Chapter 19 Vulnerable Witnesses

There is one type of witness, in a minority of cases, for whom the questioning rules I have been suggesting go out the window.

These are VULNERABLE WITNESSES.

A witness is ‘vulnerable ' if he or she is thought by the court to have a limited ability to understand questions.

Young children;

Older children or adults with severe learning disabilities; Persons with ADHD, Autism, or Asperger’s syndrome; Persons suffering from mental disorders, such as schizophrenia, bipolar affective disorder, post-traumatic stress disorder, and dementia.

Vulnerability arises where the court considers, often but not always with the aid of a formal report, that the ability of a witness to give complete, coherent and accurate evidence may be inhibited by the ability to understand questions, individually and collectively, owing to a significant impairment of intelligence and social functioning^, which would of course apply to the above persons.

In the context of this chapter, a witness is not ‘vulnerable’ simply because he or she feels the prospect of giving evidence frightening or difficult.

There is now a strong movement at the Bar of England and Wales, with growing case law, which is likely to be exported to other jurisdictions, and which is already influenced by advances elsewhere, that vulnerable witnesses require a different questioning technique.

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There is an excellent website concerning vulnerable witnesses, named:

THE ADVOCATE’S GATEWAY.

It is at www.theadvocatesgateway.org[2].

The Advocate’s Gateway is hosted by the Advocacy Training Council - a body created by the four Inns of Court of the Bar of England and Wales - chaired by Professor Penny Cooper, and includes representatives of the Advocacy Training Council, Judicial College, Law Society of England and Wales, Solicitors Association of Higher Court Advocates, Criminal Bar Association, Crown Prosecution Service, Chartered Institute of Legal Executives and the Ministry of Justice.

There is a particularly useful online video entitled ‘A Question of Practice’, lasing 30mins, which shows the difficulties associated with vulnerable witnesses, preparing for trial, and how to ask questions - I respectfully suggest you watch it - it has emphatic endorsement from Lord Judge, who at the time of recording was the Lord Chief Justice, which gives it especial weight.

In addition, the website offers ‘toolkits’ as to how to deal with the different types of vulnerable witness, and at the time of writing, September 2014, there are 12 such toolkits.

And it is all free.

It is important to familiarise yourselves with this material as I surmise shortly only those who can show they have adapted their advocacy will be permitted to appear in cases concerning vulnerable witnesses.

The aim of changing the rules about how to question someone who is vulnerable is to ensure that the trial process takes account of communication abilities, so that what is said is what the witness wants to say. Of course, it remains the job of the advocates and the tribunal of fact to determine whether what is said is the truth, but at least the witness has had a chance in court to say as each wants said.

While there is a lot of material to consume, I sense there are five primary rules, and these give rise to advocacy challenges.

A tag question is where you put a statement, and then tag it with something like: that’s right isn’t it?

Easy examples are: you went to the park, didn’tyou?

the car was red, wasn’t it?

This is a challenge because tag questions are the bread and butter of standard cross-examination. Leading questions in the traditional sense are not allowed.

The reason for disallowing tag questions is that a person assessed as vulnerable is unlikely to understand the use of the negative, as interrogatory, at the end of a statement of fact - and will likely agree with the statement, in confusion, and for want of not seeming silly not to have understood it.

Let's look at the following question:

Jim did not put his hand inside your top and touch your breast, did he?

This requires the witness to:

1 Assess whether or not the statement part of the question is true, namely, ‘John did not put his hand inside your top';

2 Understand that the tag expresses the advocate's (or more precisely, his client's) point of view, and is not necessarily true; and

3 Understand that a positive tag ‘did he’ attaches to a negative question ‘John did not put his hand inside your top’ - and then understand how to answer such a question.

When you look at it in this way, it is easy to see why for a vulnerable witness answers to tag questions will often be at best ambiguous and unreliable and at worst wholly wrong.

The second rule is to maintain a NEUTRAL tone and body language.

This is a challenge because advocates instinctively inject tone and poise into many questions, as part of being assertive to win their case.

A neutral tone is important because a vulnerable witness is likely to be too cooperative and wish to please, and will therefore agree with a figure of authority, exercising that authority through forceful tone, as you may seem in your wig and gown, irrespective of whether what is said is what the witness really wants to say, which again is hardly fair.

It follows that we must avoid suggestive questions like:

I suggest to you that... or

It’s right, isn ^,t it, that. (bearing in mind, this again is a tag)

The third rule is to keep questions really really very very SIMPLE.

Simple questions are always a challenge - it's a skill advocates never stop learning.

Ask the simplest questions possible, with the least number of words, in the shortest possible time, and in the simplest possible order, using signposting to help the witness follow the direction of questioning.

Make sure there is only one point at a time, in one clause, with no conditional subjunctives and semi-colons.

You should not be asking: Ifyou were on the top bunk, and it was dark, with the curtains drawn, you could not have seen, and therefore did not see, what was happening on the bottom bunk, is that not so?

It is better as:

Have you got a bunk bed in your bedroom?

Do you sleep on the top bunk?

And your sister sleeps on the bottom bunk?

When you went to bed on Christmas Eve, did your mum close the curtains?

Did your mum turn off the light?

Was it dark in your bedroom?

Did you stay in your bed - on the top bunk?

Did your sister stay on the bottom bunk?

Without the light on, is it hard to see your sister?

Simplicity is an easy concept, though hard to achieve. The difference is that, whereas for an ordinary witness questions can become more complex if you choose, for a vulnerable witness the judge will stop you.

Features of simplicity are:

1 Keep things signposted and chronological, though be

aware a vulnerable witness may become confused by times and dates, sometimes having little concept of them, preferring instead to reference an event to a place.

Eg - I want to talk to you about what happened in your bedroom, not

1 want to talk to you about 10pm on 6 June 2013 - (and note the signposting).

2 Refer to people by their first names, constantly, rather than more formally, or as he or she.

Eg - Which bed did John sleep in? not which bed did Mr Smith sleep in? and not which bed did he sleep in?

3 Avoid asking questions negatively

Eg - It is not the case that John was not allowed in your bedroom, was he? This would be better as

Was John ever in your bedroom?

Was he often in your bedroom?

Was John allowed in sometimes?

So, to refine their simplicity, it may make sense TO WRITE OUT THE QUESTIONS IN ADVANCE.

This way you cannot go much wrong, and it is a good discipline.

The fourth rule is, generally, do not inhibit CHOICE.

This is a challenge because inhibiting choice is exactly what you want to do, particularly if cross-examining, as otherwise you invite loss of control.

An example of inhibiting choice would be to ask a closed word-choice: was the car red, green or blue? - when the witness really wants to say the car was yellow, but now thinks yellow is not a viable answer and will choose from the choice offered, and therefore give inaccurate evidence in terms of what the witness wants to say.

The better question, even in cross-examination, would be the open question: what colour was the car? Or there could be a series of signposted closed yes-no questions, alerting the witness he or she can disagree with each choice offered: Let’s go through the colours of the rainbow, and you tell me which colour the car was -

was it red?

was it green?

was it blue?

was it yellow? etc

The fifth rule is HELP the witness to feel at ease.

This is a challenge because in cross-examination this may be the last thing the client wants.

However, it will assist your credibility, and therefore your later persuasiveness, if the tribunal of fact can see you have taken an accommodating position towards an obviously vulnerable person.

To help:

1 Make eye contact;

2 Pause and speak slowly;

3 Refer to the witness by their preferred name, often;

4 Be conscious of the preferred use of language for the witness, who for example may have a private word for a private part of the body;

5 Be conscious of the witness needing breaks;

6 Be conscious of miscommunication, which often shows itself through long pauses, or worried looks, where through embarrassment most will not easily admit they have not understood; and

7 Be ready for the questioning breaking down, and therefore be ready to help the witness recover, perhaps by suggesting a sip of water, or a break, of by being reassuring the questioning will soon be over.

TAG - NEUTRAL - SIMPLE - CHOICE - HELP.

These appear the primary rules.

As you can see, the ten commandments of cross-examination go out the window - thud!

The point is that a vulnerable witness is no match for an able advocate - the problem is you can often get them to say anything - which is not what a trial should be about.

A trial should be about testing evidence not exploiting comprehension.

The development of a separate questioning technique for vulnerable witnesses, though now widespread, used to be controversial. As you can see, it affects cross-examination more, as it limits standard question models, while direct examination of vulnerable witnesses often takes the form of a prepared video, with only some supplementary questions. Many advocates are uneasy their art as cross-examiners is being blunted by an unfair erosion of their technique, giving a witness who may be playing up to vulnerability an advantage to tell untruths, unrestrained from the control mechanisms mentioned in earlier chapters.

However, this is not really so.

Vulnerability is often professionally assessed, by a person with proper training, often a psychiatrist or psychologist, who may prepare a formal report as to how and why the witness will struggle to understand. Or it is obvious, as with a child.

It is not easily faked.

And the advocate is then often allowed unusual latitude. For example, after cross-examination, a judge may permit the advocate to explain what has not been put, like the case theory, or inconsistencies in previous statements, because these would involve tag questions which the witness will not comprehend, and the inconsistencies can be elicited as hearsay, exceptionally, for example through another witness.

So there are methods of levelling the playing field.

Like I say watch the video.

It can only be fair to help the vulnerable to give their evidence as they would mean it.

This area is still developing, and growing, and its practice has not yet standardised. A lot turns on what is agreed with the Judge at specialised pre­trial hearings to determine the trial ‘ground rules' - and this in turn means that early preparation is essential.

In a sense, vulnerable witness advocacy is not much more than asking questions very clearly, and to master it will mean mastering advocacy generally. Embrace it - it will test you, and make you better.

There will be much written in the coming years - so please keep your eyes on The Advocate's Gateway.