Rough justice as courts witness increasing confusion in the dock

As detectives are on the verge of bringing a notorious criminal to justice their star witness has an attack of nerves. Hard-nosed defence lawyers deftly pick holes in the prosecution and the case looks like it's about to crumble. At the last minute the witness finds their voice and delivers a powerful testimony that no jury could ignore.

However, in real life Hollywood endings don't happen very often and court cases rarely read like an episode of Judge John Deed. In fact, according to new research present methods of cross-examination leave many witnesses at best confused. At worst, experts fear the daunting process of sitting in the dock allows potentially vital evidence to slip through the net.

"It's a very unfamiliar situation and for many people their first experience of court is when they step inside the dock," says Dr Louise Ellison, a senior lecturer in law at the University of Leeds, who is calling for witnesses to be given better advice and guidance before they take the stand.

"People are going into the witness box with very little knowledge and preparation. The lay person has very little idea of what to expect and this understandably impacts on how their evidence comes across.

"It puts witnesses at a disadvantage and barristers are able to exploit their inexperience. The tactics and language used in cross-examination are all about discrediting the witness and undermining their evidence. Lawyers often ask complex questions, use double negatives and ask for a 'yes' or 'no' answer to an issue that is actually much less clear-cut.

"Witnesses can be left feeling angry that lawyers have twisted their words and that their answers have been manipulated by lawyerly tricks."

Working with forensic psychologist Dr Jacqueline Wheatcroft from the University of Liverpool, Dr Ellison's research involved showing a group of people footage of a crime as though they were eye-witnesses. They were then subjected to the kind of questioning techniques they might encounter in court.

Those who handled the cross-examination best – and crucially, gave the most reliable evidence – were those who had received written guidance on what they were likely to face in the witness box prior to questioning.

"Barristers often fire questions at witnesses in quick succession," adds Dr Ellison. "Because of the very formal setting of the courtroom they are often unsure whether they are allowed ask for clarification. They can become quite flustered and answer yes or no to a question which they haven't properly understood.

"Simply by telling witnesses beforehand that if they don't understand they should speak up and it is perfectly within their rights to challenge the words of a barrister and not to feel pressured into agreeing with a statement they know is untrue has a massive impact."

While witnesses are currently offered a chance to visit the

court prior to the start of a trial, they aren't given any practical advice as to the nature of prosecution questioning. Historically, the reluctance to introduce guidance has been down to fears coaching could have a negative impact on the outcome of trials.

"No one wants to see witnesses who are so rehearsed on the specifics and pitfalls of a case, that it prevents them answering honestly and spontaneously," says Dr Ellison. "But there's a difference between coaching and giving general advice and support. In 2005, the Court of Appeal ruled that it was permissible to engage in what's known as witness familiarisation.

"The problem is that wheels of change turn very slowly in the criminal justice system and while courses are available they are largely aimed at police officers and expert witnesses.

"The reality is that if a witness emerges from a trial feeling their evidence has been misrepresented and words have been put into their mouth it inevitably makes them less likely to engage with the criminal justice system again and undermines the accuracy of trial verdicts."

Dr Ellison has now sent a copy of her findings to various criminal justice organisations and hopes common sense will prevail.

"I've been racking my brains to think of the arguments against giving people simple and clear guidance," she says. "I can't think of any, but we'll just have to wait and see what happens."