まず、私以外の弁護士が誘導尋問についてどのように理解しているのかの一例を示します。
 別エントリのコメント欄などで何回か紹介されている伊東良徳弁護士のサイトです。
 「庶民の弁護士伊東良徳のサイト

 このページは、「民事裁判の話」とありますが、刑事裁判でも同じことです。

 誘導尋問(ゆうどうじんもん)というのは、証人に一定の答を示して(暗示して)質問することですが、法律家の業界では、証人がYESかNOで答えられる質問をいいます。

 「誘導尋問(ゆうどうじんもん)というのは、証人に一定の答を示して(暗示して)質問することですが、」というのは誘導尋問の意義ないし意図を表わしています。
 「法律家の業界では、証人がYESかNOで答えられる質問をいいます。」というのは、誘導尋問の方法を説明したものです。
 伊東弁護士のこの説明は、誘導尋問の説明として極めて常識的なものだと思います。

 訴訟の証人尋問において、相手方の主尋問を聞いている弁護士は、常に相手方の質問が誘導尋問であるかどうかに注意を払っています。
 なぜかといいますと、伊東弁護士が指摘しているように、誘導尋問に対してなされた証言は信用性が低いことから、そこは反対尋問における突っ込みどころの候補になるからです。
 その場で異議をいうかどうかはケースバイケースです。伊東弁護士が述べているように異議を言わないほうがいい場合もありますし、いったほうがいい場合もあります。証人を動揺させるために異議を言う場合もあります。

 弁護士が(検事も同じですけど)、相手方弁護士(または検察官)の質問が誘導尋問であるかどうかを判断する基準は、相手方の質問がYESかNOで答えられる質問(またはそれと同程度に二者択一的な質問)かどうかです。
 YESかNOか(またはAかBか)でしか答えられない質問の場合はやむを得ませんが、そうでない質問の場合は誘導尋問と判断します。
 次に、その誘導尋問が許容されるものかどうかを判断します。
 許容されない誘導尋問だと判断される場合には、その誘導尋問に対する証言をさせてはならないと認められれば間髪を入れずに異議を述べます。
 後で反対尋問でじっくりと信用性を弾劾しようと思えば、メモをとったりして内心でニヤリと笑いながら証言を聞き続けます。

 では、なぜ、「法律家の業界では、証人がYESかNOで答えられる質問」を誘導尋問と言うのでしょうか?

 それは、誘導尋問は、YESかNOで答えられる形式の質問をすることによって、その質問に対する回答(証人尋問の場合は証言)を限定し、限定された特定の答に回答(証言)を誘導しようとするものだからです。

 例をあげます。
 傷害事件で、犯人が被害者を殴るところを見ていた目撃者の証人尋問を考えてみます。
 「犯人が着ていた上着の色は何色でしたか?」というのが誘導ではない尋問です。
 この質問に対する答には、無限のバリエーションをもった回答が可能です。
 証人の記憶の程度と内容に応じた証言が期待できます。
 あいまいな記憶であれば、「赤っぽい色だっと思いますが・・・」とか
 明確な記憶があれば、「濃い目のピンクでした。」とか

 これに対して、「犯人が着ていた上着の色は赤でしたか?」というのが典型的な誘導尋問です。
 質問の論理的な意味は、赤か否かを聞いています。
 したがって、この質問に対しては、赤の場合は「はい」、赤でない場合は「いいえ」という答が論理的に対応した回答になります。
 もちろん、証人が質問の趣旨を超えて、「赤色というよりは濃い目のピンク色でした。」と答える場合もありますが、それは答え方の問題であって、誘導尋問というのは質問の仕方の問題なのです。

 そして、この誘導尋問に対して「はい」と答えた場合にどうなるかと言いますと、誘導尋問でない質問の場合には明らかになるはずの記憶の確実さの程度や赤色と言語表現される色彩の中でのニュアンスの違いなどがすべて捨象されてしまいます。
 つまり、誘導尋問に対する答えは真実から遠ざかる危険を常にはらんでいます。
 言い換えると、誘導尋問に対する証言の信用性は低いということになります。
 ということは、主尋問で誘導尋問をするということは、尋問者の尋問技術が下手くそか、証言者の記憶に信頼が置けないかのどちらかまたはその両方だということになるのです。

 もう一度整理しますと、本来は多様な回答があり得る質問内容について、その回答が限定される形式の質問をすることによって、回答者の回答を質問者が限定した回答に誘導するような質問を誘導尋問と言うのです。
 つまり、YESかNOかで答えるべきではない質問内容についてYESかNOかで答えられる形で質問することは、YESまたはNOの回答(通常はYES)に誘導する誘導尋問に他ならないと言えるのです。

 この問題について、小倉秀雄弁護士は、「誘導尋問」の「誘導」とは何かにおいて

世の中には、回答の範囲を限定することと、特定の回答へと誘導することとの差が理解できない人がいるみたいですね。ひょっとしたら、主尋問において何故に誘導尋問が原則禁止されるのか理解できていないかも知れません。

と述べています。

 私のこのエントリをお読みの読者にはすでに説明の要はないと思いますが、回答を限定する質問をすることこそが、その限定範囲に回答を誘導しようとする誘導尋問であるわけです。
 「主尋問において何故に誘導尋問が原則禁止されるのか理解できていない」というのが小倉弁護士のことであることは誰の目にも明らかだろうと思います。

 なお、小倉弁護士のエントリで例示されている例はいずれも誘導尋問の検討のための例としては全く不適切です。

 もしもし。こちらは佐藤というものですが。田中様のお宅でしょうか。

について、なにやらわけのわからない説明をくどくどと述べていますが、こんなものは、佐藤さんが電話のかけ間違いでないかどうかを確認しているだけで、誘導尋問でないことは明らかです。
 この場合の佐藤さんの関心事は、自分のかけた電話が間違いなく田中さんのところにつながっているかどうかだけであって、YES・NO以外にはありえない質問です。

 なお、この場合、疑問詞を用いて、
もしもし。こちらは佐藤というものですが。どちらのお宅でしょうか。

と質問した場合には、答えてもらえない可能性が高まります。

 小倉弁護士は、こんなことも言っていますが、自分で言っていることがおかしいとは気づかないのでしょうか?
 電話でこんなことを実際に言う人がいればお目にかかりたいものです。
 小倉弁護士は、自分の主張を基礎づけようとして、非現実的な脳内設定を持ち出すことがしばしばあります。「la_causette」の過去ログを読めばわかります。おひまな方はどうぞ。

今月号のゲームラボ、在庫ありますか。

も同じです。
 質問者としては、今月号のゲームラボの在庫の有無なのですから、「ありますか?」と聞くのが当然であり、それ以外の質問方法は普通は考えられません。
 ある質問について誘導尋問である、というためには、誘導尋問とは言えない質問の仕方が別にあるということが必要です。

 要するに、小倉弁護士は、誰も誘導尋問とは考えない例を持ち出して、「これを誘導尋問というのはおかしい。」と言っているようですが、もうそれだけ誘導尋問とは何かを理解していないことが明らかです。

 なお、以上は、事実の確認を主眼とする証人尋問を念頭において書いてきました。

 これに対し、意見を戦わせる議論の場における誘導尋問というのは少しニュアンスが違うかも知れません。
 しかし、質問者が相手の回答(意見)を特定方向へ誘導しようとして二者択一の回答を求める場合も誘導尋問と言って妨げないと思います。

 小倉弁護士の

 野党の共同提案にかかる刑事訴訟法改正案には無条件で賛成されますか?

などはその典型です。
 小倉弁護士は、乗る舟は選んだ方が......

 野党の共同提案にかかる刑事訴訟法改正案には無条件で賛成されますか?

が「誘導尋問」に当たるということの説明を具体的にしないというのは,それが明るみになった場合には,研究者としての評価は大いに失いそうです。

と言っています。
 私は、すでに「無条件で賛成する」ということについて

 しかし、「無条件に賛成しますか?」という質問になると、「反対の理由なんかどうでもいいんだ、無条件に賛成するかどうかを聞いているんだ。」という意味の質問になってしまいます。  これは明白に誘導尋問です。

と述べているのですが、これだけでは小倉弁護士には理解できないようですので、もう少し説明しておきます。
 もうこれ以上説明しなくても分かっている、という方は読み飛ばしてください。

 小倉弁護士は、「誘導尋問」の「誘導」とは何かにおいて

 そして、提案の内容を示した上で、その提案に対する賛否を求めるということはしばしば行われますが、その多くは、「無条件で」という言葉を敢えて付すかどうかはともかくとして、「特に修正したり条件を付したりすることなく、そのままの状態でその提案に賛成するのか否か」について回答を求めるものです。

 このように言っています。
 「『無条件で』という言葉を敢えて付すかどうかはともかくとして、」と言っています。
 小倉弁護士にとって、「無条件で」という言葉があってもなくてもその意味は同じだというのでしょうか?
 信じられないくらいの論理性軽視です。ほとんど無視ですね。

 「無条件で」がない場合の質問、すなわち「野党の共同提案にかかる刑事訴訟法改正案には賛成されますか?」という質問に対しては、
 賛成するにしても「全面的に賛成です。」という人もいれば、「おおむね賛成です。」、「まだ詰めが甘い。」などという回答も当然想定されます。反対意見も同様です。かなり多様の答を許容する質問です。
 しかし、「無条件で」がつくと意味が変わります。
 「無条件で賛成する。」という表現は、日本語の通常の解釈として、一切の留保も異論もなく、議論の余地なく全面的に賛成する、という意味だと解されます。
 とすると、「無条件で賛成しますか?」という質問は、「議論の余地なく全面的に賛成しますか?」という意味であり、その質問に対する論理的に対応する回答は、YESかNOかです。
 つまり、「無条件に」という条件をつけることにより、回答をYESかNOかに限定しています。

 そして、小倉弁護士は、明らかに私の答えをNOつまり、「全面的に賛成することはしない」という反対意見に誘導しようとしています。
 なぜなら、私は、これまですべての制度にはメリットもあればデメリットもあると何度も言っていますから、どんな制度や法案であれ、無条件に賛成することなどありえないのであり、そのことは小倉弁護士も十分承知のはずです。
 その上で、私に民主党の可視化法案に反対させて、私が可視化そのものに反対しているかのような印象を与えようとしたことは疑いの余地がありません。
 小倉弁護士は、誘導尋問の要件として、

①発問者がその望む回答を回答者に明示又は暗示する、②回答者が発問者の意を酌んで発問者の望むとおりに回答することを発問者が期待できる、という2つの要素が必要です。

言っていますが、これはまさくし小倉弁護士の「野党の共同提案にかかる刑事訴訟法改正案には無条件で賛成されますか?」という質問は、まさにこの二つの要素を満たします。

 この私の意見に対して、小倉弁護士は「単なる邪推です。」と言いたいようですが、邪推ではない証拠を一つ提示できます。

 それは、小倉弁護士は、私が小倉弁護士に返した

小倉先生は、改正案に無条件に賛成されるのですか?

という質問(最近の司法研修所では,「誘導尋問」の範囲が広がったのですか?のコメント欄)に答えないことです。
 私はすでに最小限度の見解を表明しています。
 小倉弁護士が法案に対する議論をするのであれば、当然小倉弁護士自身の考えを表明すべきです。
 それをしないということは最初から議論するつもりなどなく、単に私から「民主党の改正案(イコール可視化←小倉論理)に反対である。」という言葉を引き出したいだけだということが明らかです。これは、小倉弁護士の発言をこれまで見てきたいわゆる小倉ヲチャの共通認識だと思います。

 小倉弁護士としても、「無条件に賛成する。」とは言いにくいでしょう。
 かといって、「無条件に賛成できない。」と答えれば、私と同じ土俵に乗ることになりますから、私を一方的に批判できなくなります。
 だから、答えないのです。そうですよね。小倉先生。
 今から、答えても遅すぎますよ。
 何しろ、あなたは、回答が遅れた私に対して、「回答にそれなりの時間がかかるのは当然です。」と言っているのに、「回答を拒否している」と言ったのですからね。

追記
 小倉秀夫弁護士が、このエントリのはてなブックマークコメントで次のようなコメントをしています。

松尾先生の刑事訴訟法の教科書等を見ると,誘導尋問かどうかは,はいかいいえで答えられる等の形式的な面で決まるのではないと書いてあったと思いますけど。

 「教科書を見ると」~「思いますけど」というのはどういう日本語なんでしょう?
 見たんでしょうか?うろ覚えで書いているだけなんでしょうか?
 判例紹介について、サイテーションがどうのこうのと言っていた同じ人間のコメントとは思えませんね。

 さらにひどいのは小倉弁護士の読解力です。毎度のことですが。
 このコメントを読むと、小倉弁護士は、どうやら私が「誘導尋問かどうかは,はいかいいえで答えられる等の形式的な面で決まる」と言っているように理解しているようです。(本当は、私が「誘導尋問かどうかは,はいかいいえで答えられる等の形式的な面で決まる、と言っているように読者に思わせたい。」というところかも知れませんが)

 私のこのエントリを読んで、私が「誘導尋問かどうかは,はいかいいえで答えられる等の形式的な面で決まる」と言っているように理解した読者の方はおられるでしょうか?

 私は、

 もう一度整理しますと、本来は多様な回答があり得る質問内容について、その回答が限定される形式の質問をすることによって、回答者の回答を質問者が限定した回答に誘導するような質問を誘導尋問と言うのです。

と明言しています。

 これを「誘導尋問かどうかは,はいかいいえで答えられる等の形式的な面で決まる」と読むとしたら、小学生以下の読解力です。
 私になんとか反論したいという小倉弁護士の気持ちは痛いほどよく分かりますが、その結果小倉弁護士自身の大恥をさらしたのでは何をしているのか分からないのではないでしょうか?

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トラックバックURL: http://motoken.net/mt/mt-tb.cgi/2602

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う~~む、流石。

一見すると関連性や繋がりが悪いように感じていた、盤面に無造作に散らばっていた碁石が、このエントリの一手でアッという間に広い地になった。

この一週間、モトケンさんはいちいち細かく反論することを控えて、頭の中で大局を描きながら盤面広く石を散らし、分厚い布石作りに専念されていたのですネ。

小倉氏とモトケンさんが囲碁対局なさったら、勝負にならないのでは?

>小倉秀夫弁護士先生

 遅れてもいですからw↓ご回答をお願いします。m(_ _)m
 「回答を拒否している」なんて難癖つけるような失礼なことはしませんのでご安心ください。

http://www.yabelab.net/ogura-watch/2009/05/12-192635.php#comment-3030

open quetsion と closed questionですね。
法律家の業界ではclosed question を誘導尋問とするのは知りませんでした。
タメになります。

いっそのこと、小倉弁護士が法案への賛否を表明するまで議論を停止したらどうですか? こっちから積極的に反論することはせず、向こうが何か言うたびに「で、おたくの賛否は?」とだけ切り返してやればいいんですよ。

今のままだと、土俵に乗ってるモトケンさんの見解を、小倉弁護士が砂かぶり席からやいやい批評してるようなものではないですか。

向こうはいつも回答なしを敗北と見なしてるんだから、こちらも同じ宣言をしてかまわないでしょう。

 日本語では「自由探索型質問」と「択一質問」と呼ばれている質問形式ですね。論理的には必ずしも「択一質問」が誘導尋問になるわけではありませんが、排他的論理和(XOR)でなのに「択一質問」をすると、厳密には「誘導尋問」や「誤導尋問」に該当します。オープンクエスチョンでも不当仮定が入ると誘導尋問や誤導尋問に該当する場合があります。
難問例:
・犯人のメガネの色は黒ですか青ですか(実は黄色)
・犯人のメガネの色は何色ですか(実はコンタクト)

>いっそのこと、小倉弁護士が法案への賛否を表明するまで議論を停止したらどうですか?

 それが出来て実害がなければいいのですが、小倉弁護士先生が「誤導」した印象操作(例:誹謗中傷であふれたサイト)や「誤読」した法令解釈(例:誘導尋問の定義と要件)を、そのまま素直に信じてブログに転載引用する方もいらっしゃるので、「間違いは正さなければならない」と思います。

こちらで議論(反論)を中止したら、相手もそれに合わせて沈静化してくれるなら、まだ良いのですが・・・。

過去の事例から推測すると、こちらから一方的に反論を中止したら、即「勝利宣言」をして、更に弁舌が絶好調となる可能性を憂慮します。

これが杞憂で済むとは思えません。

 小倉弁護士のはてブコメントについて追記しました。

つまり,……スタック構造なわけでw


ChimeraJpn とりあえず,これ読んで考えた方が…http://www.yabelab.net/ogura-watch/2009/05/12-192635.php#comment-3030 2009/06/19

ncc1701 >id:OguraHideo いやいや、「形式で決まる」なんてモトケンはどこにも書いてないけど。形式では決まらないのはおたくのコメント掲載基準と一緒。 2009/06/19

hascup (^^ゞポリポリ ↓http://motoken.net/2009/06/18-193005.html#comment-8955 2009/06/19

saposaposen >No.5 ハスカップ さん「論理的には必ずしも「択一質問」が誘導尋問になるわけではありませんが、排他的論理和(XOR)でなのに「択一質問」をすると、厳密には「誘導尋問」や「誤導尋問」に該当します。」 2009/06/19

motoken01 ↓まだそんなことを言ってるんですか。いい加減に理解しなさい。あなた弁護士なんでしょ。日本語くらいまともに読めないんですか? /本文に追記しました。 2009/06/19

OguraHideo 松尾先生の刑事訴訟法の教科書等を見ると,誘導尋問かどうかは,はいかいいえで答えられる等の形式的な面で決まるのではないと書いてあったと思いますけど。 2009/06/19

ブクマ・スタック追加です。


oka_hitotsu ブクマに共通IDで執拗に粘着して解放しないのは実名の記載が恥ずかしい実名の罵倒者系臆病者兼卑怯者ですか?>id:OguraHideo 2009/06/19

shipposhippo モトケンさんが解放される日はくるのでしょうか。 2009/06/19

straymind 議論と対話 例えば「あなたはバカですか?」という質問に対して「それはどぉーでしょう?」と応えるのが正解、か? 「空が青いですね」と応えたら統ご(ry 2009/06/19

小倉弁護士とは全然関係ない話ですが…
先々週に傍聴した医療訴訟の尋問がまさに「誘導尋問」だったのだと,このエントリを読んで知りました。某所で書いた私の日記より。

-----------------
これがまた,患者側弁護士特有(と,私が最近思っているんですが)の質問方式。

「…助かった可能性がありますか?」
「そういう場合は…」
「いや,私の質問は,『はい』か『いいえ』で答えてください!」
というパターン。

ついには浜秀樹裁判長から,「いやいや,医学のことなんだから,『はい』か『いいえ』で片付けないで,説明をしてもらわないと,そこが聞きたいんだから」みたいなことを言われていました。さすが浜さん。

ついでに言うと,患者側協力医に対する主尋問では,「はい」と「いいえ」で答えられる質問に対してグダグダ説明をしだしても,お咎めをしません。まあどうでもいいんですが。

 そういう問題意識をもっていただけますと、こんなエントリも書いたかいがあるというものです(^^)

こちらこそ勉強になりました。ありがとうございます。

問題意識ついでに追加させていただくと,これも某所では紹介済みのことなんですが,医療訴訟における原告側弁護士の問題点について指摘している,原告側弁護士がいらっしゃいました。
http://www.ne.jp/asahi/sawasawa/hakunamatata/
これが原告側弁護士のサイトなのか,と思うほど医療に対して理解が深いと感じます。特にこのサイトの「プロローグ」と「訴えてやる!」には,モトケンさんのブログが熱かった時期に,医師たちが法律家の方々の説明を聞いても今ひとつ納得できなかった部分に対する答え(の一部)が書かれているように感じました。ここに裁判官の問題に対する解説を付け加えれば,医療側に対する説明としてはかなり受け入れられるものになると思いました。実はこの方,5年以上も前から患者・患者側弁護士の問題に言及していたことが判明していまして,このサイトをアノ時期にモトケンさんのところに投入できていなかったことが残念でなりません。
今からでも多くの法律家の方々に読んでみていただきたいサイトです。

峰村先生、ご紹介のサイトの弁護士さん、すてきですね。
ためになるサイト、ありがとうございました。

 医療問題にも造詣が深く感情論での医療訴訟を暗に諌める有能で客観的は判断をされる弁護士先生も、実は結構いらっしゃるのです。公立病院の事務屋にとって女神のような存在です。

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