EWJ June 2024 web - Journal - Page 82
Cross-Examination Report Calls for
Improvements in Technology and
Training to Support Vulnerable Witnesses
Poor technology, trial delays and insufficient training are hampering efforts to make
cross-examination less distressing for vulnerable and intimidated witnesses (VIWs) and achieve
best evidence in criminal trials, according to a new report.
Researchers from Nottingham Trent University
(NTU) and the University of Nottingham, funded by
the Nuffield Foundation, reviewed whether new approaches to cross-examination which move away from
the traditional advocacy model have been successful
in both putting witnesses at ease and achieving best
evidence.
Professor Jonathan Doak, Nottingham Law School,
said: “Our data highlighted many different ways in
which vulnerable witnesses are cross-examined as opposed to other kinds of witnesses, but the changes
have yet to lead to a coherent and consistent set of
practices for achieving best evidence for all kinds of
vulnerable witnesses.
This included observation of 40 jury trials involving
cross-examination of VIWs and non-VIWs across the
UK and Ireland, interviews with judges, prosecuting
and defence advocates and intermediaries, and a
linguistic analysis of court transcripts.
“Instances of bad practice were encountered as well
as good practice and a number of the adaptations that
have been made for vulnerable witnesses have yet to
be made for vulnerable defendant witnesses.”
Findings revealed an acceptance and willingness on
the part of practitioners to improve the cross-examination experience for the witnesses and to help them
achieve best evidence. The changes were also felt to
be compatible with the right to a fair trial.
Professor John Jackson, University of Nottingham,
added: “There are many improvements and innovations that can be made on varying scales, from barristers, solicitor-advocates, judges and intermediaries
coming together to share experiences and learn about
the perspectives of other professional groups, to the
creation of pilot schemes in particular court centres to
promote best practice.”
However, the aim of achieving best evidence was often
prevented by issues such as poor technology - with trials delayed due to the poor quality of witness recordings and pre-recorded cross-examinations postponed
when the recording failed.
In terms of the language used by cross-examiners, Dr
David Wright, Associate Professor in Linguistics at
NTU’s School of Arts and Humanities, stated: "The
linguistic analysis of the trial transcripts shows that, in
some cases of good practice, those cross-examining
vulnerable witnesses were asking clear and short questions and were signposting the witness through the
questioning.
The report highlights the need for all jurisdictions to
improve and standardise the quality of recordings and
the environment where witnesses provide their evidence, and to reduce the disruption and delays in trials caused by incompatible IT systems and
poor-quality footage.
“Elsewhere, we found the routine use of tagged questions, comments-as-questions and other types of complex and controlling questions, which are known to
be difficult for vulnerable witnesses. There may be an
opportunity for additional training on the language
of cross-examination.”
The data also looked at the special measures in place
for vulnerable witnesses and recommends that the eligibility requirements be simplified so that all VIWs
are entitled to the full range of measures.
It also suggests that steps should be strengthened
across the jurisdictions to ensure that witnesses are
properly prepared for giving evidence in advance of
trial, including consistent use of familiarisation measures and advice on what giving evidence will entail –
as well as giving them the opportunity to practice
speaking over a live link.
Ash Patel, programme head for Justice at the Nuffield
Foundation, said: “This important study reveals how
the process of cross-examination in court is experienced by witnesses, especially the most vulnerable. It
paints a mixed, and nuanced, picture of how they are
treated when providing testimony, and provides wellgrounded recommendations to improve their experience and to help them provide their best evidence.”
In addition, the report advocates for all evidence from
a vulnerable witness – evidence-in-chief, cross-examination and re-examination – to be recorded in one
hearing before trial.
For further information on Mapping the Changing
Face of Cross Examination in Criminal Trials, visit the
project website or read the report online.
https://www.ntu.ac.uk/research/groups-and-centres/projects/mapping-the-changing-face-of-cross-examination
Researchers recommend improvements to training, including the introduction of vulnerable witness training
as an essential part of the judicial training syllabus and
the consideration of mandatory training for advocates.
EXPERT WITNESS JOURNAL
80
JUNE 2024