The Art of Direct Examination in Japan: Why Leading Questions are (Generally) Taboo and the Power of the '5W1H' Method

Direct examination (shu jinmon - 主尋問) serves as the bedrock upon which a party presents its affirmative case in a Japanese criminal trial. Its primary objective is to allow a witness to convey their account of relevant facts to the court in a clear, credible, and persuasive manner, using their own words. Central to achieving this is the advocate's questioning technique. While seemingly straightforward, a common pitfall is the overuse of leading questions (yūdō jinmon - 誘導尋問). Understanding why leading questions are generally proscribed in Japanese direct examination and embracing alternative methods, such as the "5W1H" principle, is crucial for effective advocacy.

Understanding Leading Questions in the Japanese Legal Context

A leading question is one that suggests the desired answer to the witness or is phrased in such a way that it can be answered with a simple "yes" or "no," thereby incorporating the lawyer's assertion into the query. For instance, instead of asking "What color was the car?", a leading question would be "The car was red, wasn't it?".

Why are leading questions generally prohibited in direct examination in Japan?

1. The Witness is the Testifier, Not the Lawyer: The fundamental principle is that the testimony should emanate from the witness's own recollection and perspective. Leading questions subvert this by allowing the lawyer to effectively "testify," putting words into the witness's mouth. The information conveyed becomes the lawyer's narrative, merely affirmed by the witness.
2. Impact on Credibility and Authenticity: Testimony elicited through a series of leading questions often appears less authentic and less credible to the fact-finders. Professional judges and, significantly, lay judges (saiban-in - 裁判員) in Japan's mixed tribunal system, generally place higher value on testimony that flows naturally from the witness in their own words. A lawyer-driven narrative can appear manipulative or coached.
3. Risk of Inaccuracy and Suggestibility: Leading questions can inadvertently distort a witness's memory or encourage them to agree with propositions they do not fully or accurately recall, especially if the witness is impressionable, nervous, or eager to please. This can compromise the integrity of the factual record.
4. Formal Prohibition: The Japanese Rules of Criminal Procedure (specifically Rule 199-3, Paragraph 3) generally prohibit leading questions during direct examination, reflecting the aforementioned concerns.

The Problem with Over-Reliance on Leading Questions in Practice

Despite the general prohibition, legal practitioners in Japan have, at times, been observed to be somewhat tolerant of leading questions in direct examination, or perhaps lacked a keen, consistently applied awareness of what constitutes an improper leading question versus a permissible one. This can stem from various factors, including a desire for efficiency or an attempt to tightly control a witness's narrative.

However, the consequences of such a practice can be detrimental:

• Passive Witnesses: The witness becomes a mere validator of the lawyer's statements rather than an active narrator of their experiences.
• Lawyer-Driven Narratives: The story presented to the court is filtered heavily through the lawyer's lens, potentially missing nuances or details the witness might have offered if questioned more openly.
• Diminished Persuasive Impact: Especially before lay judges, who are tasked with evaluating facts based on their common sense and everyday experience, a narrative that seems overly constructed by the lawyer may fail to resonate or convince.
• Vulnerability to Objections: A direct examination riddled with leading questions is susceptible to objections from opposing counsel. As illustrated in some Japanese advocacy training materials, if objections to leading questions are consistently and successfully made, the examination can completely lose its flow and coherence, frustrating the attempt to present a clear story.

Exceptions to the Rule: When Leading is Permissible on Direct Examination

The prohibition against leading questions on direct is not absolute. Japanese procedural rules acknowledge situations where they are permissible and even efficient. Rule 199-3, Paragraph 3 of the Rules of Criminal Procedure outlines several exceptions:

1. Preliminary Matters: Questions relating to the witness's identity, background, relationship to the parties or the case, and other foundational information that is not in dispute.
2. Undisputed Facts: Matters that are clearly not in contention between the prosecution and the defense. Rule 198-2 (introduced in 2005 revisions) also encourages the use of leading questions for undisputed facts to streamline proceedings.
3. Hostile, Reluctant, or Evasive Witnesses: If a party's own witness demonstrates clear hostility, unwillingness to testify, or is overtly evasive.
4. Witnesses with Difficulty Testifying: This can include children, elderly witnesses, or individuals with cognitive, memory, or communication impairments. However, even in these cases, Rule 199-3, Paragraph 4 cautions that the method of leading should not unduly influence the witness's testimony.
5. Refreshing Recollection (with significant caveats): If a witness has a genuine lapse of memory regarding a specific point, leading questions might be used to try to jog their memory. However, using the witness's own prior narrative statement (like a chosho) to "refresh" their memory during direct examination is heavily restricted by Rule 199-11. This is to prevent the backdoor introduction of hearsay and to avoid the prior statement improperly substituting for live testimony.
6. Other "Special Circumstances" (tokubetsu no jijō): When deemed necessary by the court for the proper conduct of the examination.

The true skill for an advocate lies in discerning when these exceptions genuinely apply and not using them as a pretext to lead a cooperative witness through the substantive, disputed portions of their testimony.

The Preferred Alternative: Open-Ended Questions and the "5W1H" Method (Go Daburyū Ichi Eichi)

The most effective and legally sound method for conducting direct examination is to use open-ended, non-leading questions that allow the witness to narrate the events and facts in their own words. A fundamental framework for formulating such questions is the "5W1H" principle, known in Japan as go daburyū ichi eichi (５ダブリュー１エイチ) or sometimes referred to by the more traditional rokka no gensoku (六何の原則 - the six elements of inquiry). These are:

• Who (dare ga - 誰が): "Who was present at that time?" "Who did you speak with?"
• When (itsu - いつ): "When did this event occur?" "When did you first notice...?"
• Where (doko de - どこで): "Where did this take place?" "Where were you positioned when you observed this?"
• What (nani o - 何を): "What did you see?" "What did you hear?" "What happened next?" "What actions did you take?"
• Why (naze - なぜ): This "W" is used more cautiously in direct examination compared to its near-total prohibition in cross-examination (when challenging an opponent's witness). In direct, it can be used to elicit the witness's own stated reasons or motivations for their actions, provided it's from their direct knowledge (e.g., "Why did you decide to go to that location?"). It should not be used to solicit speculation.
• How (donoyōni - どのように): "How did that happen?" "How did the machine operate?" "How did you feel at that moment?" (if relevant and admissible).

Benefits of the 5W1H Method:

• Encourages Narrative Responses: It prompts the witness to provide fuller, more descriptive answers in their own vocabulary and sentence structure.
• Builds a Comprehensive Account: Systematically covering these elements helps in constructing a chronological and understandable story for the court.
• Avoids Suggesting Answers: By its nature, this method steers clear of embedding the desired answer within the question.
• Engages Fact-Finders: It allows judges and lay judges to hear the story unfold more organically, as if listening to a firsthand account, which can be more engaging and persuasive.

Developing Proficiency in Non-Leading Direct Examination

Mastering the art of non-leading direct examination requires conscious effort and consistent practice. It is often described as more challenging than it appears.

• Heightened Awareness: Advocates must cultivate a constant awareness of their questioning style, actively choosing open-ended formulations over leading ones for substantive matters.
• Dedicated Practice:
  • Mock Trials and Training: Participating in advocacy workshops and mock trial sessions with constructive feedback is invaluable.
  • Client Interviews: Using the 5W1H approach to elicit a client's full story during consultations serves as excellent real-world practice.
  • Everyday Application: Some suggest practicing by asking open-ended questions in everyday conversations, for instance, when talking to family members about their day, to build the habit.
• Thorough Preparation: While the questions themselves are open, this does not mean the examination is unprepared. The lawyer must have a clear roadmap of the topics to be covered, the key facts to be elicited to support the case theory, and the exhibits to be introduced. The 5W1H questions are then strategically employed to guide the witness through this pre-planned structure.

Structuring the Narrative: Beyond Individual Questions

While the 5W1H framework is excellent for crafting individual non-leading questions, a successful direct examination also demands a logical overall structure. This might be chronological, topical, or a combination. Furthermore, smooth transitions are essential to guide the witness (and the court) coherently from one part of the testimony to the next. These transitional phrases or questions (e.g., "Now, I'd like to turn your attention to the events of [specific date/time]. What, if anything, happened then?") should also be non-leading regarding the substantive facts to follow.

Conclusion

In the realm of Japanese direct examination, prioritizing the witness's authentic voice through the consistent use of non-leading, open-ended questions is fundamental to building credibility and presenting a compelling case. While leading questions have a limited, defined role for undisputed facts or preliminary matters, an over-reliance on them for substantive, contested issues is a common pitfall that can significantly diminish the testimony's authenticity and persuasive power. The "5W1H" method provides a robust and effective framework for eliciting a comprehensive, witness-driven narrative. For legal professionals operating in or engaging with the Japanese legal system, cultivating a heightened consciousness of these questioning techniques and dedicating effort to their practice is essential for mastering the art of direct examination, particularly in an era that includes lay judge participation.