On the whole, however, cross-examination procedures have long been thought by the legal profession to be crucial for probing the accuracy of evidence obtained in examination-in-chief, and to expose unreliable or dishonest witnesses (Stone, 1988). Hence, a firm rationale has developed in legal culture whereby leading questions are permitted during cross-examination (Keane & Fortson, 2011; Wheatcroft, Caruso, & Krumrey-Quinn, 2015). Moreover, it is generally contended that asking questions containing a false pre-supposition is a normal, useful and effective procedure for verifying doubtful information and introducing new information (Hickey, 1993). Arguably then, the admissibility of leading questions is based upon the notion that they serve to test the memories of witnesses. However, leading questions are usually suggestive to a degree (e.g. “The car was black, wasn’t it?”). Thus, such questioning aims to limit responses made to a two-alternative forced choice (i.e. yes/no), and puts pressure on the witness to provide the preferred answer (sometimes termed “yeah saying”; Harris, 1984; Kebbell, Hatton, Johnson, & O’Kelly, 2001). Of course, if one assumes that cross-examination of this kind tests the credibility of the witness to the full (i.e. a witness who rejects all attempts to be led, must be accurate in what he or she says), then, from the cross-examiner’s point of view, there may be a downside if the witness refuses to be led or comply with the pre-supposition. Accordingly, some legal advisors have openly asserted that asking leading questions in cross-examination can be unwise (Evans, 1995). Consequently, serious concerns have been raised with regard to basic paradigms of justice and fairness in that lawyerly questions can suggest or compel responses (Brennan, 1995).
Psychological research has raised serious doubts as to the impact of leading, pre-suppositional and complex questions on witness accuracy. Indeed, a number of studies have shown lawyerese questions to impede witness accuracy (Kebbell & Giles, 2000; Kebbell, Evans, & Johnson, 2010; Wheatcroft et al., 2004) and unwittingly provide obstructions to the truth (Loftus, 1975; Perry, McAuliff, Tam, Claycomb, Dostal, & Flanagan, 1995). With regard to leading questions, the law in England and Wales has not differentiated between alternate forms of leading questions (see Wheatcroft et al., and Chapter 14 ). However, in 2010 Wheatcroft and Woods made distinction between directive leading and non-directive leading forms of question. The directive style replicated the leading questions typically asked by counsel and were drawn from actual court transcripts, where the desired response was signalled (“You were actually in Birmingham at the time, weren’t you?”). Non-directive style questions were alternately framed (“Were you in Birmingham at the time?”). For adult witnesses, accuracy was at its greatest when the non-leading (non-directive) style was employed, with the leading (directive) style having detrimental effects on accuracy. Importantly, when witnesses had prior familiarisation to lawyerly questions, witnesses judged accuracy of responses more effectively.
Perry et al. (1995) found that lawyerese questions particularly reduced accuracy for younger children, but that negative, double negative, and multi-part questions posed the greatest problems for all age groups. The accuracy of younger and otherwise, vulnerable witnesses are demonstrably affected by such questions (see also Chapter 7 ). Adopting a rapid speech rate and antagonistic tone can also confuse and intimidate witnesses (Ellison, 2001) and lead to victim witnesses feeling re- traumatised by the process (Kebbell, Deprez, & Wagstaff, 2003; O’Connell, 2015; Wheatcroft, Wagstaff, & Moran, 2009). Given these points, the prospect that witnesses may benefit from familiarisation to courtroom processes has received some prominence in England and Wales in light of the Court of Appeal endorsing the practice (see Case Study 13.2). More recent judgements have gone further constraining the forms of questioning which can be put to very young witnesses and the length of cross examination (see Wheatcroft, Wheatcroft, 2017 and Chapter 14).
CASE STUDY 13.2 CASES OF R V. MOMODOU (2005) AND R V. SALISBURY (2005)
In Momodou the Court held that pre-trial arrangements to familiarise witnesses with the general process of testifying were permissible and could improve the manner in which a witness gives evidence by, for example, reducing the tension arising from inexperience. Lord Justice Judge noted that sensible pre-trial preparation was to be welcomed, as witnesses should not be disadvantaged by ignorance of the criminal trial process, nor when they come to give evidence, taken by surprise at the way it works (for discussions see Ellison, 2007; Ellison & Wheatcroft, 2010; Wheatcroft, 2012; Wheatcroft & Ellison, 2012). The Court of Appeal acknowledged the heavy demands placed on witnesses within adversarial systems and endorsed the practice of witness familiarisation in a criminal context. There was a dramatic distinction, the Court held, between witness coaching, which is prohibited, and sensible preparation for the experience of giving evidence that could assist a witness to give of his or her best at a forthcoming trial. The Professional Standards Committee of the Bar Council (2005) subsequently issued more detailed guidelines which clarified that it is appropriate, as part of a witness familiarisation process, for barristers to advise witnesses as to the basic requirements for giving evidence, such as the need to listen to and answer the question put, to speak clearly and slowly in order to ensure that the Court hears what the witness is saying, and to avoid irrelevant comments. Engaging a witness in a mock examination-in-chief, cross-examination or re-examination is also permissible, the guidelines state, provided that its purpose is simply to give the witness greater familiarity with and confidence in the process of giving oral evidence.
The criminal courts had a further opportunity to consider the propriety of witness preparation in Salisbury. In this case, a nurse was found guilty of attempting to murder two patients in her care. Professionals who worked with Salisbury were called as witnesses and owing to concerns that the trial was causing undue stress and anxiety, the NHS Trust concerned arranged for staff to receive advice on courtroom procedure and techniques of cross-examination. On receipt of this information, the defence applied to have the evidence of the witnesses excluded or alternatively for the proceedings to be stayed on the grounds of abuse of process. The Court of Appeal was however satisfied that what had taken place was no more than preparation for the exercise of giving evidence with witnesses undergoing instruction on the pitfalls of testifying. This, in Lord Phillip’s view, was an exercise that any witness would be entitled to enjoy were it available, noting: “…there is, in my view, a difference of substance between the process of familiarisation with the task of giving evidence coherently and the orchestration of evidence to be given. The second is objectionable and the first is not” (p. 3103).
Advocates argue that pre-trial preparation equips witnesses with essential courtroom skills and helps witnesses negotiate the peculiar demands of cross- examination (see Advocates Gateway, n.d.; Carson, 1990; Cooper, 2005; Bond & Solon, 1999). While these claims have intuitive appeal, a review of the literature reveals a general lack of empirical research on witness preparation involving adult witnesses (Boccaccini, Gordon, & Brodsky, 2005), with most studies to date focusing upon the pre-trial preparation of children (Dezwirek-Sas, 1992; Lipovsky & Stern, 1997; Murray, 1997). Wheatcroft & Woods (2010) investigated the potential for adult witnesses of simple witness preparation statements to counter the effects of leading question styles used in criminal courts. Their experimental research showed pre-familiarisation with directive leading questions improved the relationship between expressed witness confidence and evidential accuracy compared to a non-directive control condition. Nevertheless, the statements used were somewhat basic in character. Further research, which has provided more detailed preparation, led to increased witness accuracy and a decrease in errors. Accuracy for multi-part questions increased and errors decreased, while negatively framed questions showed a decrease in errors, as did errors for complex questions and the readiness of participants to seek clarification from the examiner also improved (Wheatcroft & Ellison, 2012). This research shows familiarisation could be helpful for witnesses and assist witnesses in giving their b
est evidence (Wheatcroft et al., 2015).
13.3.4 The Impact of Pre-Trial Publicity and Judicial Pronouncements upon Outcome
In high profile cases, where there are no legal prohibitions on reporting, the public may gather information through media reports. Importantly, recent concern has been raised around juror access to the Internet during trials to assess material (e.g. a defendant’s past history). The Lord Chief Justice was reported as saying that “the jury system may not survive if it is undermined by social networking sites” (see BBC News UK, 2010). Jurors cannot know whether the information they read is accurate or reliable, but research demonstrates that those who hear media reports about a case are more likely to believe in the guilt of the suspect (Kerr, 1995; Steblay, Besirevic, Fulero, & Jimenez-Lorente, 1999). In today’s 24-hour news agenda, potential jurors can be repeatedly exposed to vivid and sometimes horrific images of crime. Ogloff and Vidmar (1994) examined the effects of print and television media in relation to prejudicial bias. The results again indicated that all media exposure had a prejudicial impact, but that the effects of television and print were particularly strong. Similarly, research has demonstrated an increase in guilty verdicts when mock jurors were exposed to negative pre-trial publicity (Hope, Memon, & McGeorge, 2004). Negative pre-trial publicity then has a strong impact on trial outcome, at least for the accused (see Studebaker & Penrod, 1997 for review).
One reason for this is the biasing effects of informational social influence, that is, the need to conform to sources of information other than our own because we believe others’ interpretations are more accurate (Cialdini, 1993). Material that arouses emotions can exercise a particularly powerful influence. Kramer, Kerr, and Carroll (1990) asked three groups of jurors to watch a trial of a man accused of robbery. Prior to watching, one group were exposed to emotional publicity (i.e. a car matching the one used in the robbery struck and killed a 7-year old girl), one group to factual publicity (i.e. the robber’s extensive criminal record), and a third group to no publicity. Jurors who were given emotional publicity showed bias by returning significantly more guilty verdicts than those who received the adverse factual information. Further, neither instruction nor deliberation strategies reduced the impact of either publicity type – indeed, deliberation actually strengthened bias and illustrated the potential of social influence to impact upon persuasibility.
While judges can direct juries to disregard information, such directions might not necessarily be effective. In fact, such pronouncements could even enhance jurors’ attention to the issue (Fein, McCloskey & Tomlinson, 1997). British judges, at the end of the trial, will sum up the case and give the jury instructions regarding law to consider during deliberation. The requirement for legal instruction stems from the fact that the jury are asked to decide whether a defendant is guilty according to the letter of the law, rather than the truth of their evidence. However, jurors find such instructions difficult to interpret, understand and apply, as they are written with the law, rather than the layperson in mind (Steele & Thornburg, 1988) and a number of studies have shown that standard legal instructions can have an adverse impact on juror comprehension (e.g. Alfini, Sales, & Elwork, 1982; Severance & Loftus, 1982).
A comprehensive study conducted by Thomas (2010) for the Ministry of Justice in the UK reported judges’ directions to be “easily understood”; though variations existed across jurisdictions and the three courts assessed. This generalisation obscured some important differences due to age. When understanding of the law of self-defence was assessed from an oral presentation, younger jurors aged 18–29 years showed greater understanding compared to those aged 30 years and above. Such age effects question the usefulness of some legal instructions when spoken to older jurors. Juror comprehension was compromised when both oral and written instructions relating to “actual bodily harm” and “self-defence” were examined, along with the specific legal tests required for those offences (i.e. “was force necessary” and “was it reasonable”); 36% of jurors failed to identify either of the two legal questions. Thus, despite exposing juror difficulties since the 1970s, Dumas (2000) noted that standard judicial directions to jurors still tend to be written in dense, legal language.
Interestingly, Shaffer and Wheatman (2000) found that those with a dogmatic personality were more likely to apply judge’s instructions properly. The prospect of misunderstandings led lay jurors to rely more upon their own common sense and personal experiences, rather than judicial assessments of the law. One commonly misunderstood direction is the proof required to satisfy the “beyond reasonable doubt” criterion outlined above. Research suggests jurors have a tendency to apply the most stringent test – that of 100% certainty – which is unrealistic (Montgomery, 1998; Zander, 2000). Indeed, judges themselves have problems in identifying a percentage that would satisfy “beyond reasonable doubt” (Kagehiro, 1990). On the basis of research findings to date, pre-trial publicity should be kept to a minimum and judges should adopt jury-friendly versions of judicial directions, in order that jurors are better able to comprehend and accurately apply the information they receive.
PHOTO 13.2 In the civil courts in Britain and in the inquisitorial system of mainland Europe, judges, rather than juries, make decisions.
Source: © Rido/Shutterstock
13.4 JUDGES AS DECISION-MAKERS
13.4.1 Decision-making by Judges in the European Courts
In the civil courts in Britain and in the inquisitorial system of mainland Europe, judges, rather than juries, make decisions. Judges try to be impartial and derive their decisions purely from the law and the evidence. Research on judicial decision-making suggests this may not be so. According to Wagenaar, van Koppen and Crombag (1993) judges can be influenced by anchored narratives. According to Wagenaar et al., “anchors” are common-sense rules generally expected to be true: unquestioned assumptions concerning people, behaviour and ideas. These assumptions may be stereotypes that anchor any narrative to commonly held perceptions, such as “once a thief always a thief” or “drug abusers are always thieves” (Wagenaar, 1995). Such anchors, often embedded within legal decisions, are implicit rather than explicit. According to Wagenaar et al., legal fact-finding is predominantly a psychological process and often lacks logic. Anchors support propositions or facts and are derived from general impressions of the world but are not necessarily correct. From this standpoint, proof in criminal cases may lack rigorous justification of the anchors upon which it is based.
The availability of anchors through “common sense” understandings demonstrates a lack of insight into the roots of our own decision-making. Furthermore, a consensus need not be achieved, as all involved tend to share the common understanding in question. An example anchored in Dutch law is, “police officers in the line of duty never lie”. This anchor presupposes that the statement of a single police officer is proof enough. In a case cited by Wagenaar et al., a man was charged with illegally receiving unemployment benefits while he worked on an asparagus farm; the prosecutor successfully relied solely upon the statements of two police officers.
Spanish studies of past sentences also support the view that decisions are determined largely through systematic judgement biases (Fariña, Novo, & Arce, 2003). Fariña et al. considered 555 penal judgements from the High Court and Criminal Courts in northwest Spain and estimated that anchoring drove 63.6% of those judgements. Therefore, cultural anchors can impact upon decision-making and illuminate the reasons for inconsistent decisions.
An important component of a narrative is plausibility, which suggests “an internal coherence” (Jackson, 1988; p. 171). It is significant therefore that the aim of both parties in court is to put forward a plausible and credible account resembling what the judge and jury (i.e. in law, “reasonable persons”), could believe. Plausibility may be sensitive to external anchors that activate relevant schemata: those integrated networks of knowledge, beliefs and expectations related to a particular subject (Canter, Grieve, Nicol, & Benneworth, 2003).
Interestingly, Canter et al. found that plausibility levels were lower when statements did not follow a temporal sequence of events: “These processes relate both to ‘internal’ structural constituents of narratives, especially the order in which they are presented, and to ‘external’ stereotypes and belief systems on which an individual may draw to conceptualize and interpret particular components of the narrative” (Canter et al., 2003, p. 261).
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