Cross-examination is leaving courtroom witnesses confused, angry and their evidence potentially unreliable, according to new research from the universities of Leeds and Liverpool.
The research team is now calling for witnesses to be given advice and guidance to prepare them for their time on the stand.
The researchers, funded by the Arts and Humanities Research Council, showed footage of a staged crime to a group of people, as though they were eye-witnesses, and then subjected them to the kind of questioning techniques which they might encounter in court.
Those who handled cross-examination best – and gave the most reliable evidence – were those who had received written guidance on what they were likely to face in the witness box prior to questioning.
“People are going into the witness box with very little knowledge and preparation,” explained Dr Louise Ellison, senior lecturer in law at Leeds, who led the work alongside forensic psychologist Dr Jacqueline Wheatcroft from Liverpool. “The lay person has very little idea of what to expect and this understandably impacts on their evidence.”
Lawyers trade on this naiveté: “It puts witnesses at a disadvantage and barristers are able to exploit their inexperience. And there is increasing evidence that the accuracy of evidence is undermined by these questioning techniques.”
“It is a very unfamiliar situation,” Dr Wheatcroft added. “The tactics and language used in cross examination are all about discrediting the witness and undermining their evidence. Lawyers might ask complex questions, multi-part questions, use double negatives – or ask for a ‘yes’ or ‘no’ answer to an issue that is actually much less clear-cut.”
“Witnesses can be left feeling angry that lawyers have twisted their words, that their answers have been manipulated by lawyerly tricks”.
The research showed the benefit of pre-trial witness familiarisation, whereby witnesses are given general advice on how to testify effectively such as:
• Lawyers may suggest answers to their own questions. Do not agree with any suggestion unless it is true;
• You can ask for a question to be repeated;
• You can ask for an explanation or clarification of a question.
In the research, those who had received advice were much more likely to speak up and ask for a question to be repeated, much more likely to give full answers to complicated and multipart questions – and less likely to make errors.
Witness familiarisation courses are already available, but are largely aimed at police officers, experts and other “professional witnesses”, rather than lay people being asked to give evidence.
“In the past there has been a fear of witness coaching, whereby witnesses would be rehearsed on the specifics, and pitfalls, of a particular case,” Dr Ellison explained. “But there’s a difference between coaching and giving general advice and support to ensure that our witnesses are confident, well-prepared – and reliable.”
Further information:
For further information, or requests to interview Dr Louise Ellison, please contact Emi Spinner, press office, AHRC: 01793 416020 or 07854 005 662 or e.spinner@ahrc.ac.uk
A pdf copy of the research paper “Exploring the influence of courtroom questioning and pre-trial preparation on adult witness accuracy” is available on request.
Each year the Arts and Humanities Research Council provides funding from the Government to support research and postgraduate study in the arts and humanities, from archaeology and English literature to design and dance. Only applications of the highest quality and excellence are funded and the range of research supported by this investment of public funds not only provides social and cultural benefits but also contributes to the economic success of the UK.
The 2008 Research Assessment Exercise showed the University of Leeds to be the UK's eighth biggest research powerhouse. The University is one of the largest higher education institutions in the UK and a member of the Russell Group of research-intensive universities. The University's vision is to secure a place among the world's top 50 by 2015. www.leeds.ac.uk
Its Faculty of Education, Social Sciences and Law brings together internationally-renowned expertise in these key areas of human interaction. Its four schools – education; sociology and social policy; politics and international studies; law – embed world-leading research into a range of undergraduate, postgraduate and professional development courses.
The School of Law at the University of Leeds is one of the leading law schools in the UK and has been providing instruction in law since its inception in 1899. The 2008 Research Assessment Exercise awarded the School an outstanding rating, reflecting the international quality of its research. Its four research centres supervise research students and support research-based postgraduate taught programmes.
The University of Liverpool is a member of the Russell Group of leading research-intensive institutions in the UK. It attracts collaborative and contract research commissions from a wide range of national and international organisations valued at more than £98 million annually.
The University of Liverpool’s Centre for Investigative Psychology conducts internationally-recognised research on the psychological processes associated with the investigation of criminal activity and the impact of various psychological factors on witness evidence and court processes. As part of a major Russell Group university the Centre supports the development of high quality research, education, and training.