Joanne Morrison (Lecturer in Intellectual Disabilities, St. George’s University & Registered Intermediary)
Introduction
Some academics and practitioners consider cross-examination to be less of a truth seeking exercise and more about ‘winning’ (the case) (Doak. et al., 2021; Keane, 2012; Morley, 2015). In fact, cross-examination is considered a battle or a contest to be won (Morley, 2015) and even by the court[1] as a battle tool – “a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of its story.” (Doak. et al., 2021, p.25). If cross-examination is indeed a battle, then communication skills could be considered essential armoury, with the prosecution advocate and the defendant as opponents in the battle. This blog examines communication during cross-examination when a defendant has intellectual disabilities and asks if the vulnerable defendant possesses the same level of communication armoury as the advocate in order for cross-examination to be considered a fair communicative exchange.
Communication with defendants with intellectual disabilities
Communication between two people is known as ‘interpersonal communication’ (Berger, 2014), which requires some form of interaction; that is between two or more people in two or more directions (Griffiths and Smith, 2017). How individuals communicate requires a complex and intricate process that can be difficult to define (Airenti, 2017; Hargie, 2016). Various theories attempt to further explain the complexities within a communicative exchange; many emerging from the 1949 model of Shannon and Weaver, which describes information as transmitted from a communicator to a receiver, but which has long been considered too simplistic (Thompson, 2003). Other models have introduced further impacting concepts of: a ‘medium’ or way in which a message is sent (Sapienza et al., 2015); communication partners with a relationship and connection (Berger, 2014; Capella, 1987; Fogel, 1995); a continuous active process of modifying actions (Fogel, 1995, 1993); the impact of internal factors of each partner (Stamp, 1999); and the impact of external factors (Johnson et al., 1996).
When a defendant has a diagnosis of intellectual disability (ID) this indicates that, from childhood, they have had an impairment of intelligence (IQ below 70) and an impairment of adaptive functioning; that is conceptual skills of language, literacy and numeracy, social skills, and everyday self-care skills (American Psychiatric Association, 2013; Carr et al., 2016). Although there are individual variations of communication impairments, defendants with ID are likely to have communication challenges with how they input and process information, how they verbally express themselves, limitations in pragmatic skills of reading and expressing non-verbal language and limitations in reading and writing skills.
Cross-examination in court, within an adversarial system, is an untypical and unique form of interpersonal communication, which cannot be fully explained by existing communication models. Although two people are involved in a communicative exchange, the communication process is a one-way flow of questions from an advocate to the defendant. The defendant is not permitted to ask questions of the advocate, only to answer. In addition, a judge may ask questions and other people are participants in the process. Some are mere observers, some have vested interests, and others are the key decision makers. The cross-examination process is very familiar to one partner – the advocate, and usually unfamiliar to the other partner – the defendant.
The cross-examination model of communication
The cross-examination model of communication provides a tool to examine the cross-examination process with the defendant with ID. It allows us to compare the communication skills of the advocate and defendant and the factors within each partner, the process and environment that may impact on the communicative exchange. The model contains three key aspects: What?; the Meaning and Message; and How?
- What is said – information communicated
The advocate communicates information to the defendant through verbal and non-verbal language. The defendant responds to questions using verbal and non-verbal language. Language used in the court is legalese, formal style language that is familiar to one partner – the advocate, but likely to be very unfamiliar to the other partner – the defendant with ID. Therefore, only one partner is fully equipped to use and understand the common code that some communication models state is required for effective communication (Cobley and Schulz, 2013; Fiske, 1990). If the information is presented in the form of long and/or complex questions, and using specific questions types, such as: tag; negatives; and statements (Morrison et al., 2021, 2019), the defendant with ID may not be able to fully understand each question and therefore not respond accurately. Advocates are trained to use emotion and non-verbal language, in particular paralanguage, such as emphasising certain words and using tone of voice (McPeake, 2018; Morley, 2015). The defendant with ID is likely to have difficulties expressing information, such as: limited recall skills; word finding difficulties; speech impediments; and difficulties sequencing an event (Morrison et al., 2021). Challenges with reading skills and limitations in retention of information read out could impact the defendant with ID’s refreshing of memory of their statement.
- The meaning and message
Both the meaning and message are complex communication concepts within the process of cross-examination, more so when the defendant has ID. The advocate asks a question with a particular intended meaning. The defendant has to interpret this meaning and give a response. The judge and jury also interpret the meaning of the questions. However, each question also comes with a very specific message. Each question asked by the advocate is not a separate entity, rather it is merely one pawn in the strive for a checkmate. The overall message the advocate wishes to convey is that there is an error in the defendant’s testimony and their version of events is wrong or that the defendant is not being truthful to the court. Each question is purposefully and skilfully presented, in order to build the ‘picture’ and allow the ‘message’ of the advocate to ‘penetrate the skull’ of the decision makers (Heath and Bryant, 2000). It is unlikely that the defendant with ID would possess the skill and understanding to control their responses with equal skill as the advocate. Furthermore, research indicates that the defendant with ID may not inform the advocate when the question has been not been understood or clarification is required (Morrison et al., 2021). Their non-verbal language may indicate understanding and the defendant may not even be aware that their interpretation of the meaning is different to what the intended meaning was. Therefore, the advocate is unable to adjust their questioning according to feedback given, i.e. repeat or reword the question.
- How information is communicated
The advocate uses leading questions to ‘tell’ the defendant how to respond. Usually a simple ‘yes’ response is sought. In response, the defendant with ID may be suggestible to the leading question and be more likely to acquiesce to each question (Morrison et al., 2019). People with ID provide more limited information in response to open questions and there is very little research on alternative question styles that could be effectively used. However, it is not just the question style that impacts on the communicative exchange and it may be that the vulnerable defendant would be more equipped to withstand the pressure of a simply worded leading question if other influencing factors are taken into consideration. ‘Mooting’ describes the special form of skilled physical performance the advocate can adopt, using vocals, facial expressions and subtle physical gestures to engage the audience (Cradduck and Thomas, 2017). The defendant with ID is likely to have more limited pragmatic skills, that is the skill of reading the subtle nuances of non-verbal language such as: the rolling of the eyes; sweeping hand movements; raised voice at the end of questions; and emphasis on one specific word and the ‘reading between the lines’ of the words spoken.
In addition, the defendant with ID may display pragmatic skills that do not match what they verbally say or feel, intend on saying, or what is considered to be an appropriate display of non-verbal language. They are also likely to be less skilled and unaware of the use of emotion as a skill during cross-examination. Some defendants with ID may have some awareness of underlying meaning of questions asked but lack the cognitive and pragmatic skills to fully interpret accurately. This may lead to frustration displayed as a raised voice, swearing, being argumentative, challenging the advocate, standing up, or refusal to respond. Early childhood trauma is another factor that needs to be considered for defendants and the impact this may have on the dysregulation of emotions when going through the stress of cross-examination (Ellison et al., 2017; Risan et al., 2020). The judge and jury may then interpret the non-verbal and verbal language of the defendant based on their own assumptions, bias, life experiences, culture and understanding of non-verbal language and use this to judge the guilt of the defendant.
Conclusion
The ability to use communication as a tool could be argued as a method for advocates to operate within a culture of ‘power’. They are trained to take control, are accustomed to being listened to in court (Johnson and Hunter, 2009) and the courtroom is their ‘cultural norm’. The formal, ceremonial environment of the court is a familiar place of work for the advocate, but not for the defendant with ID. Advocates therefore have ‘cultural capital’ (Thompson, 2011) and power within the cross-examination exchange. Also, advocates are well educated professionals. Historically the language used to describe people with ID has included: unworthy of normal lives; takers from society; unfit (Bouras, 2016); idiots; lunatics(Gone et al., 2012) ; feeble-minded; imbecile; morally defective; moron (McClimens and Richardson, 2010), has all had negative connotations. The label of ‘disability’ highlights their impairments, what they cannot do, people who need to be taken care of – vulnerable. It could be argued that the ‘habitus’ of the advocate is that of empowerment and the person with ID is that of disempowerment. It can also be argued that this ‘habitus’ continues within the court setting, whereby the advocate is further empowered by a high level of language skills, familiarity with the environment, awareness of the process, trained in using emotion and non-verbal language as communication skills, a specific goal to work towards and coming from a culture and identity of professionalism, education and empowerment. The defendant with ID is further disempowered within an unfamiliar environment, limitations in verbal and non-verbal communication skills, cognitive impairments which make it more challenging to understand and follow the complex language and question styles that are typical of cross-examination, less likely to use emotion as a skill and coming from a culture and identity of disempowerment. It may therefore be possible to conclude that the process of cross-examination within an adversarial trial is not a fair communicative exchange between an advocate and a defendant with intellectual disabilities.
Reference list
Airenti, G., 2017. Pragmatic Development, in: Cummings, L. (Ed.), Research in Clinical Pragmatics. Springer International Publishing, Cham, Switzerland, pp. 3–28. https://doi.org/https://doi.org/10.1007/978-3-319-47489-2_23
American Psychiatric Association, 2013. Diagnostic and statistical manual of mental disorders: DSM-5, Fifth. ed. American Psychiatric Publishing, Inc, Arlington, VA, US.
Berger, C., 2014. Interpersonal communication: an introduction., in: Berger, C. (Ed.), Interpersonal Communication. Handbooks of Communication Science. De Gruyter Inc., pp. 3–28. https://doi.org/10.1515/9783110276794
Bouras, N., 2016. Historical and international perspectives of services, in: Hemmings, C., Bouras, N. (Eds.), Psychiatric and Behavioral Disorders in Intellectual and Developmental Disabilities. Cambridge University Press, Cambridge, pp. 1–14. https://doi.org/10.1017/CBO9781107588714.002
Capella, J.N., 1987. Interpersonal communication: Definitions and fundamental questions, in: Berger, C.R., Chaffee, S.H. (Eds.), Handbook of Communication Science. SAGE Publications, Newbury Park CA, pp. 184–223.
Carr, A., Linehan, C., O’Reilly, G., Walsh, P.N., McEvoy, J., 2016. The Handbook of Intellectual Disability and Clinical Psychology Practice: Second edition, The Handbook of Intellectual Disability and Clinical Psychology Practice: Second Edition. https://doi.org/10.4324/9781315739229
Cobley, P., Schulz, P.J., 2013. Theories and Models of Communication. De Gruyter, Inc., Berlin/Boston, GERMANY.
Cradduck, L., Thomas, M., 2017. From the waist up: developing psychomotor skills for the court room. International Journal of the Legal Profession 24, 319–339. https://doi.org/10.1080/09695958.2016.1226844
Doak., J., Jackson, J., Saunders, C., Wright, D., Fariñas Beatriz Gómez, & Durdiyeva, S. (2021). Cross-Examination in Criminal Trials Towards a Revolution in Best Practice? A Report for the Nuffield Foundation. https://www.ntu.ac.uk/research/groups-and-centres/projects/mapping-the-changing-face-of-cross-examination
Ellison, L., Munro, V E, Vanessa, E., Munro ; Ellison, L., Munro, Vanessa E, 2017. Taking trauma seriously: critical reflections on the criminal justice process. International Journal of Evidence and Proof 21, 183–208.
Fiske, J., 1990. Introduction to Communication Studies, Introduction to Communication Studies. Routledge/Taylor & Francis Group, London. https://doi.org/10.4324/9780203837382
Fogel, A., 1995. Development and Relationships: A Dynamic Model of Communication, in: Advances in the Study of Behavior. pp. 259–290. https://doi.org/10.1016/S0065-3454(08)60396-4
Fogel, A., 1993. Two principles of communication: co-regulation and framing, in: Nadel, J., Camaini, L. (Eds.), New Perspectives in Early Communication Development. Routledge, London, pp. 9–22.
Gone, R., Hatton, C., Cane, A., 2012. Service Provision, in: Emerson, C., Hatton, C., Dickson, K., Gone, R., Caine, A., Bromley, J. (Eds.), Clinical Psychology and People with Intellectual Disabilities. Wiley-Blackwell, pp. 23–50.
Griffiths, C., Smith, M., 2017. You and me: The structural basis for the interaction of people with severe and profound intellectual disability and others. Journal of Intellectual Disabilities 21, 103–117. https://doi.org/10.1177/1744629516644380
Hargie, O., 2016. Skilled Interpersonal Communication: Research Theory and Practice., 6th ed, Skilled Interpersonal Communication. Taylor & Francis Group. https://doi.org/10.4324/9781315741901
Heath, R., Bryant, J., 2000. Human Communication Theory and Research: Concepts, Contexts and Challenges, 2nd ed. Taylor & Francis Group.
Johnson, B., Hunter, M., 2009. Articulate Advocate : New Techniques of Persuasion for Trial Lawyers. Crown King Books, Phoenix, UNITED STATES.
Johnson, Baumgart, D., Helmstetter, E., Curry, C.A., 1996. Augmenting basic communication in natural contexts. Paul H Brookes Publishing Co., Baltimore, United States Baltimore, Baltimore.
Keane, A. (2012). Cross-examination of vulnerable witnesses–towards a blueprint for re-professionalisation. International Journal of Evidence & Proof, 16(2), 175–198. http://10.0.5.70/ijep.2012.16.2.397
McClimens, A., Richardson, M., 2010. Social Constructions and Social Models: Disability Explained?, in: Grant, G., Ramcharan, P Flynn, M. (Eds.), Learning Disability : A Life Cycle Approach. McGraw-Hill Education, Berkshire, p. 19.
McPeake, R., 2018. Advocacy, 19th ed. Oxford University Press, City University London.
Morley, I.Q., 2015. The Devil’s Advocate, 3rd ed. Thomson Reuters, trading as Sweet & Maxwell, Croydon.
Morrison, J., Bradshaw, J., Murphy, G., 2021. Reported communication challenges for adult witnesses with intellectual disabilities giving evidence in court. International Journal of Evidence and Proof 25, 243–263. https://doi.org/10.1177/13657127211031040
Morrison, J., Forrester-Jones, R., Bradshaw, J., Murphy, G., 2019. Communication and cross-examination in court for children and adults with intellectual disabilities: A systematic review. International Journal of Evidence and Proof 23, 366–398. https://doi.org/10.1177/1365712719851134
Risan, P., Milne, R., Binder, P.-E., 2020. Trauma narratives: recommendations for investigative interviewing. Psychiatry, Psychology and Law 1–17. https://doi.org/10.1080/13218719.2020.1742237
Sapienza, Z.S., Iyer, N., Veenstra, A.S., 2015. Reading Lasswell’s Model of Communication Backward: Three Scholarly Misconceptions. Mass Commun Soc 18, 599–622. https://doi.org/10.1080/15205436.2015.1063666
Stamp, G., 1999. A Qualitatively Constructed Interpersonal Communication Model: A Grounded Theory Analysis. Hum Commun Res 25, 531–547.
Thompson, N., 2011. Effective communication: A guide for the people professions, 2nd ed. Palgrave Macmillan, London.
Thompson, N., 2003. Communication and Language. A handbook of theory and practice. Palgrave Macmillan, New York.
[1] See Mechanical and General Inventions Co. and Lehwess v Austin and the Austin Motor Co: HL [1935] AC 346, 359
Defending Vulnerability 