Leading questions in criminal proceedings: some aspects of the concept

Abstract

The article analyzes some theoretical and practical aspects of the psychological and cognitive nature of the leading questions in criminal proceedings. It is stated that neither legislation nor the theory contains a single acceptable definition of a "leading question". This is explained by the fact that it is almost impossible to give a clear definition of the aforementioned questions in criminal proceedings (even though the Ukrainian legislature's attempt to define this notion was rather unsuccessful (Article 352, part 6 of the CCP). It is emphascized on the correctness of the widespread scientist’s opinion that the main dander in a leading question is its regular inadmissible suggestive power, which may be due not so much to the information contained in the formulation of the question as to other factors: the context of the question's voice; facial expressions; gestures; intonation of the inquirer or other non-linguistic impurity in language considered by non-verbal forensic science. It is supported by the conclusion that there is still no single scientific position on which questions are inherently suggestive. It is stated that in order to improve the situation with the use of leading questions in criminal proceedings, it is first and foremost necessary that criminal procedural law should differentiate between the most common types of leading questions and only then do prohibit some of them, regardless of the stage of the trial. Instead, the latter works the opposite, recognizing that all the questions raised are inadmissible if it relates primarily to direct interrogation. In this way, the legislator, in the author's opinion, significantly limits the freedom of choice of interrogation tactics to both the investigator and the court.
 Therefore, the need and admissible possibility of maximizing the use of leading questions during interrogations and other evidentiary proceedings in the pre-trial investigation and judicial review of criminal cases is justified. The arguments for the realization of this possibility are presented, in particular: to determine the psychological and scientific criteria according to which a particular formulation of a question can be regarded as containing an unacceptable suggestive influence on the interviewee; to develop a methodological mechanism for establishing (diagnosing) the admissible level of the suggestive influence of a leading question, since the question of the admissibility of evidence depends on the content of the categorical nature of this variety of questions; more clearly (normatively and tactically) differentiate the limits of the lawfulness of coverage by a category of leading questions in case of announcement to the interviewee of a previously given testimony, presentation of evidence to him and the use of a number of other tactical techniques that are based in one way or another on the effect of a suggestion. In fact, all of them, in general, are based on acquaintance of the interviewee with a certain accentuated - meaningful part of the information established by the criminal proceedings.