Scene: an ordinary suburban home where A and B are getting ready to leave for work. But A’s car keys have gone missing…
A: You’ve seen my car keys, haven’t you?
B: Today? No, I don’t think so.
A: When did I mention today? Just answer the question: you’ve seen my car keys, haven’t you?
B: OK, no.
A: You’re quite certain of that, are you?
B: Well, no, I told you I don’t think—
A: So you have seen them, then.
B: I’m not sure…
A: They were on the sideboard, weren’t they?
B: I don’t know, I didn’t notice
A: You’re telling this household you didn’t notice the car keys on the sideboard?
A: I put it to you that you’re lying: the keys were on the sideboard
B: Well, I suppose they could have been, but—
A: Were they there or not?
B: (confused silence)
A: It’s a simple question, B. The keys were on the sideboard, weren’t they?
(B breaks down in tears, but at that moment C rushes in to say that the keys have been found in A’s jacket pocket, along with a Twix wrapper and 74p in change)
If someone you lived with behaved like A in this (made-up) vignette, you’d probably tell them to f*** off and stop interrogating you. Such overtly hostile questioning is rare in everyday conversation, and if it does happen you’re entitled to protest. But there’s one real-life situation where you can’t just tell the questioner to stop: the cross-examination of a witness in court.
Cross-examination is the bit where a witness is questioned by the lawyer acting for the ‘other side’. If the prosecution in a burglary case calls an eye-witness who says she saw the defendant breaking into someone’s house, the defence will want to test the strength of her evidence, and if possible take issue with her version of events. Maybe she saw someone who wasn’t, in fact, the defendant; maybe she didn’t see anything at all. If her answers suggest that her original account was mistaken, dishonest or confused, that could introduce the ‘reasonable doubt’ which will get the defendant acquitted.
There’s a reason I’ve been thinking about this recently. Earlier this month, Buzzfeed published the text of a letter written by a woman who had been raped while she lay unconscious behind a dumpster. The letter was addressed to Brock Turner, the man who had been convicted of assaulting her. Parts of it were read out in court, and when Turner was sentenced to only six months in prison (a decision which is now the focus of a campaign to recall the judge responsible) its author released the full version for publication.
As many commentators have said, the letter is a powerful document, bearing eloquent witness to the impact of sexual violence on a woman’s life. But I was also struck by what it says about the language of cross-examination. The writer describes the questions put to her by Turner’s lawyer as
…invasive, aggressive, and designed to steer me off course, to contradict myself, my sister, phrased in ways to manipulate my answers.
She goes on to give an example of this manipulative phrasing:
Instead of his attorney saying, Did you notice any abrasions? He said, You didn’t notice any abrasions, right?
‘You didn’t notice any abrasions, right?’ is what lawyers call a ‘directive leading question’: its grammatical form directs the addressee to a particular, preferred answer. My car keys vignette begins with another example: ‘you’ve seen my car keys, haven’t you?’ Grammatically, this is a ‘tag question’, a statement with a question tagged onto the end which invites the addressee to confirm the truth of the statement. The preferred answer to ‘you’ve seen my car keys, haven’t you?’ is ‘yes [I have]’; if the question had been ‘you haven’t seen my car keys, have you?’ the preferred answer would be ‘no [I haven’t]’. ‘You didn’t notice any abrasions, right?’ predicts ‘no [I didn’t]’. Whether the preferred answer is ‘yes’ or ‘no’, the point is that tag questions favour one answer over others. You don’t have to give the preferred answer, but avoiding it takes more effort, and if you repeatedly withhold confirmation you may come across as evasive or obstructive.
There are other, less directive ways to ask for information. If the question were ‘have you seen my car keys?’—grammatically a yes/no question rather than a tag question—it would still be ‘leading’ in the legal sense, because it presupposes that there are some car keys which the addressee either has or hasn’t seen. A non-leading question would be something like ‘what did you see?’ (not very likely in the lost car keys scenario, but a reasonable thing to ask someone who claims they witnessed a crime.) But ‘have you seen my car keys’ and ‘did you notice any abrasions’ are not directive leading questions, because the linguistic form does not imply that one answer is preferable to the other.
Last year, the forensic psychologist Jacqueline Wheatcroft called for directive leading questions like ‘you’ve seen my car keys, haven’t you?’ to be banned in court proceedings. She expressed particular concern about their use in rape and sexual assault trials. These cases—if they get to court at all—often turn on which of two competing accounts the jury believes. In that situation the main prosecution witness will be the complainant, and it’s likely that the defence’s cross-examination will focus on trying to discredit her account. Directive leading questions are commonly employed for that purpose, and this can make testifying in court even more traumatic for victims.
As an example Wheatcroft cites the case of Frances Andrade, who committed suicide in 2013 after giving evidence against her former teacher Michael Brewer at his trial in Manchester (he was subsequently found guilty of indecently assaulting her, and sentenced to six years in prison). One of the questions put to Ms Andrade during cross-examination was: ‘utter fantasy, is it not?’ She was repeatedly presented as a liar and a fantasist, an experience which she described to several people as feeling like another assault.
The standard response to this kind of concern is that yes, trials can be horrible for victims, but people accused of serious crimes are entitled to a defence: robust questioning is necessary to test the strength of the case against them. So it’s interesting that Jacqueline Wheatcroft’s argument against directive leading questions isn’t just about their negative effect on the victim. Her research suggests that directive leading questions can undermine the larger aim of delivering justice, because they make it more likely that people will give factually inaccurate answers.
Wheatcroft and her colleague Sarah Wood conducted a study in which 80 subjects watched a four-minute video clip, and then answered a series of questions (orally, to simulate courtroom conditions) about the events they had seen in the video (it showed a reconstruction of a real crime, where a man followed a young woman home and then entered her house). All the questions were of the ‘leading’ type, and required a simple yes or no answer, but the subjects were split into two groups, with one group responding to non-directive questions like ‘was the street called Willow Street?’ while the other half were asked directive leading questions like ‘the street was called Willow Street, wasn’t it?’
The study found that the non-directive questions elicited a higher percentage of accurate answers. Although the experimental setting was presumably less stressful than an actual cross-examination in court, the subjects were still susceptible to the pressure a directive question exerts to accept its embedded presuppositions, even if they misrepresent reality.
Some directive questions are especially confusing because they embed more than one potentially disputable presupposition. An example in my ‘car keys’ drama is ‘so, you’re telling this household you didn’t notice the car keys on the sideboard?’ This (a) presupposes that the car keys were on the sideboard (rather than somewhere else) and (b) asserts that the addressee, B, must have noticed them. While B debates which of these propositions to challenge, she becomes noticeably hesitant, allowing A to jump in with an interpretation of her hesitancy as a sign that she isn’t being honest.
Most people don’t realise that the form of a question can affect their ability to give an accurate answer. Wheatcroft and Wood asked their research subjects to rate their confidence in each answer they gave on a scale from ‘not at all confident’ to ‘absolutely certain’. On this measure there was very little difference between the non-directive and directive questions, although objectively the directive questions elicited significantly more inaccurate answers.
One way to address this issue is through witness preparation: explaining to witnesses before a trial what kinds of questions they are likely to face, providing concrete examples and possibly using role-play to give a witness practice in responding. Wheatcroft and Wood’s study tested the usefulness of a number of witness preparation strategies. They split both their participant-groups into four subgroups: one was a control group, receiving no special preparation, while the others were prepared in different degrees of detail. One group was warned in general terms that the experimenters might use leading questions, another was presented with examples of what to look out for, and a third was told they could ask for questions to be repeated or rephrased.
Though one of these strategies (giving examples) appeared to work better than the others, its effect was still quite limited: all groups remained more likely to give factually wrong answers if the form of a question was directive. As the researchers point out, that isn’t necessarily an argument against witness preparation, which may help witnesses in other ways (by making them feel less anxious, for example). But preparation does not solve the problem of inaccurate testimony. As the researchers sum up their conclusions:
Where directive leading questions are incorporated into cross-examination procedure… a witness’s overall accuracy will be reduced regardless of the type of preparation the witness receives.
This study challenges the belief that ‘robust’ questioning is justified by the need to test the evidence rigorously. There’s nothing rigorous about questioning people in a way that confuses them and prompts them to make mistakes. But if we’re interested in the specific issues that arise in sexual assault trials, it seems clear that we can’t just focus on the linguistic form of the questions put to complainants. Challenging the assumptions of a particular question isn’t easy; but what’s even harder is challenging the more general assumption that women are ‘liars and fantasists’.
It’s because of that general assumption that complainants are routinely faced with questions like the one put to Frances Andrade—‘utter fantasy, is it not?’ Rephrasing that as a non-directive question (like ‘is this a fantasy?’) would make very little difference. However it’s formulated, it’s not in any meaningful sense a test of the witness’s honesty and reliability. It’s a rhetorical device for suggesting to the jury that the witness is lying, and it exploits the widespread belief that false accusations of rape are more common than rape itself.
The letter to Brock Turner includes a long list of the questions the writer was asked by Turner’s lawyer:
How old are you? How much do you weigh? What did you eat that day? Well what did you have for dinner? Who made dinner? Did you drink with dinner? No, not even water? When did you drink? How much did you drink? What container did you drink out of? Who gave you the drink? How much do you usually drink? Who dropped you off at this party? At what time? But where exactly? What were you wearing? Why were you going to this party? What’ d you do when you got there? Are you sure you did that? But what time did you do that? What does this text mean? Who were you texting? When did you urinate? Where did you urinate? With whom did you urinate outside? Was your phone on silent when your sister called? Do you remember silencing it? Really because on page 53 I’d like to point out that you said it was set to ring. Did you drink in college? You said you were a party animal? How many times did you black out? Did you party at frats? Are you serious with your boyfriend? Are you sexually active with him? When did you start dating? Would you ever cheat? Do you have a history of cheating? What do you mean when you said you wanted to reward him? Do you remember what time you woke up? Were you wearing your cardigan? What color was your cardigan?
Grammatically speaking, these questions are a mixed bunch, and none of them are unequivocally directive. But that doesn’t mean they’re unproblematic. As the letter-writer herself commented, the lawyer’s goal in asking them was to discredit her by any means necessary:
I was pummeled with narrowed, pointed questions that dissected my personal life, love life, past life, family life, inane questions, accumulating trivial details to try and find an excuse for this guy who had me half naked before even bothering to ask for my name.
What motivates defence lawyers to ask questions like these is their understanding that we as a society are inclined to make excuses for men like Brock Turner, and conversely to blame women for provoking or deserving what is done to them. If that were not the case, questions like ‘how much do you usually drink’ and ‘are you sexually active’ (let alone ‘when did you urinate’ and ‘what color was your cardigan’) would serve no purpose.
So, while I support Jacqueline Wheatcroft’s call to ban questions whose form confuses witnesses and prompts inaccurate answers, I also support the JURIES campaign, which calls for jurors in sexual violence cases to be briefed with factual information designed to counter the myths and stereotypes we’ve all been fed throughout our lives. Our justice system is adversarial; but if its aim is to deliver justice, cases must be won by marshalling evidence, not exploiting prejudice.