no impression on the mind of the witness, or none but the most evanescent.*

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

Form of interrogation.

Not to be leading.

The great canon on this is, that when the disputed ground is once arrived at, the examination must not be what is called 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.

"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. Is 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."†

This prohibition of all leading interrogation is a principle of the Principle applicable Courts, no less of India than of England; and alike to England and India. as respects the Criminal Courts of all the three Indian Presidencies, leading interrogation is in express terms excluded by the Regulation Law under which they are governed.‡ The oldest of the Regulations on the subject (that governing the Presidency of

* According to Mahomedan law-"A man must not swear to his own signature, unless he remembers the act of signing."-Beaufort's Digest, 1857 p. 118.

† Bentham on Judicial Evidence, p. 131.

Bengal Regulation IV. of 1727, Section 6; Madras Regulation VII. of 1802, Section 18; Bombay Regulation XIII. of 1827, Section 36.

Bengal) and which may be taken in principle as a sample of the others, provides:-" 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."

Up to the point of dispute, however, that is, while the examination. Leading up to disputed is introductory only to what is material,—the ground. 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 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."*

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, ig, norant 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

* Alison's Practice, 546.

without putting them in the most direct form. It is difficult therefore to extract the important parts of his evidence piecemeal; but if his attention be first drawn to the transaction 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."

Unfortunately however it often happens, and with Native witnesses Necessity for pointing in India especially, that the witnesses are not of the 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.

what Leading.

But the determination of what is, and what is not, leading is in itself Difficulty in defining frequently one of difficulty, whenever the test has to be applied to any particular question. And the practical difficulty on the one hand 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 an"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."†

swer

The "Yes or No" test suggested by Mr. Starkic, is not however, it is submitted a very accurate, and at all events must not be taken as an universal, one. There are

The " Yes or No" test.

* Starkie on Evidence, p. 167.

† Ibid.

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 round-about way of asking :-" Who was present?" There might have been a hundred people there; and the form of 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 curt-" Yes or No,"-would, by suggesting what it was required of the witness to state, naturally provoke the reply.

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 as leading, would be its tendency to elicit an answer conveying rather in itself the legal result of the

Tendency to convey

legal result of facts.

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.

It is necessary, however, to distinguish between a leading course of interrogation, and one, where the emergence arises, Suggestions to memory. 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.

Mere suggestions in the way of stimulants to the memory 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 touchtsone 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 accordingly 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 them to more detailed allusions as to occurrences in connection with them. Again, some prior witness may have made a given statement which another might be called to contradict. 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, may yet be able to negative with confidence proposals, offers, statements, or other matters sworn to have been made in the course of a conversation. In