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Exploring the influence of courtroom questioning and pre-trial preparation on eyewitness accuracy

Lead Research Organisation: University of Leeds
Department Name: Law

Abstract

When witnesses testify in court they enter an unfamiliar world. Witness preparation courses aim to demystify the court process and claim to help witnesses develop appropriate skills that will assist them to give their best evidence. When it comes to cross-examination, witnesses are given information about the standard tactics used by lawyers and given practical advice on how best to approach the interaction. They are informed about the basic rationale of cross-examination, for example, which is to discredit opposing testimony, and are directed to listen carefully to questions, to request clarification where appropriate and never to answer a question they do not understand. Proponents claim that pre-trial witness preparation puts witnesses 'on their guard' with the result that they are more likely to monitor their own comprehension and are less likely to be misled or unduly influenced by the form of cross-examination questions.

These are significant claims but they have yet to be subject to empirical scrutiny. There is a substantial international literature documenting the strategies lawyers employ during cross-examination. This research indicates that standard questioning techniques can cause confusion and militate against the provision of complete and accurate testimony in legal proceedings. The impact of witness preparation as currently practiced in England and Wales on witness accuracy has not been investigated by researchers however. A number of studies have examined the impact of witness familiarisation techniques on children's ability to deal with complex court language with encouraging results but the methods of preparation employed (booklets, models and role-play) differ markedly from those utilised by witness preparation providers in England and Wales.

Against this background, this study sets out to investigate:

(i) the impact of standard witness preparation techniques on adult witnesses' use of comprehension monitoring strategies during cross-examination e.g. requesting that questions be repeated, rephrased or clarified; and

(ii) the impact of standard witness preparation techniques on adult witness accuracy.

In so doing it will provide original insights which will be of significant interest to key participants in the legal process (witnesses, lawyers, Crown Prosecution Service, judges, witness training providers, police officers) and to Government with regards the practical utility of witness preparation techniques. Witnesses play a major role in legal proceedings (both criminal and civil) and there is a clear and obvious public interest in identifying procedures that both undermine and maximise the quality of evidence received by the courts. The Court of Appeal has recently endorsed the practice of witness preparation in R v Momodou [2005] 2 All ER 571 (whilst making it clear that witness coaching is prohibited), and one might expect more organisations to become involved in witness preparation as a direct result. Current providers include leading training consultancy Bond Solon, the College of Law, the Inns of Court School of Law and the Crown Prosecution Service as well as smaller operations catering to specific professional groups. It is significant that these witness training courses are primarily aimed at fee-paying 'professional' witnesses (e.g. expert witnesses, police officers). Currently, there is no equivalent service available to ordinary lay witnesses, including victims of crime involved in criminal proceedings. By exploring the utility of witness preparation techniques, this study will help establish whether there is case for making witness preparation services more widely available, thereby contributing to an important ongoing debate regarding appropriate policy in this area.
 
Description The project had three broad objectives: Objective one: to investigate whether specified witness preparation techniques have a positive impact on adult witness accuracy In this study participants were cross-examined according to four conditions: (i) complex-cross-examination minus preparation (ii) simple cross-examination minus preparation (iii)complex cross-examination plus preparation (iv) simple cross-examination plus preparation The complex cross-examination script contained advanced vocabulary, double negatives, leading and multi-part questions while the simplified cross-examination script employed less advanced vocabulary, contained no double negatives but was otherwise identical to the complex cross-examination script. The written guidance contained a short explanation of the function of cross-examination and basic advice on answering questions (e.g. to request clarification of complex questions). A significant main effect of preparation was found. Those participants who received written guidance prior to questioning were significantly more likely to provide correct responses to cross-examination questions. Participants in the simple-plus preparation condition achieved the highest mean accuracy score overall, followed by those in the complex-plus preparation condition, the simple-minus preparation condition, and the complex-minus preparation condition, in descending order. While caution must be exercised when extrapolating from an experimental context to actual forensic settings, our findings thus suggest that there are grounds to be optimistic about the potential effects of written guidance on the ability of adult witnesses to respond accurately to cross-examination questions. For example, our results suggest that guidance prompted prepared participants to listen more attentively to questions and, as addressed below, to seek clarification when confronted with questions they found confusing. Objective Two: to investigate the extent to which witness preparation encourages adult witnesses to engage in comprehension monitoring strategies during cross-examination e.g. requesting that questions be repeated or rephrased, clarified. Mean clarifications sought by participants in each condition were compared and a significant main effect for preparation on the number of clarifications sought was observed. Clarifications were higher for those who received preparation. Fourteen prepared participants made twenty clarification requests, compared to just two requests made by two participants in the absence of familiarisation. In turn, the increased tendency of participants to signal confusion led to more correct responses as participants generally answered rephrased questions accurately. Participants confronted with complex questioning were, as might be anticipated, most likely to seek assistance (n = 9 participants), and this resulted in increased accuracy scores for questions involving complex vocabulary, in particular, with participants either querying the meaning of specific words or simply requesting that complex questions be asked "in an different way". Questionnaire responses indicated that participants were typically appreciative of the guidance they had been given. Some respondents reported that the guidance had usefully told them "what to expect" during cross-examination while others indicated that it had given the self-assurance to speak up. Objective three: to explore witnesses' awareness of standard cross-examination techniques. Participants' understanding of cross-examination was tested by means of a questionnaire completed prior to questioning. Results revealed that the majority of participants had a weak grasp of the function of cross-examination.
Exploitation Route Witness testimony plays a vital role in criminal and civil trials but the potential impact of witness preparation on adult witness comprehension and accuracy has hitherto received scant empirical attention. The present research is of value to the research community as it enhances understanding of the difficulties adult witnesses can encounter in court and offers original insights into the potential benefits of preparing witnesses for the experience of testifying through written guidance. We anticipate that the research will be of significant interest to legal academic scholars given the immediate relevance to legal practice, increased prominence of witness preparation following judicial endorsement by the Court of Appeal, and renewed academic interest in the treatment and experience of witnesses/victims within the legal process. The topic of witness preparation has already attracted the attention of Evidence Law scholars and the research is likely to encourage and facilitate wider evaluation of appropriate methods of witness familiarisation amongst this audience and also amongst academic lawyers with an interest in criminal procedure, litigation, advocacy, and language and law. For researchers in the field of forensic and legal psychology the research clarifies and discusses psychologists' theoretical understandings of human information processing and its potential social and neurological relations in the context of the courtroom. Further, it also highlights to psychological researchers the necessity of continued application of theory to fieldwork research to improve practices, evidence, and the experience of the witness in legal settings. The study emphasizes the importance of multi-centre and cross-disciplinary endeavours and the outputs arising from this work are testament to such collaboration; i.e. allowing legal accessibility to psychological understandings of contextual relevant courtroom interplay and similarly enables administrators and practitioners within justice systems to avail themselves of the psychology-legal interface. In terms of stimulating further projects, the present study in its research design provides a model for future explorations of the benefits of witness preparation for specific categories of witness for whom complex courtroom questioning has been shown to be particularly problematic (for example, witnesses with learning disabilities). Importantly, the present study also demonstrates potential for greater forensic realism in experimental research examining courtroom processes. In previous studies exploring the effects of complex language on witness performance, for instance, mock witnesses have typically been artificially constrained to providing 'yes'/'no' responses to questions read out by experimenters, limiting the generalisability of research findings. The present study usefully illustrates how researchers can employ simulations that achieve greater versimilitude in terms of the courtroom environment without sacrificing experimental control. Allied to this, the study demonstrates more generally the benefits of interdisciplinary collaboration when engaging in experimental research of this nature as both researchers were able to bring to bear subject specific insights (law and psychology) which aided both in the design of the project and in the subsequent analysis of results.
Sectors Government

Democracy and Justice
URL http://www.law.leeds.ac.uk/people/staff/ellison/
 
Description Our findings have been been made available as a resource for advocates through the Advocates' Gateway - an online database which provides practical, evidence based guidance to lawyers on questioning witnesses in court. Our findings have also been made available as a resource for trial judges through citation in the Equal Treatment Bench book.
First Year Of Impact 2011
Sector Government, Democracy and Justice
Impact Types Policy & public services