Domestic and foreign legal regulation of the use of leading questions during direct examination of a witness in criminal proceedings

Abstract

It is noted that the Ukrainian legislator prohibits asking leading questions during direct interrogation (Part 6 of Article 352 of the Code of Criminal Procedure of Ukraine). At first glance, such a prohibition is absolute and there are no exceptions. However, according to Part 11 of Article 352 of the Code of Criminal Procedure of Ukraine, if a witness speaks unclearly or from his words it is impossible to conclude whether he admits the circumstances or denies them, the court has the right to demand from this witness a specific answer - “yes” or “no”. Taking into account the normative definition of leading questions - “questions, the wording of which contains an answer, part of an answer or a hint to it” (Part 6 of Article 352 of the Code of Criminal Procedure of Ukraine), it seems that Part 11 of Article 352 of the Code of Criminal Procedure of Ukraine refers specifically to leading questions.

It is noted that in the Anglo-American legal doctrine the essence of such a question is interpreted much more broadly. Thus, a leading question is considered to be one that is asked or formulated in such a form that it suggests or clearly hints to the witness about the desired answer that the person conducting the interrogation should receive, puts words into the witness's mouth that should be repeated, or reflects a material fact, and which can only be answered in the affirmative or negative, or points the witness to the statement that will best meet the interests of the party that puts them forward. This definition, it seems, most fully reflects the nature of this type of question.

As American proceduralists explain, asking leading questions during direct examination shifts the focus of attention away from the witness. When leading is done during direct examination, jurors stereotypically perceive the witness as unprepared, think that the subject of his questioning has something to hide, or believe that he lacks confidence in the witness. In addition, the witness's answers "yes" and "no" do not provide sufficient grounds for the jury to accept the witness's testimony as reliable.

It is argued that the adversarial model of criminal procedure establishes exceptions to the rule prohibiting leading questions during direct examination. A similar approach is observed in the criminal procedural regulation of some European states.

It has been noted that in practice a considerable number of questions are asked which are in fact leading and therefore, if objected to, are subject to removal by the presiding judge. However, the prosecutor and defence counsel should not object to a question as leading merely because it is so, but only when it has or may have a detrimental effect on the legal position of the party.

It is proposed to supplement the wording of Article 352 of the Code of Criminal Procedure of Ukraine with the following provisions: “During direct and repeated interrogations, it is not allowed to ask leading questions, except in cases where: 1) the question concerns the introduction to the interrogation or the beginning of a new topic of interrogation; 2) the question concerns a well-known or indisputable fact; 3) it is necessary to revive the witness’s memory; 4) due to intellectual disorders, a decrease in cognitive abilities, it is difficult for the witness to understand the essence of a question that is not leading; 5) a hostile or biased witness is being questioned; 6) the opposing party to the criminal proceedings does not object to the leading question; 7) the court grants permission to ask a leading question.”