Dateline: January, 2011, Issue 1

How does cross-examination question phrasing affect witness accuracy?

Attorneys frequently ask witnesses leading and complex questions in cross examination that contain multiple parts, negatives, double-negatives, advanced vocabulary and legal terminology. Many of these questions demand a yes or no response.

Ellison and colleagues (2010) explored the extent to which witnesses can answer leading and complex cross-examination questions accurately. In this research, numerous adult witnesses watched a videotaped crime and then were cross-examined about the crime by an attorney using one of two variations of a question script. One script variation used complex phrasing (i.e., leading questions, multipart questions, complex vocabulary, double negatives). The other script variation used simplified phrasing (i.e., leading and multipart questions, but with simplified vocabulary and no double negatives). Other than these phrasing differences, the question script was the same for all witnesses.

Witnesses made errors answering 16% of the simplified questions, and committed 35% more errors when answering the complexly phrased questions.

Witnesses' errors in answering leading questions include being more likely to agree than disagree with the proposition in the question, and answering multipart questions as if only one answer was required.

Witnesses were less accurate when answering questions containing advanced vocabulary, and this accuracy decreased even further when the advanced vocabulary was combined with complex syntax such as double negatives.

Despite the difficulty witnesses experienced with leading and complexly phrased questions, almost no requests for clarification were made. Witnesses said that they were too intimidated to ask or were inhibited from doing so by the quick-fire pace of cross examination. Many witnesses also thought that they had fully understood all questions when they had not, an effect particularly pronounced when questions were complexly phrased.

Adult witnesses make errors in answering cross-examination questions when questions are leading, complexly phrased, or mistakenly assumed to be understood. The researchers conclude that instructing witnesses in attorneys' cross-examination questioning techniques would improve witness accuracy.

Source Ellison, L. & Wheatcroft, J. (2010). "Could you ask me that in a different way please?" Exploring the impact of courtroom questioning and witness familiarization on adult witness accuracy. Criminal Law Review, (11), pp. 823-839.