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.
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.
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.
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.
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.
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.
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.
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.
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.
“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.”
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.”
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.
“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.”
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 well-grounded recommendations to improve their experience and to help them provide their best evidence.”
About Nottingham Trent University
Nottingham Trent University (NTU) received the Queen’s Anniversary Prize for Higher and Further Education in 2021 for cultural heritage science research. It is the second time that NTU has been bestowed the honour of receiving a Queen’s Anniversary Prize for its research, the first being in 2015 for leading-edge research on the safety and security of global citizens.