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ture to the attestation, and says he is thereby sure that he saw CHAP. VII. the party execute the deed, that is a sufficient proof of the execution of the deed, although the witness should add that he has no recollection of the fact of the execution of the deed" (1).

In fact, cases of this description are of the most ordinary occurrence, and particularly when arising in the course of any extensive business, whether private, or more particularly perhaps official; when the nature of the transaction would have been. likely to make no impression on the mind of the witness, or none but the most evanescent (2).

Let us now turn to the mode in which the testimony of the Form of witnesses is to be obtained. And here the subject of consideration interrogation.

is the form of the interrogation.

The great canon on this is that, when the disputed ground is Not to be once arrived at, the examination must not be what is called leading. "leading,"—that is, framed in a shape to suggest to the mind of the witness the answer desired. It is obvious that a question, skilfully thrown into the right form of suggestion, could hardly fail, in the case of a pre-instructed and willing witness, to provoke the answer sought.

Is

"A question," says Mr. Bentham, "is a leading one when it indicates to the witness the real or supposed fact which the examiner expects and desires to have confirmed by the answer. not your name so and so ?-Do you not reside in such a place ?— Are you not in the service of such and such a person ?-Have you not lived so many years with him?

"It is clear that, under this form, every sort of information may be conveyed to the witness in disguise. It may be used to prepare him to give the desired answers to the questions about to be put to him; the examiner, while he pretends ignorance, and is asking for information, is, in reality, giving instead of receiving it" (3).

applicable

This prohibition of all leading interrogation is a principle of Principle the Courts no less of India than of England; and as respects alike to the Mofussil Criminal Courts of all the three Indian presiden-England and cies, leading interrogation was in express terms excluded by the

(1) Starkie on Evidence, p. 178.

(2) According to Mahomedan Law,-"A man must not swear to his own signature, unless he remembers the act of signing.”—Beaufort's Digest of Criminal Law, p. 118.

(3) Judicial Evidence, p. 131.

CHAP. VII. Regulation Law under which they were governed (1). The oldest of the Regulations on the subject (that governing the Presidency of Bengal), and which may be taken in principle as a sample of the others, provided:" In the examination of witnesses, leading questions suggesting an answer, or having a tendency to such suggestion, are to be carefully avoided, and the interrogatories to them are to be proposed in such general terms as may bring forth all the information they possess, and lead to a discovery of the truth."

Leading up to

disputed

ground.

Up to the point of dispute, however, that is, while the examination is introductory only to what is material,—the witness may be led. Were it otherwise, a very unnecessary consumption might be had of the time of the Court, and a great infliction practised on its patience.

"It is often a convenient way of examining," says Mr. Alison, "to ask a witness whether such a thing was said or done, because the thing mentioned aids his recollection, and brings him to that stage of the proceeding to which it is desired he should dilate. But this is not always fair; and when any subject is approached, on which his evidence is expected to be really important, the proper course is to ask him what was done, or what was said, or to tell his own story. In this way also, if the witness is at all intelligent, a more consistent and intelligible statement will generally be got than by putting separate questions " (2).

So Mr. Starkie :-" When the time and place of the scene of action have been once fixed, it is generally the easiest course to desire the witness to give his own account of the matter, making him omit, as he goes along, an account of what he has heard from others, which he always supposes to be quite as material as that which he himself has seen. If a vulgar, ignorant witness be not allowed to tell his story in his own way, he becomes embarrassed and confused, and mixes up distinct branches of his testimony. He always takes it for granted that the Court and Jury know as much of the matter as he does himself, because it has been the common topic of conversation in his own neighbourhood; and therefore his attention cannot easily be drawn so as to answer particular questions, without putting them in the most direct form. It is difficult, therefore, to extract the important parts of his evidence

(1) Bengal Regulation IV of 1727, s. 6; Madras Regulation VII of 1802, s. 18; Bombay Regulation XIII of 1827, s. 36:-repealed by Act XXVII of 1862.

(2) Alison's Practice of the Criminal Law of Scotland, p. 546.

piece-meal; but if his attention be first drawn to the transaction CHAP. VII. by asking him when and where it happened, and he be told to describe it from the beginning, he will generally proceed in his own way to detail all the facts in the order of time" (1).

pointing the

Unfortunately, however, it often happens, and with native Necessity for witnesses in India especially, that the witnesses are not of the evidence. class from whom this volunteer statement can be so readily obtained, at all events within any reasonable convergence to a point. It becomes essential, accordingly, to indicate a good deal to the mind of the witness the point to which his evidence is to be addressed; and the great practical difficulty always is to effect this, and at the same time to avoid making the interrogation leading.

leading.

But the determination of what is and what is not leading is Difficulty in in itself frequently one of difficulty, whenever the test has to be defining what applied to any particular question. And the practical difficulty on the one haud is to secure that all the essential portion of the narrative be given in its entirety; and on the other, to prevent a needless prolixity of statement.

"It is not a very easy thing," says Mr. Starkie, "to lay down. any precise general rule as to leading questions. On the one hand, it is clear that the mind of the witness must be brought into contact with the subject of enquiry; and on the other, that he ought not to be prompted to give a particular answer, or to be asked any question to which the answer 'Yes' or 'No' would be conclusive. But how far it may be necessary to particularize in framing the question, must depend on the circumstances of each individual case" (2).

"No" test.

The "Yes" or "No" test suggested by Mr. Starkie is not, The "Yes" or however, it is submitted, a very accurate, and at all events must not be taken as an universal, one. There are many instances in which it would be the natural response, without the question which evoked it being leading. Thus, suppose it was required to show the presence of the witness on any particular occasion, he might be asked-" Were you present on that occasion?"-notwithstanding the natural answer to the question might be "Yes," or "No," it could hardly be requisite in such a case to go the roundabout way of asking-" Who was present?" There might have been a hundred people there; and the form of

(1) Starkie on Evidence, p. 167.
(2) Ibid.

CHAP. VII. the question in this shape might leave the witness to exhaust the series-in other words, to tell over the ninety and nine-before he arrived at himself. On the other hand, all such questions as— "Did one say so and so?"-or, "Did he do so and so?"—while obviously capable of being answered by the court-"Yes," or "No,"-would, by suggesting what it was required of the witness to state, naturally provoke the reply.

Tendency to

convey legal

An illustration may be supplied from the daily practice of all Courts, where the question is one of personal identification. If there be no ground of suspicion, the individual is pointed out to the witness, and he is asked directly-" Is that the party?" and the answer is the simple-"Yes," or "No." Let the witness, however, be suspected, the question would not be allowed to be put in that form; and the witness would be told to look round the Court, and point out the individual in question.

The invitation to the answer-"Yes," or "No"-would in truth be leading or not, according to the circumstances.

One great test as to whether a question were to be regarded result of facts, as leading, would be its tendency to elicit an answer conveying rather in itself the legal result of the facts, than a statement of the facts themselves, from which the Court was to draw the result. Thus, if it were a question of some given arrangement come to at a particular meeting, the witness ought to be interrogated, not as to the result which he himself ascribed to the meeting,—that is to say, whether such and such was then arranged, but generally only as to the detail of what took place, leaving it to the Court to draw the legal inference from the narrative.

Suggestions to memory.

It is necessary, however, to distinguish between a leading course of interrogation, and one, where the emergence arises, merely suggestive; and it is obvious that, while (to borrow Mr. Starkie's expression cited above) "the mind of the witness must be brought into contact with the subject of enquiry," when once there, the examination must be assisted, not only with such checks upon wandering, but with such suggestions to recollection, as occasion might require. Thus, Mr. Best says:-" A question is objectionable as leading when it suggests the answer, not when it merely directs the attention of the witness to the subject respecting which he is questioned" (1).

(1) Best on Evidence, p. 797.

Mere suggestions in the way of stimulants to the memory CHAP. VII. accordingly would not fall within the category of leading questions, and may be made wherever the incapacity to answer sufficiently appears to arise either from a want of recollection, or the absence of some connecting link with the subject of examination. Thus, the names of persons, or places, or dates, may be suggested, and sometimes particular transactions, or connecting circumstances. Though a touchstone only to memory, they might awaken the whole association in the mind; just as in music to strike one chord would be to recall the entire tune.

In a question, for instance, as to the component members of a firm, the names might be repeated, the witness stating that he could recognize them on repetition, but could not rehearse them from memory. So he might be asked as to his knowledge or recollection of a particular date or circumstance, and he might be led from that to more detailed allusions as to occurrences in connection with it. Again, some prior witness may have made a given statement, which another might be called to contradict (1). Here the statement must be narrated to the latter, or he would be at fault to what to address his denial; and passages even of a lost letter might be suggested to him. So a witness, unable to detail an entire conversation, might yet have sufficient recollection to negative certain particular statements as part of it. Here the particular statements might be put to him, and he might be asked if they were in truth made.

"It may frequently happen," says Mr. Starkie, " that a witness, unable to detail even the substance of a particular conversation,

(1) Mr. Best (p. 798) classes this as one of the exceptions to the rule against leading. He says:-"Where a witness is called to contradict another as to expressions out of Court which he denies having used, he may be asked directly, Did the former witness use such and such words? The authorities are not quite agreed as to the reason of this exception, and some strongly contend that the memory of the second witness ought first to be exhausted by asking what the other aid on the occasion in question." As regards the reason and the application of the rule, Mr. Taylor (Vol. II, p. 1217) says:-" This rule seems only to apply to such expressions as in themselves are not evidence in the cause; the object of relaxing the general rule being simply to exclude the other parts of the conversation which would not be admissible." In Edmonds v. Walter (3 Starkie's Reports, p. 8), the particular words were allowed to be put, the counsel's object being merely to contradict the prior witness. But in Hallett v. Cousens (2 Moody & Robinson), p. 238, counsel was not allowed to do so, his object apparently being not so much to contradict the prior witness as to prove the conversation as evidence in the case. In disallowing the question, Erskine, J., stated the object of putting the particular words as quoted from Mr. Taylor, who, in the passage above cited, adopted that Judge's words. In Courteen v. Touse (1 Campbell, p. 44), Lord Ellenborough ruled that, after exhausting the witness's memory as to the contents of the letter, he might be asked if it contained a particular passage recited to him which had been sworn to on the other side.

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