Rethinking leading: the directive, non-directive divide

Abstract

There is a dearth of legal and psychological consideration of the leading question during the trial process. This article argues the current approach to the leading question does not assist or promote the accuracy of witness evidence, particularly witnesses likely to be affected by such questions: children. We advance a revised definition of leading, differentiating between directive and non-directive questions. Directive questioning is the primary mischief to eliciting accurate witness testimony; we propose its presumptive prohibition. Non-directive leading is of less concern and should be the leading form open to use in cross-examination.