Bigger fish to fry
| Author | Emily Henderson |
| Published date | 01 April 2015 |
| Date | 01 April 2015 |
| DOI | http://doi.org/10.1177/1365712714568072 |
| Subject Matter | Articles |
Article
Bigger fish to fry: Should the
reform of cross-examination
be expanded beyond
vulnerable witnesses?
Emily Henderson
New Zealand Law Foundation, Wellington, New Zealand
Abstract
The author summarises the empirical research on robust adult witnesses and argues that
consideration may need to be given to extending the reforms of cross-examination initiated in
RvBarker beyond vulnerable witnesses.
Keywords
Non-vulnerable witnesses, cross-examination, courtroom questioning
Introduction
We almost all now accept that testing a vulnerable witness’s evidence using undiluted conventional
cross-examination techniques does not produce reliable evidence.
1
Conventional cross-examination,
with its characteristically complex vocabulary and grammar, its heavy emphasis on suggestive
questions and its equally heavy emphasis on comment, can quite easily create a misleading impres-
sion of a vulnerable witness’s competence and credibility, not to mention the substance of his or
her evidence.
2
Consequently, the English Court of Appeal are in the process of reformulating
cross-examination to prevent advocates deploying some of their heavier artillery against such
witnesses.
3
However, in these cases the Court could also be seen as intimating—as the previous Lord Chief Jus-
tice, Sir Igor Judge has suggested
4
—that the principles it is applying to children and adults with special
needs are applicable across the board even to ordinary, robust witnesses.
Corresponding author:
Emily Henderson, Barrister, Henderson Reeves, PO Box 11, Whangarei, 0110, New Zealand.
Email: emilyhenderson@xtra.co.nz
1. For an overview of the issues see Plotnikoff and Woolfson (2012).
2. Ibid.
3. RvBarker [2010] EWCA Crim 4; RvEdwards [2011] EWCA Crim 3028; RvW and M [2010] EWCA Crim. 1926; RvWills
[2011] EWCA Crim 1938; RvFarooqi & Ors [2013] EWCA Crim 1649. For a discussion of the cases see Henderson (2014;
forthcoming c).
4. Judge (2013). See also RvFarooqi & Ors, above n. 4; HvR[2014] EWCA Crim 1555.
The International Journalof
Evidence & Proof
2015, Vol. 19(2) 83–99
ªThe Author(s) 2015
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DOI: 10.1177/1365712714568072
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It is easy enough to see that some of the more general rules which the Court has chosen to emphasise,
such as that against comment, have an equally general application. However, might there also be reasons
to restrict other aspects of conventional cross-examination technique, on the grounds that they impede
the investigation of the evidence of all witnesses rather than just the vulnerable?
The substantial body of research on police interrogation of adult eyewitnesses and adult suspects,
together with recent studies of adults under cross-examination, suggests that there are real reasons to
be concerned about many aspects of conventional practice. The equally extensive research on the relia-
bility of demeanour evidence to evaluate witnesses also raises questions about whether cross-
examination is, as Plotnikoff and Woolfson have put it, ‘fit for purpose’.
5
This article summarises the research in relation to adult comprehension of typical cross-
examination language, adult suggestibility and demeanour evidence. It suggests that it may be time
to consider extending the restrictions on the cross-examination of vulnerable witnesses to all wit-
nesses, and, further, to explore mechanisms for scaffolding what appears to be a very hit-and-miss
method of interrogation.
Complex questioning
One of the major problems identified with conventional cross-examination of vulnerable witnesses is the
sheer complexity of the language and the syntax, which researchers invariably find to be well in advance
of the developmental limitations of the witnesses.
6
This would be one area in which ordinary adults might be expected to cope. However, research sug-
gests that some common cross-examination question-types are likely to confuse adult witnesses and
result in misleading answers.
7
In 2000, Kebbell and Johnson considered the impact of two types of questioning on the accuracy of
ordinary adults who watched a video of a physical assault. One group were questioned about the incident
using simple questions, the other using questions involving six features typical of cross-examination,
namely negatives, double negatives, leading questions, multiple questions (or rollups) and questions
containing complex syntax or complex vocabulary. The witnesses in the ‘simple’ condition were sub-
stantially more accurate (or made substantially fewer factual errors) than those in the cross-
examination condition.
8
In 2010 Kebbell, Evans and Johnson again explored adult reactions to simple and cross-examination-
style questioning, utilising four of the six features used in the 2000 study, namely negatives, double
negatives, leading and multi-part questions. Again, they found those in the complex condition were sub-
stantially less accurate than those in the simple condition.
9
Neither study appears to have used a very realistic cross-examination scenario. Witnesses were ques-
tioned by researchers, not advocates, according to a pre-arranged list which tested responses to individ-
ual questions rather than questions in sequence, and the pace seems to have been slow, with pauses
for witnesses to rate their confidence in their answers. Given this rather gentle scenario the results prob-
ably underestimate the impact complex questions might have on witnesses in a real courtroom. This
makes the results obtained all the more worrying.
10
5. Plotnikoff and Woolfson (2012).
6. For an overview of the voluminous research literature see Plotnikoff and Woolfson (2012); Hanna et al. (2011); Zajac and
Hayne (2003); O’Neill and Zajac (2013); Zajac and Hayne (2006); Zajac and Cannan (2009).
7. Ellison and Wheatcroft (2010: 825).
8. Kebbell and Johnson (2000).
9. Kebbell et al. (2010). See also Wheatcroft et al. (2004: 95), in which they found that complex ‘lawyerese’ and ‘negative
feedback’ or challenge caused significantly less accurate responses, but lawyerese alone did not. However, this was again a
somewhat unrealistic, unthreatening questioning scenario, as they acknowledge (2004: 98).
10. For a discussion of the impact of the realism of the examination scenario, see Wheatcroft et al. (2004: 98); Ellison and
Wheatcroft (2010); Jack and Zajac (2014).
84 The International Journal of Evidence & Proof 19(2)
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