Frances Andrade, 48, killed herself just days after she was cross-examined giving evidence against choirmaster Michael Brewer and his wife Kay in their trial. The questioning by experienced barrister Kate Blackwell, reportedly involved standard court room tactics of accusing the witness of being a liar and a fantasist.
The 68-year-old was eventually convicted of sexually assaulting Andrade when she was a teenage music pupil, and it’s now reported that others have come forward with further allegations – but all this has come too late for Andrade – who died from an overdose before the trial outcome was announced.
So far the media coverage has focused on whether she should have been offered psychotherapeutic help for the strain of enduring the trial process. One contention is that psychological assistance could ‘contaminate’ recollection.
But this consideration appears bizarre in the light of the latest psychological research evidence that hostile court room cross-examination in itself negatively influences witnesses, in these kinds of cases, reducing access to the truth.
If this 48 year old renowned and successful violinist supposedly found cross-examination too much – how are younger children supposed to cope?
Scandals like that of Jimmy Savile – where an alleged abuser got away for decades with multiple assaults partly happen because children and their guardians are reluctant to confront brutal and harrowing court room cross-examination. As a result decades go by before victims and witnesses, such as Andrade at the age of 48, come forward to report abuse which took place when she was a teenager.
If perpetrators are to be prevented from getting away with such crimes for such extended periods, we need a legal system that offers children a fair chance in court.
But psychologists report the accuracy of children’s eyewitness reports hinges crucially on the way in which they are interviewed. They contend defence barristers are using techniques specifically and cleverly designed to get children to change their evidence away from accurate recall.
For example, psychologists Dr Rachel Zajac, Emma Jury and Sarah O’Neill from the University of Otago, New Zealand have recently conducted a unique experiment where 137 five and six-year-old children were cross-examined in a staged event designed to replicate court-room direct and cross-examination. Despite highly accurate responses under direct examination, children made a large number of changes to their testimony during cross-examination, resulting in a signiﬁcant decrease in accuracy.
Dr Zajac leads a rolling program of research on the impact of cross-examination on children and their recall of events about which they may testify to in a court. This study is just one example of several she has conducted. She is obtaining astonishing results – for example in response to the types of questions that cross-examining lawyers typically ask, one astounding discovery is 90% of the children change their original testimony. These findings are being replicated in other studies.
Under our current adversarial system of law, child witnesses undergo cross-examination, during which the opposing lawyer attempts to discredit the testimony. This typically involves techniques such as complex, suggestive and confrontational questions.
In Dr Zajac’s study, questions challenged children’s certainty, just as barristers do in cross-examination – for example about a real staged event for the experiment. One question was; ‘are you sure that you got your photo taken?’ Leading questions were also used, aimed at getting the child to retract the original story. For example, the experimenter expressed disbelief and suggested reasons. For example, ‘I don’t think you really got your photo taken, I think someone told you to say that. That’s what really happened, isn’t it?’ Again these are precisely the same manipulations defence barristers use.
Social pressure tactics on children used in court were also deployed in the experiment – for example the interviewer explicitly tells children that she does not believe their version of events (e.g. ‘I don’t think that’s what really happened’) then proceeds to provide the children with a version of events conveyed as being acceptable (e.g. ‘I think that your friends got their photo taken, but you didn’t’).
The study, replicating these cross-examination style questions, and entitled, ‘The Role of Psychosocial Factors in Young Children’s Responses to Cross-examination Style Questioning’ found almost all of the children (90%) changed at least one of their four original responses during cross-examination. Over one third of children (34%) changed all of their original responses, children’s accuracy during the cross-examination interview was not signiﬁcantly different from 50%.
Most vital, given the court is meant to be a mechanism of getting at the truth, the alterations that children conceded during cross-examination were frequently away from the truth, leading to a dramatic reduction in overall accuracy.
The authors of the study, published in the journal Applied Cognitive Psychology, point out that although cross-examination is often promoted as a means for arriving at the truth, a mere 6% of children, in the present study, improved their accuracy score during cross-examination.
An intriguing and unexpected result was that children with more brothers and sisters were especially likely to buckle under the pressure of cross examination and change their evidence. One theory is that children with more siblings are known to become better able to negotiate with others. As cross-examination is essentially a situation in which ‘negotiation’ is undesirable, it’s possible these children are responding to demands from the barrister with appeasing ‘negotiation’, but then the truth suffers.
Taken together with ﬁndings from previous research, the authors contend their results suggest that cross-examination in the court room is an inappropriate inquiry tool with child witnesses
Poor cross-examination performance in the experiment was associated in the study with low levels of self-conﬁdence, self-esteem and assertiveness. This suggests those most likely to fare worse during cross-examination are the very children who are most likely to appear as witnesses in the courtroom. We know that sex abusers target precisely this kind of child in the first place, partly because they know these children are less likely to speak out about the abuse. Now this research reveals even if these children make it to court, they are the most susceptible to changing their evidence away from the truth under cross-examination.
Even if they ever get into a trial, abuser’s barristers appear to be exploiting the psychological vulnerability of these victims, getting them to alter their testimony away from the truth – a susceptibility which could also be a very consequence of the trauma of being abused.
If the risk factors for being abused are the self-same characteristics associated with poor courtroom performance, then the legal process should surely take this into account.
Instead, this research suggests current law and legal process is so designed that sex abusers are gaining a kind of double protection, from ever being found guilty.