory and non-contentious matters. Some have argued a question "was it this or that" is leading. Such argument might seem valid as there is an implicit assumption in the "either or" form of question.
Today's Supreme Court decision in R. v. E.M.W., 2011 SCC 31 holds "either or" questions are not leading because they do not suggest the answer. The Court holds:
"Leading questions are questions that suggest an answer or assume a state of facts that is in dispute. Here the questions put by Crown counsel to the complainant in examination in chief did not cross this threshold. Crown counsel, in meeting the challenge of a child reluctant to respond, asked binary questions that gave her a choice between alternatives. They did not, however, suggest an answer. The main components of the offence were elicited from the complainant by non-leading questions. We are not satisfied that her evidence, viewed as a whole, was improperly obtained by leading questions."
1 comment:
I think it might be possible to have "either or" questions be not leading, but I think that this type of questioning could be dangerous.
An obvious, extreme, example: Did you stop beating your wife on Thursday, or on Tuesday? A false dichotomy, especially after a series of either-or questions where the witness has gotten used to picking one or the other, could end up in the witness feeling pressured to go with one of the choices given (rather than none of the above).
Much less obviously, and far more importantly, look at why science has double-blind tests. A and B might be selected perfectly, and the scientist/questioner might truly want an unbiased answer. But if they have a preferred answer, and are in contact with the subject/witness, they can indicate the preferred answer, subconsciously, through body language.
If it's important enough to take account of unintentional physical cues while finding out if someone's preference is for Pepsi or for Coke, then it's important enough to do so in court as well.
Post a Comment