Psychology in the Courtroom: Cross-Examination and Witness Testimony

Core Principles and Objectives of Cross-Examination

• Definition and Purpose: Cross-examination is a fundamental component of the legal process designed to achieve three primary objectives:     * To elicit evidence that supports the cross-examining party's case.     * To cast doubt upon or undermine the evidence and credibility of the witness to weaken the opponent's case.     * To challenge evidence that is currently in dispute.

• Legal Perspective: Many legal professionals view cross-examination as an indispensable tool for uncovering the truth. Wigmore (1974) famously described it as "the greatest legal engine ever invented for the discovery of truth."

The Impact of Suggestibility and Leading Questions

• Definition of Suggestibility: According to Ceci & Bruck (1995), suggestibility is defined as "the degree to which the encoding, storage, retrieval, & reporting of events can be influenced by a range of internal & external factors."

• Foundational Research: Loftus and Palmer (1974):     * Study Focus: The effect of leading questions on witness testimony.     * Methodology: Participants watched film clips of car accidents, wrote an account of what they saw, and answered specific questions.     * Experimental Variable: The wording of the verb in the question: "About how fast were the cars going when they [VERB] each other?"     * Results (Speed Estimates):         * Smashed: $41$         * Collided: $39$         * Bumped: $38$         * Hit: $34$         * Contacted: $32$

Perceptions of Witness Suggestibility among Legal Professionals

• Benton et al. (2006) Survey: This study surveyed jurors, judges, and police officers to assess their agreement with $30$ statements regarding eyewitness issues.

• Key Findings on Witness Factors:     * Question Wording: Experts ($98\%$), Jurors ($85\%$), Judges ($88\%$), and Police ($83\%$) largely agreed that wording affects testimony.     * Child Suggestibility: There was high agreement that young children are more vulnerable to interviewer suggestion, peer pressure, and social influences: Experts ($94\%$), Jurors ($82\%$), Judges ($88\%$), and Police ($81\%$).     * Child Witness Accuracy: Belief that children are less accurate than adults: Experts ($70\%$), Jurors ($32\%$), Judges ($45\%$), and Police ($23\%$).     * Elderly Witness Accuracy: Belief that elderly witnesses are less accurate than younger adults: Experts ($50\%$), Jurors ($23\%$), Judges ($12\%$), and Police ($48\%$).

Tactical Questioning and Lawyer Language

• Specific Question Types:     * Negative: "Did the woman not have black hair?"     * Double Negative: "Is it not true to say that the woman did not wear trousers?"     * Leading Question: "It is true to say that the attack happened in a park, isn’t it?"     * Complex Question: "Would it be correct to suggest that the woman wearing a coat in the incident’s shoe fell off?"     * Multiple Part Question: "Would you say that it was raining? Could you hear thunder?"     * Tag Question: A specific leading technique where the witness is invited to agree by attaching "correct?" or "yes?" to the end of a statement.

• The Strategy of Control: Moses (2001) advises that lawyers should generally avoid inviting witnesses to explain. This means avoiding "Why?", "How?", or "Can you explain?". These open-ended questions provide the witness with "free rein," whereas leading questions keep the witness "on the hook."

• Linguistic Barriers (Perry et al., 1995): Lawyers frequently use advanced or legal vocabulary and complex syntax. Research involving participants aged $5-6$, $9-10$, $14-15$, and college students found that "lawyer language" (multiple parts, negatives, double negatives) posed significant problems for all age groups.

Empirical Research on Adult Witnesses

• Valentine and Maras (2011):     * Participants viewed a video of a crime and were cross-examined $4\,weeks$ later.     * Findings: $73\%$ of participants changed an answer from their original statement during cross-examination. Cross-examination was found to substantially reduce accuracy, with most questions being leading or tag questions.

• Kebbell, Evans, and Johnson (2010):     * Comparison: Complex questions vs. Simplified questions.     * Example (Complex): "Did the attacked not grab the woman around the waist?"     * Example (Simplified): "Did the attached grab the woman around the waist?"     * Accuracy Results: Accuracy was significantly lower for complex questions ($M = .43$) compared to simplified questions ($M = .84$).     * Confidence and Speed: Despite lower accuracy, participants expressed similar confidence levels for complex ($M = 6.74$) and simple ($M = 7.30$) questions. However, response times were longer for complex questions ($M = 3.20$) vs. simple questions ($M = 2.11$).

Vulnerable Witnesses in the Courtroom

• Classification of Vulnerable Witnesses:     * Persons under the age of $18$ (children).     * Adults with significant intellectual or social functioning impairments.     * Individuals with mental health problems or mental disorders.     * Individuals with physical disabilities or disorders.

• Special Measures (Youth Justice and Criminal Evidence Act, 1999):     * Screens to shield the witness from the defendant.     * Video-recorded evidence-in-chief.     * Live TV links.     * Use of Intermediaries.     * Communication aids.     * Removal of wigs and gowns by legal professionals.     * Video-recorded cross-examination.

Cross-Examination and Children

• Psychological Vulnerabilities: Children exhibit high suggestibility, are easily influenced by question nature (acquiescence), struggle with adult concepts/legal terms, and tend to comply with authority figures.

• The Adult-Pleasing Tendency: Salhany (2006) notes that children want to please adults. If questions are framed to elicit "yes" or "no" answers, the child will likely provide the answer suggested by the question.

• Zajac and Hayne (2003, 2006) Experimental Findings:     * Method: Children (ages $5-6$ and $9-10$) visited a police station. They underwent direct examination after $6\,weeks$ and cross-examination after $8\,months$.     * Results for $5-6-year-olds$: $85\%$ changed at least one original response; $33\%$ changed all original responses.     * Results for $9-10-year-olds$: $70\%$ changed at least one original response. Older children were just as likely as younger ones to change answers.

• Transcript Analysis (Zajac, Gross, and Hayne, 2003):     * Analyzed trial transcripts of children aged $5-13$.     * Categorized questions: Complex, Grammatically Confusing, Credibility-challenging, Leading, Closed, Appropriate, and Reference to earlier testimony.     * Findings: $76\%$ of children changed earlier statements; $95\%$ of these changes occurred in response to leading questions.

Judicial Intervention and Trial Examples

• Hanna et al. (2012): Comparison of practice in 2008 vs. 1994. While judges in 2008 intervened more, many complex questions still went unchallenged.

• Dialogue Example (15-year-old Witness):     * Defence: "Now do you remember what day you said that the later sexual violation occurred?"     * Child: "Pardon?"     * Defence: "Do you remember what date it was or when it happened?"     * Child: "On the first one."     * Defence: "No, the second."     * Judge: "Mr X, ask a question in a less confusing manner."     * Defence: "Yes, Your Honour. The –"     * Judge: "Like this. When was the first time that you told anybody about sex abuse when you were a lot younger?"     * Child: "I, I only – on – the first time I told anyone was – I don’t know what was the date – I just told the nurse."

Witnesses with Learning Disabilities (LDs)

• Challenges: Impaired cognitive and social functioning, poor memory (encoding, storage, retrieval), limited linguistic skills, high suggestibility, acquiescence, and deference to authority figures.

• Kebbell, Hatton, & Johnson (2004) Study: Compared $16$ cases involving witnesses with LDs and $16$ General Population (GP) cases.     * Lawyers’ questioning of LD witnesses was almost identical to GP witnesses.     * LD witnesses were asked fewer leading questions but more repeated questions.

Methodological Limitations and Interventions

• Limitations of Transcript Research: Transcripts lose emotional tone, speed of speech details, and pauses/hesitations. They may also not be recorded verbatim.

• Interventions for Adults (Wheatcroft and Ellison, 2012):     * A preparation group received a guidance booklet on cross-examination.     * Results: The preparation group was more accurate, made fewer errors, and offered more clarifications during cross-examination by trainee barristers.

• Interventions for Children (Righarts, O’Neill, and Zajac, 2013):     * Children (ages $5-6$ and $9-10$) participated in a practice session involving a video of an unrelated event.     * During practice, children were praised for correct answers and informed when an answer was incorrect.     * Results: Practice sessions led to fewer changes in responses and fewer changes to correct responses. While it did not eliminate negative effects, it significantly improved accuracy.

• Systemic Training: In 2011, the Advocacy Training Council (ATC) identified a need for training regarding vulnerable witnesses. In November 2016, the Bar Council launched professional training to develop less intrusive questioning techniques for children and vulnerable adults, emphasizing that intimidating questioning is not in the interest of justice.