Cross-Examination of Vulnerable Witnesses—Towards a Blueprint for Re-Professionalisation
| Author | Adrian Keane |
| DOI | 10.1350/ijep.2012.16.2.397 |
| Published date | 01 April 2012 |
| Date | 01 April 2012 |
| Subject Matter | Article |
CROSS-EXAMINATIONOF VULNERABLE WITNESSES
Cross-examination of
vulnerable
witnesses—towards a
blueprint for
re-professionalisation
By Adrian Keane*
Barrister, Professor of Law, City Law School, The City University
London and sometime Dean of the Inns of Court School of Law
Abstract There is now an abundance of research, across a range of
jurisdictions, to establish that cross-examination techniques tradition-
ally deployed in adversarial systems can confuse vulnerable witnesses,
reduce their ability to comprehend the issues and diminish the cogency
and accuracy of their testimony. The nature of the problem and its scale
will be illustrated in this article primarily by reference to children and
people with mental disabilities or learning difficulties. The core of the
problem is the limited understanding on the part of some advocates of
the special needs of vulnerable witnesses and their reluctance or
inability to abandon or modify traditional cross-examination tech-
niques. The scale of the problem is considerable, having regard to the
growth in the number of vulnerable witnesses and evidence of their
negative perceptions of the experience of testifying. Except in
jurisdictions in which the cross-examination has effectively been
removed entirely from the hands of the advocate, legal developments
have focused on the use of pre-trial recordings, intermediaries,
improved judicial training and enhanced powers to curtail improper
doi:10.1350/ijep.2012.16.2.397
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2012) 16 E&P 175–198 175
* Email: A.N.Keane@city.ac.uk. I am grateful to Rudi Fortson QC and my colleagues Marcus Soanes
and David Wurtzel, whose comments have affected the content and shape of this article. The usual
caveat applies.
cross-examination. These reflect an ‘accommodation approach’ that has
had a limited educative effect on practitioners. The professional duty of
the advocate is not to ignore or take advantage of the difficulties faced
by vulnerable witnesses, but to develop new methods to test their
evidence. There is an urgent need for re-professionalisation, i.e. the
development and introduction of new systems for the training and
accreditation of advocates, involving a fundamental culture change
and the acquisition of new specialist knowledge and skills. This article
explores what such re-professionalisation should involve. It analyses
critically two recent sets of proposals: proposals for the implementation
of a quality assurance scheme put forward by the English legal
regulatory authorities, and proposals for training and accreditation
schemes put forward by the Advocacy Training Council, the joint body
of the four Inns of Court with responsibility for overseeing standards of
advocacy training for the Bar of England and Wales. Regard is also had
to relevant pedagogical precepts and recent relevant case law.
Keywords Child witness; Vulnerable witness; Cross-examination;
Advocacy standards
The core of the problem
n the gardens of my Inn, Inner Temple, is the statue of a boy that bears
the epitaph, the words from a Charles Lamb essay: ‘Lawyers, I suppose,
were children once’. That reflection is a fitting introduction to this
article. Innocent children say what they think. Lawyers say what they think needs
to be said to win their case. They would do well to remember that they were
children once and then, like others with vulnerabilities, had special needs. It is
now widely recognised that children, people with learning difficulties or disabil-
ities of the mind or body, older adults, those who have experienced a traumatic
event and other kinds of vulnerable individuals have particular needs and face
particular problems when appearing as witnesses, especially when they undergo
cross-examination. The nature and scale of the problem will be illustrated, in this
article, primarily by reference to children and people with mental disabilities
or learning difficulties. Their needs and problems stem from their levels of
cognitive or linguistic development. There is an abundance of research, including
empirical, linguistic and psychological research, across a range of jurisdictions, to
indicate that the deployment of cross-examination techniques of the traditional
kind described, promoted and sometimes glorified in advocacy texts can confuse
vulnerable witnesses, reduce their ability to comprehend the questions and
diminish the cogency and accuracy of their testimony. The core of the problem is
the limited understanding on the part of some advocates of the special needs of
vulnerable witnesses and their reluctance or inability to abandon or modify tradi-
tional approaches to either the content or manner of their questioning. It will be
176 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
CROSS-EXAMINATION OF VULNERABLE WITNESSES
I
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