The permissibility of asking witnesses leading questions in Polish judicial and arbitration practice
Whether witnesses can be asked leading questions is a vital issue for fair trials, but is treated inconsistently in Polish litigation practice. Inspiration can be sought from the rules that have worked for years in common-law jurisdictions.
Polish litigators generally share the belief that a witness should never be asked a leading question—that is, a question that suggests to the witness what the “right” answer should be. It is accepted that this rule applies regardless of the relation between the witness and the party or counsel examining the witness—whether it is a witness called by the same party to offer advantageous testimony, or called by the adversary to testify against the party whose counsel is examining the witness.
A ban on asking leading questions is also found in common-law systems. There it applies only when counsel for a party is examining a witness called by that party (during direct examination). But when interrogating a witness called by the other party (cross-examination), the advocate is not only permitted to ask leading questions, but indeed is expected to ask only leading questions. In cross-examination in the common-law tradition, counsel is essentially not asking a hostile witness to provide information, but is confronting the witness with certain factual statements, seeking to obtain confirmation of facts advantageous to the client or to expose errors or distortions in the testimony unfavourable to the client whose counsel is performing the cross-examination.
This difference in approach is not just a question of different traditions or styles. In Anglo-Saxon countries, the right to test the credibility of the adversary’s witnesses in cross-examination is regarded as one of the fundamental guarantees of a fair trial. So why in Poland (or other jurisdictions from the civil-law tradition) should this technique for examining the other party’s witnesses be prohibited? What is the source of this prohibition? And more basically, is it really as prohibited as practitioners seem to think?
Leading questions under Polish law
Art. 171 §4 of the Polish Criminal Procedure Code expressly prohibits asking witnesses leading questions. There is no comparable provision in the Civil Procedure Code, but it is commonly accepted that the same rule applies in civil trials in Poland.
Criminal Procedure Code Art. 171 §4 states, “It is impermissible to ask questions suggesting the answer to the witness.” Significantly, Art. 171 applies to interrogation of witnesses in general—whether at trial or during investigative proceedings. It lists leading questions alongside such interrogation tactics as “influencing a witness’s responses using compulsion or unlawful threats” and “using hypnosis or chemical or technical means affecting the witness’s mental processes.” Art. 171 generally addresses methods of questioning that restrict the free, autonomous response by the witness.
The commentaries take the view that leading questions are impermissible because the testimony obtained as a result of such questions is not the autonomous statement of the witness, but “is directed by the question asked” (D. Gruszecka in J. Skorupka (ed.), Commentary on the Criminal Procedure Code, 24th ed., Legalis 2017). There the author also attempts the difficult task of defining a leading question, which she says is a question that contains suggestions to the witness—either because of the grammatical form (where the question essentially contains the entire response sought by the questioner) or because of the wording (e.g. where the question assumes certain disputed facts that the witness has not confirmed). Such questions subject the witness to certain opinions and influence the witness’s reasoning, feelings, intentions and perceptions. That is why leading questions are prohibited.
Leading questions in the common-law tradition and in international arbitration
For similar reasons, leading questions are prohibited, for example in English law, when examining a “friendly” witness. In England this issue is governed primarily by the rules of professional conduct of barristers. A barrister who calls a witness who is willing to testify in favour of the barrister’s client and then hints to the witness what answers he should provide when testifying commits a disciplinary offence. Significantly, this applies not only to suggestions contained in questions put to the witness during the hearing but also, and perhaps primarily, to “coaching” of the witness before the hearing. Responses by a friendly witness in direct examination by the party calling the witness should be open-ended and autonomous, free of suggestions. This does not mean that the questioner should not try to steer the testimony of such a witness toward obtaining information from the witness relevant to the case and favourable to the client. But this must be done without hinting to the witness what the “right” answer is or influencing the substance of the witness’s testimony. This is a great art, which young lawyers in England are taught in workshops and polish in practice.
There is yet another reason it is impermissible for a lawyer to put leading questions to a witness aligned with his own client—namely, that this technique hurts his own client. When a friendly witness responds to leading questions, it undermines the witness’s credibility. The court will not give such responses the same weight as it would if the testimony were obtained properly, asking open-ended questions allowing the witness to answer spontaneously. A witness who is willing to testify to a party’s advantage is squandered if the party’s counsel asks the witness leading questions.
Questioning of a hostile witness—called by the adversary—works in the opposite way. In the common-law practice, questioning of a hostile witness consists of confronting the witness with statements unfavourable to the party that called the witness and inconsistent with what the witness said on direct examination. On cross-examination, opposing counsel will try to get the witness to admit that in his previous testimony he was mistaken, exaggerated, lied, ignored relevant issues or spoke off the topic. To this end, counsel asks the witness leading questions. But the aim is not to suggest an answer to the witness. Rather, it confronts the witness with certain statements and tests the candour and completeness of the witness’s testimony.
Significantly, in English procedure, a barrister cross-examining a witness unfavourable to his client is required to confront the witness with the factual allegations on which the client’s position will be based, if they lie within the scope of the witness’s testimony. Counsel cannot pass over a theory when examining a hostile witness and later raise the theory and claim that the witness was mistaken, lied or concealed facts about it. If counsel wants to assert such a thesis, the other party’s witness must first be given an opportunity to address the disputed issue. English lawyers say that counsel must “put the case to the witness.” It is accepted that this is required not only in view of the fairness of the trial and the reliability of the factual findings to be made, but also out of fairness to the witness.
The common-law practice has also shaped international arbitration practice. In international arbitration, the distinction between direct examination and cross-examination, with all of its ramifications, is commonly accepted and applied. Indeed, in arbitration, the right to question a hostile witness using typical cross-examination techniques should be regarded as essential. Arbitration is a confidential procedure before private institutions that are not vested with the authority of a court or the judicial means for compelling the participants in hearings to comply with their orders. In arbitration, witnesses typically feel freer than they do before a state court. Thus cross-examination techniques are an important tool for ensuring the reliability of testimony.
How does Polish practice work?
Notwithstanding the clear wording of Criminal Procedure Code Art. 171 §4, and contrary to the common belief that a prohibition on asking leading questions also holds in a Polish civil trial, Polish law also permits the use of leading questions to test the veracity of a witness. Commentator D. Gruszecka takes this view, citing the Katowice Court of Appeal judgment of 4 November 2004 (Case II AKa 337/04), but adds that leading questions can be asked only exceptionally.
In practice, leading questions are the order of the day in Polish courts—but they are primarily asked by judges, who assume the task of testing the credibility of witnesses through cross-examination. In essence, many witness interrogations heard in Polish courtrooms (particularly in criminal cases) are splendidly conducted cross-examinations by the court. But the situation where the burden of conducting cross-examination rests on the judge is not proper. It conflicts with the adversary principle. Such interrogations should be conducted instead by counsel.
But judges prevent counsel from conducting effective interrogation of witnesses, overruling leading questions even when necessary and justified. In fairness to the judges, this most often occurs at the vociferous objection by opposing counsel who are unhappy that leading questions are undermining the credibility of their witness. The same lawyer will often turn around and ask his own witness obviously leading questions, but sees no harm in doing so because to maintain appearances the leading question will be couched in the grammatical form of an open question, masking the plain suggestion included in the question.
Polish arbitration often follows Polish judicial practice in this regard. Consequently, during hearings before Polish arbitral tribunals, attempts to cross-examine a witness in the typical Anglo-Saxon fashion will often draw an objection from the party calling the witness, and this line of questioning will then be rejected by the arbitrators. Conversely, arbitrators will be nonplussed, and fail to respond appropriately, when there is an objection to counsel putting suggestive questions to the party’s own witness, concealed in the grammatical form of an open question.
The issue of the permissibility of asking witnesses leading questions is treated inconsistently and randomly in Polish practice, not based on a deep analysis of the problem. But this is an important issue with a great bearing on the fairness of trials.
It would be worthwhile to study the rules in this area that have worked well for many years in common-law countries, and draw inspiration from the experience there. Indeed, certain sound, universal principles developed there have long been echoed in rulings by Polish courts, where experienced judges intuitively realise when a leading question unethically seeks to manipulate the facts, and when, conversely, the use of leading questions is useful and desirable, raising the fairness of the trial and increasing the reliability of the evidence introduced at trial.
An impermissible leading question is a question used by counsel to hint to the party’s own witness how to testify. But questions used by counsel to confront a hostile witness with certain factual statements, to test the accuracy and completeness of the witness’s testimony, are a proper and ethical tool for determining the facts and verifying the credibility of the witness’s testimony. There is no reason this approach cannot also be followed in Polish litigation and arbitration practice.
Stanisław Drozd, Dispute Resolution & Arbitration practice, Wardyński & Partners