Dateline: March, 2011, Issue 1

How does instruction in attorney cross-examination questioning techniques affect a witness's answers?

Witnesses are confronted frequently in cross-examination with complex and leading questions that contain multiple parts, negatives, double-negatives, advanced vocabulary and legal terminology. Witnesses have difficulty deciphering and answering such questions accurately.

Ellison and colleagues (2010) investigated whether instructing witnesses about attorneys' cross-examination questioning techniques could improve the accuracy of answers witnesses provide.

Numerous adult witnesses watched a videotaped crime and then were cross-examined about the crime in a mock courtroom environment by an attorney. Before undergoing cross-examination, half of the witnesses received instruction in the form of a leaflet that:

Some witnesses underwent cross-examination that used complexly phrased questions, while others were asked simplified questions. Complexly phrased questions were leading, multipart, contained advanced vocabulary, and used double negatives. Simplified questions were still leading and multipart, though used less complex vocabulary and were devoid of double negatives. Other than these phrasing differences, the set of questions was the same for all witnesses.

Witnesses instructed in attorneys' cross-examination questioning techniques offered incorrect responses, on average, to 12% of the questions they were asked; uninstructed witnesses had an error rate 52% higher. Instruction in attorneys' cross-examination questioning techniques was particularly helpful to witnesses confronted with complexly phrased questions: witnesses not receiving this instruction made 66% more errors than witnesses receiving instruction.

For leading questions, witnesses instructed in attorneys' cross-examination questioning techniques made significantly fewer single responses to multipart questions, and recognized inaccurate premises embedded within questions significantly more often as compared to uninstructed witnesses.

Without instruction, witnesses often were confused by attorneys' questions in cross-examination and feel inhibited from asking for clarification due to intimidation and/or the pace of questioning. Witnesses receiving instruction in attorneys' cross-examination questioning techniques asked for clarification nine times more often than those not so instructed.

Witnesses reported that the instructional leaflet had usefully told them what to expect during cross-examination, explained how the questions could or would be asked, made it easier to answer the questions, and provided them the self-assurance to speak up and ask for help when they needed it.

In sum, instructing witnesses about attorneys' cross examination questioning techniques significantly improves answer accuracy. Witnesses who receive such instruction make fewer errors when testifying, and more often seek clarification when they are confused.

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.