GIVING EVIDENCE

Witnesses with learning disabilities should be assessed first and then treated with special care says Leslie Cuthbert.

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Imagine for a moment that you are the decision maker in some kind of hearing, for example, a court case. You’re part of the jury and hear the following exchange between the Judge and the witness giving evidence:
Judge: ‘Have you lived in Dublin all your life?’
Witness: ‘Not yet.’

What would be your impression of the witness? Do you think that they are being sarcastic? Would you consider that they are not taking the proceedings seriously and, as a result, are you less likely to find their evidence credible?

What if I were to tell you that the witness suffers from Asperger’s Syndrome and will accordingly take questions literally. Has your view of the above exchange changed? Now do you see that the witness was simply answering the question at face value; he hadn’t lived all of his life yet, so his answer was entirely accurate.

This is a challenge people with intellectual disabilities, or learning difficulties, face on a daily basis when those in society tasked with a decision-making role interpret behaviour without taking into account the particular characteristics people with intellectual disabilities have. This is because, as the Lord Chief Justice of England and Wales, Igor Judge, stated in a lecture in Sydney in 2011, they are often ‘those about whom ignorant myths may still persist.’

The potential risks

Taking questions literally and this being interpreted negatively is just one example, however, of what may happen in a court or tribunal setting. There are many other possible scenarios and every person is unique, but some other common problems that occur and may lead decision makers to wrong conclusions are these:
■ Heightened anxiety, which can be interpreted as being ‘shifty’;
■ Weak listening skills and/or limited attention span, which can be interpreted as not paying attention or taking the matter seriously enough;
■ Delays in answering questions, which can be interpreted as refusing to answer the question or wanting to avoid answering;
■ Difficulty expressing amorphous terms such as temporal or spatial concepts (e.g. here, there, then), which can be interpreted as trying to be evasive or changing their answers;
■ Lack of eye contact, often interpreted as a sign of deceit (‘they couldn’t even look me in the eye’);
■ Appearing blunt or disrespectful or their facial expression being inconsistent with what they are saying (e.g. grinning when talking about what might be deemed to be a distressing subject could be deemed to indicate that they found it funny or amusing);
■ Failing to recognise that they don’t understand something. This can often lead to confusing or contradictory answers which are then taken as a sign of dishonesty;
■ A heightened sensitivity to noise or visual stimuli, meaning that the person is easily distracted or distressed. As a result what they are saying is interrupted or disjointed and it may be discounted as unreliable by the decision maker (Plotnikoff and Woolfson).

There is an enormous responsibility upon all parties in a decision-making process to ensure that they identify vulnerabilities a person may have and take steps to ensure that those vulnerabilities are not perceived inappropriately, thereby having a detrimental impact upon the ultimate decision. Section 2 of the publication by the Judicial College in 2012 effectively sums up the position as follows:
Check that all parties understand … the meaning of the questions asked and answers given during the course of the proceedings, otherwise the process of law is at best seriously impeded. At worst, justice may be denied.’

There are a number of actions that can be taken to make the process easier for people with intellectual/ learning disabilities to be able to give the best evidence in proceedings. These will also help to ensure that they are treated with the dignity and respect to which they are entitled. Lexicon Limited have created a number of free ‘toolkits’ to help individuals involved in questioning people with disabilities and their guidance may be split into two distinct areas: (1) how the case is managed, and (2) how questions are framed.

Case management

Certain steps should always be borne in mind when a person with intellectual/learning disabilities is to be asked questions or to participate in any kind of court or tribunal proceedings. The first is to obtain some form of assessment as to the precise nature of the person’s difficulties and the most effective means of communication available to them. In England and Wales there are now registered intermediaries who will be appointed to undertake just such a function. They will consider whether the person will be assisted by having a neutral supporter with them whilst being questioned, and how best to ensure the person remains focused, e.g. by taking more frequent breaks. Another important action is to familiarise the person with the purpose of the hearing and, if possible, with the venue where the hearing will occur, so that they may develop an understanding of what is involved.

Possibly the most helpful step to take, however, is for the decision maker to agree a set of ‘ground rules’ for the hearing. These are a list of ‘do’s and don’ts’ that everyone understands will be adopted during the hearing to ensure that people with intellectual/learning disabilities receive equal treatment compared with people who don’t have such difficulties. This is important because many people perceive that equal treatment means treating everyone the same, when this is not correct. Very often people with intellectual/learning difficulties must be treated differently in order to ensure that overall they are receiving equal treatment in the context of the evidence they are giving.

Questioning

Another very important and challenging area is in relation to the actual questioning of people with intellectual/learning disabilities. This is arguably the most significant factor in effective communication since accuracy and completeness of testimony can be improved if appropriate questioning strategies are used. The following are key points that anyone asking questions of individuals with intellectual/learning disabilities should bear in mind, with a brief explanation as to why they are important:
(1) Tailor questions to the individual’s needs and abilities—never assume that everyone has the same difficulties or will require the same approach.

(2) Ask short, simple questions—this is generally the best approach for any witness, and it limits the risk of confusion or misunderstanding.

(3) Ask about one fact or idea at a time—they may have a limited working memory and be unable to remember or respond to a multi-part question.

(4) Use common words—avoid ‘perambulated’ if you mean ‘walked’, and avoid redundant, unnecessary phrases such as ‘I put it to you’.

(5) Be unambiguous, avoiding euphemisms or figures of speech—What alternative understanding might a witness make of the question ‘Do you remember falling out with your boyfriend?’

(6) Speak slowly—If you speak too quickly it can become difficult to separate words out and as a result it can be harder to understand what is being asked.

(7) Give the person thinking time, at least 6 seconds—This is simply because they will often need longer to first understand what you are asking and then to work out their response.

(8) Repeat names, places and objects often—This helps to keep the person focused.

(9) Follow a logical, chronological order—This prevents the person getting confused as to which subject you are talking about or which time period.

(10) Avoid using the present tense when asking about past events—Again this can lead to confusion, e.g. ‘If you are in your bedroom, where is Dave?’

(11) Highlight when you are moving from one subject to another—This allows the person time to focus on the next topic. It is helpful if taking a break to take it in between topics’

(12) Regularly check the person’s understanding—You may assume that they understand, but the only way to be sure is to ask them if they understanding your question before they answer it.

(13) Consider using visual aids—as the old adage goes a picture can be worth a thousand words.

(14) Avoid ‘tag’ questions (where a statement is followed by an invitation to confirm its truth). These are very suggestive and linguistically complex.

(15) Be careful about the use of questions containing ‘why’ or ‘how’—these are difficult because they involve abstract concepts which the person may be unable to process.

(16) Avoid asking for comment as to the consequences of their own or another person’s actions—people with Asperger’s Syndrome or on the Autistic Spectrum may lack the ability to imagine or interpret people’s thoughts, feelings or behaviour (e.g. asking them, ‘How did you feel when Dave said that?’

(17) Avoid questions containing one or more ‘negative’ expressions—these make it harder to decipher the underlying meaning and their complexity may make it more likely that an unreliable response will be given, e.g. ‘You’re not asking us to believe this happened, are you?’

(18) Avoid asked ‘forced choice’ questions—where the possible answers are limited within the question, which creates opportunities for error if the correct alternative isn’t present. The question ‘When you went out, was it Dave or Mary that you met? is problematic if the person they met was Andrew.

(19) Avoid repeating the same question—many people may deem that if a person in authority asks them the same question again their first answer was ‘wrong’ and so they ought to change it.

(20) Avoid suggesting that the witness is lying or confused. People with intellectual/learning difficulties are likely to be prone to heightened anxiety and suggesting that they are lying may well increase that anxiety, resulting in a loss of concentration and reduction in accuracy of their answers.

The overriding message that needs to be kept in mind is perhaps best summed up by the Advocacy Training Council, in its report Raising the bar (2011):
‘[T]he handling and questioning of vulnerable witnesses, victims and defendants is a specialist skill, and should be recognised as such by practitioners, judges, training providers and regulators.’

Leslie Cuthbert

With a background as a Solicitor-Advocate specialising in criminal defence work, Leslie is currently engaged in a number of diverse roles. These include judicial work sitting as a Recorder in the Crown Court, a Tribunal Judge of the Mental Health Review Tribunal UK, Panel Chair of the Nursing and Midwifery Council UK, Independent Adjudicator regarding the London Congestion Charge and Independent Adjudicator for Companies House UK. Leslie is also a consultant trainer for a number of organisations including the leading Irish legal training firm, La Touche Training. He regularly provides training in Ireland and around the world for investigators, lawyers and regulators in a variety of best practice skills. He is the author of the text, Effective Interviewing for Disciplinary, Grievance and Complaints Investigations.

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