Communication and cross-examination in court for children and adults with intellectual disabilities: A systematic review
| DOI | 10.1177/1365712719851134 |
| Author | Rachel Forrester-Jones,Joanne Morrison,Jill Bradshaw,Glynis Murphy |
| Date | 01 October 2019 |
| Published date | 01 October 2019 |
| Subject Matter | Articles |
The International Journal of
Evidence & Proof
Communication and
2019, Vol. 23(4) 366–398
ª The Author(s) 2019
cross-examination in court
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DOI: 10.1177/1365712719851134
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intellectual disabilities:
A systematic review
Joanne Morrison
Tizard Centre, University of Kent, Kent, UK
Rachel Forrester-Jones
University of Bath, Bath, UK
Jill Bradshaw
Tizard Centre, University of Kent, Kent, UK
Glynis Murphy
Tizard Centre, University of Kent, Kent, UK
Abstract
Courts in England, Wales and Northern Ireland have identified children and adults with
intellectual disabilities (ID) as vulnerable witnesses. The call from the English Court of Appeal
is for advocates to adjust questioning during cross-examination according to individual
needs. This review systematically examined previous empirical studies with the aim of
delineating the particular communication needs of children and adults with ID during
cross-examination. Studies utilising experimental methodology similar to examination/cross-
examination processes, or which assessed the communication of actual cross-examinations
in court were included. A range of communication challenges were highlighted, including:
suggestibility to leading questions and negative feedback; acquiescence; accuracy; memory
and understanding of court language. In addition, a number of influencing factors were
identified, including: age; IQ level; question styles used. This review highlights the need for
further research using cross-examination methodology and live practice, that take into
consideration the impact on communication of the unique environment and situation of the
cross-examination process.
Corresponding author:
Joanne Morrison, University of Kent, Cornwallis North East, Canterbury, Kent CT2 7NZ, UK.
E-mail: sjm87@kent.ac.uk
Morrison et al.
367
Keywords
Communication, cross-examination, court, intellectual disability, learning difficulties, learning
disability, vulnerable defendant, vulnerable witness
Introduction
There are three main international classification systems in place for diagnosis of an intellectual dis-
ability (ID), ICD-111, DSM-5 (American Psychiatric Association, 2013) and AAIDD 11 (Schalock et al.,
2010). They vary in the descriptive terms used and the criteria for severe disability, however they all
agree that the presence of three characteristics is required for a formal diagnosis of ID:
1.
Impairment of intelligence (IQ below 70)
2.
Impairment of adaptive functioning2
3.
Occurring during the developmental stages of life (i.e. below 18 years old).
These impairments are often made more complex by being linked to other genetic (for example,
Downs Syndrome), medical (for example, cerebral palsy) and sensory (for example, hearing loss)
conditions (American Psychiatric Association, 2013). They may also be associated with Attention
Deficit Hyperactivity Disorder (ADHD) (Neece et al., 2011), mental health difficulties (Cooper et al.,
2007; Emerson and Hatton, 2007; Strømme and Diseth, 2000), communication difficulties (American
Psychiatric Association, 2013) and autism (a developmental disability that affects social and commu-
nication functioning).3 This can result in daily challenges for people with ID to live within communities
and appropriately navigate their way through the complicated systems of society, thereby leaving them
vulnerable to abuse and criminality.
Previous research concerning social vulnerability of people with ID has reported a greater level of risk
of individuals with ID being victims of crime (Clare and Murphy, 2001; Henry and Wilcock, 2013)
compared to the general population. They may be over-represented as alleged perpetrators of crime too,
at the police station stage. In prison, the precise prevalence figures for the number of people with ID have
been much disputed in the UK and elsewhere; they undoubtedly vary enormously with the method for
screening for ID and the jurisdiction in question (Murphy and Mason, 2014).
It has been recognised for some time that, regardless of prevalence, people with ID who are victims or
witnesses of crimes are vulnerable in the criminal justice system at various stages so that in England,
Wales and Northern Ireland, people with ID come under the legal category of ‘vulnerable witnesses’
(Youth Justice and Criminal Evidence Act 1999, Criminal Evidence (NI) Order 1999). In response to
recommendations made in the 1998 Speaking up for Justice report (Burton et al., 2006) the courts are
required to consider applications of eight special measures for vulnerable witnesses:4
screening witness from the accused
evidence given by live link
evidence given in private
removal of wigs and gowns
video recorded evidence-in-chief
video recorded cross-examination or re-examination
1. www.who.int/classifications/icd/en/ (accessed 8 May 2019).
2. Adaptive functioning can be defined as possessing conceptual (e.g. language), social and practical skills (American Psychiatric
Association, 2013).
3. https://icd.who.int/browse11/l-m/en#/http://id.who.int/icd/entity/437815624 (accessed 8 May 2019) (ICD 11 6A02).
4. Sections 23–30 of the Youth Justice and Criminal Evidence Act 1999.
368
The International Journal of Evidence & Proof 23(4)
examination of witness through an intermediary
the use of aids to communication.
These special measures were initially intended for non-defendant witnesses, although following a
challenge under Human Rights legislation in SC v UK (40 EHRR 10), there has been some limited
provision made for defendants in England and Wales (Fairclough, 2016, 2018). In Northern Ireland legal
provision is made for intermediaries for the accused during police interview, examination and cross-
examination5 and for live link when giving evidence in court (Cooper and Mattison, 2017).6
Cross-examination
Keane et al., (2010) describe two main purposes of cross-examination: first, to extract evidence support-
ing the opposing party’s version of the facts and secondly, to cast doubt on the witness’s version of
events. In his ‘Ten Commandments of Cross-examination’ Pratt suggests that advocates can use the
skills of personality, presence and persuasion to carry out successful cross-examination (Pratt, 2003).
However, these skills have been subject to criticism. For some, cross-examination is seen as a way to
discredit the witness (Clark, 2011), to control and undermine confidence (Valentine and Maras, 2011),
and challenge credibility (Wheatcroft et al., 2004). Cross-examination can cause inaccuracies in eye-
witness accounts (Keane, 2012; Keane and Fortson, 2011; Wheatcroft et al., 2004; Wheatcroft and
Woods, 2010), particularly for vulnerable witnesses (Geddes, 2016; Gerry and Cooper, 2017; Hender-
son, 2014; Hoyano, 2015; Keane, 2012). The use of leading questions during cross-examination has
come under particular scrutiny and criticism (Keane, 2012; Sharman and Powell, 2012; Valentine and
Maras, 2011; Wheatcroft et al., 2004), especially when used with vulnerable witnesses (Agnew and
Powell, 2004; Sharman and Powell, 2012).
Some critics suggest that cross-examination by advocates should be replaced by a suitably qualified
third party (Hoyano, 2015; Zajac et al., 2012) or changed to an inquisitorial system, which purportedly
arrives at the truth through investigation rather than witness examination (Bowden et al., 2014). Whilst
Myers (2017) agrees that inappropriate cross-examination should not be permitted, he argues that the
process itself is vital, highlighting the importance of questioning the witness in the search for truth
(Myers, 2017).
The English Court of Appeal, however, has also demonstrated dissatisfaction with the cross-
examination process, with a series of judgments declaring the inappropriateness of leading and ‘tag’
questions;7 advocating short simple questions with the onus placed firmly on the advocates to adjust to
the needs of the vulnerable witness;8 declaring that advocates do not have a given right to ‘put the case’
to the witness;9 and recommending ground rules hearings,10 where the judge directs on what needs to be
put in place to ensure fair treatment of the witness, particularly during cross-examination (Cooper et al.,
2015).
However, these rulings were mainly based on cases for child witnesses. An exception is a more recent
case11 in which questions asked of an adult defendant with significant intellectual difficulties were
deemed unfair and a factor in the quashing of his conviction. Do the same challenges as highlighted
for children in the Court of Appeal apply for children and adults with ID, or do these latter witnesses face
even greater communication challenges during cross-examination?
5. Sections 21BA and 21 BB of the Criminal Evidence (NI) Order 1999.
6. Sections 21A and 21B of the Criminal Evidence (NI) Order 1999.
7. R v W and M (2010) EWCA Crim 1926.
8. R v Barker (2010) EWCA Crim 4.
9. R v E (2011) EWCA Crim 3028; R v RK (2018) EWCA Crim 603; R v Wills (2011) EWCA Crim 1938.
10. R v Lubemba; R v JP (2014) EWCA Crim 2064.
11. R v Jones (2018) EWCA Crim 2816.
Morrison et al.
369
The aim of this paper is to report a systematic review of previous empirical research that could inform
the key communication challenges for people with ID during cross-examination. The objectives were to
unearth key communication challenges relating to the cognitive impairments and adaptive functioning of
both children and adults with ID and the impact of the challenges for the...
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