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How to: the cross examination of vulnerable witnesses (part 2)

This article is the second in a series which aims to explore some common themes in the cross examination of vulnerable witnesses by providing tips and illustrative examples.

You can read more in part 1 of the series.

Cross examining non-verbal witnesses – part 1

I have chosen to include this topic for two reasons: first, it is perhaps more common than one may think to encounter a witness who is, or may become, non-verbal. Second, drafting questions for such a witness requires creative thinking which broadens one’s skill set in more general terms.

This is a fairly lengthy topic and so it will be divided between two articles. In this part we will consider how to lay the foundation stones of the defence case when cross-examining a non-verbal complainant. The second part will deal with cross-examination regarding the alleged offence and the circumstances of the first complaint.

It is important to state at the outset that there are many different types of witness who may require this method of cross examination. For example, a witness could be mute as a symptom of a psychiatric condition. The witness may be an autistic person who is non-verbal or becomes so when under stress. The same could be true of a witness who suffers from PTSD. Extremely young witnesses may also refuse to give a spoken response to questions put to them, particularly when the questions concern details about the alleged offence. Normally the Registered Intermediary’s (RI) report will alert all parties to this potential issue but one should be alive to the possibility that a witness may become non-verbal, even if they have given narrative answers in the ABE interview.

I also prefer to prepare for the worst-case scenario rather than trying to adapt all of my questions whilst on my feet, should the witness become non-verbal. I have seen this happen in court and it caused a huge amount of embarrassment to all parties, not least the poor advocate concerned. Furthermore, I would argue that it is possible to ask a non-verbal witness anything that one would wish to ask of a witness who can give narrative answers. The questions and their sequence simply need to be adapted.

The scenario

The witness in our scenario is a 10-year-old autistic male, Joe. He complained to a schoolteacher that his foster mother, Lucy, would enter his bedroom when she believed him to be asleep and commit sexual assaults upon him. Lucy – our client – states that the complainant has fabricated these allegations because he was angry about the boundaries that she had imposed. He wanted to move back to live with his mum where he was allowed to do as he pleased. The disclosure to Joe’s teacher occurred the morning after Lucy had told Joe that he would not receive any pocket money that week because he had kicked a hole in his bedroom wall.

To make matters more challenging, there is also an inconsistency between Joe’s account in ABE and his first complaint to the teacher. In his first complaint he stated that his foster mother would record the assaults on her mobile ‘phone. In ABE he did not make reference to this and no incriminating material was found on the telephone. Lucy denies recording the sexual assaults.

Joe was non-verbal for part of the ABE interview. The RI’s report states that Joe may also become non-verbal if placed under stress in cross examination.

Yes/no questions

First, it is important to note that the Advocate’s Gateway Toolkit 6 (para. 5.28 and 5.29) states that a series of yes/no questions can elicit inaccurate responses. This is because the witness can become habituated to, for example, answering ‘yes’ to every question and give such a response even when the accurate answer is ‘no’. The toolkit therefore recommends reversing the structure of the questions to elicit a mixture of yes and no responses. However, there is at least one exception to this guidance: when cross examining an autistic witness, the additional processing effort required to decode and respond to ‘mixed structure questions’ may lead to fatigue. This fatigue can, in turn, impact upon the accuracy of the evidence and the witness’ ability to participate in the cross examination. The RI should therefore be asked which method of questioning is most appropriate for that particular witness.

Second, the RI should be asked at an early stage what communication aids they intend to bring to court. This could include cards showing emoticons, cards that read ‘yes’ and ‘no’ or cards which show ‘thumbs up’, ‘thumbs down’ and ‘thumb halfway’. This will inform the structure of your questions. You may also wish to include a ‘preamble’ to your cross examination and inform the witness that they don’t need to give spoken answers if they don’t want to, they can use the cards in front of them instead. This kind of courtesy to a vulnerable witness is not only professionally desirable but, in my opinion, does no harm to your client’s case in the eyes of the jury.

Lastly, in a case involving a complainant who communicates verbally, we would probably ask them direct questions such as ‘Do you like your foster mother?’. However, if our non-verbal witness were to indicate ‘no’, we could not then follow it up with the open-ended question ‘Why?’. It is therefore necessary to adopt a more deconstructive and lateral approach to your instructions.

Setting the backdrop

In our worked example, it would be helpful to seek instructions about the specific rules towards which Joe has expressed the greatest enmity. This allows us to ask a small number of questions about Joe’s life with his mother, to set the backdrop for the defence case. Using appropriate signposting, the cross examination may begin like this:

Joe, first I’m going to ask you some questions about what it was like when you lived with your mum.

Did your mum make you sit at the table to eat dinner?

Did your mum make you eat all of your vegetables?

We then need to elicit evidence of the existence of Lucy’s rules. Those questions will be followed by a further question designed to elicit evidence of Joe’s dislike. However, as was discussed in the first article in this series, simply asking Joe if he likes the rule could elicit an unreliable answer. He may answer ‘no’, not because he dislikes the rule, but because he was angered or upset by it instead. It is therefore preferable to invite the witness to disagree with a positive emotion. Thus, this section of the cross examination might be as follows:

Joe, now I want to ask you about what it was like living at Lucy’s house.

Did Lucy make you sit at the table to eat dinner?

If yes: Were you happy that Lucy made you sit at the table to eat dinner?

Did Lucy make you eat all of your vegetables?

If yes: Were you happy that Lucy made you eat all of your vegetables?

Putting the motive

Next, we want to move from the general to the specific. Ordinarily, we would simply put the alleged motive for making false allegations to the complainant, using a direct question. We would then follow that up with questions about the particular event which proved to be the final indignity. Obviously, we cannot do either of those things in this case. As a side note, the Learned Judge may or may not place restrictions upon you putting your client’s case, but for the purposes of this article we will assume that she has not (for more detailed guidance in relation to this see Toolkit 1 of the Advocate’s Gateway).

Signposting the change of topic again, the cross examination would read:

Joe, now I want to ask you about Lucy and whether you liked living at her house.

  1. Lucy says you didn’t like living at her house. Did you like living at Lucy’s house?
  2. Did you want to stop living at Lucy’s house because of all the rules she made?

Note that I have kept the verb the same (‘living at’) throughout this series of questions. Broadly speaking, this will be easier for an autistic person to process because it eliminates the need for the working memory to carry out additional decoding work. Changing the verb from ‘living at’ to ‘move out of’ in the second question requires the brain to hold onto the meaning of the first question and interpret the change of verb in light of that initial meaning. This can be challenging for an autistic witness.

Furthermore, ‘move out’ is not a literal phrase. When interpreted literally – as an autistic witness may – and in isolation from the meaning of the first question, it could mean ‘moving out of the house and going to school’. If Joe disliked school more than he disliked Lucy, he may answer ‘no’ and the defence case would be sunk. In this way, anything which impacts upon the accuracy of the evidence has the potential to be detrimental to the defence.

I hope that you have found this worked example useful so far. In the next article we will move on to consider how to cross-examine the complainant about the alleged offence and the circumstances of their first complaint.

If you are interested in learning more about working memory, literal interpretation and autism, you may find the following articles helpful:

If you would like to instruct Charlotte Surley, please contact Robin Driscoll, Senior Clerk to the Public Defender Service Advocacy Team on 0203 334 4253 or