The Direct and Cross-Examination of Complainants and Defendants in Rape Trials: A Quantitative Analysis of Question Type

Abstract

This paper is a post-hoc examination of the questioning used in six rape trials. Questions asked in the evidence-in-chief and cross-examination of six complainants and five defendants were coded into different categories. The categories comprised "open", "closed", "leading", "heavily-leading" and "yes/no" questions; questions that are known to increasingly constrain witness responses. Additionally, the frequency of "multiple questions", and questions with "negatives" and "double negatives" were recorded; questions that witnesses have difficulty understanding. Broadly speaking, results showed that questions in both evidence-in-chief and cross-examination were of a constraining nature and allowed witnesses little opportunity to provide complete accounts of alleged events, particularly during cross-examination. Multiple questions were frequent although negatives were comparatively rare, and double negatives did not occur. Similar forms of questioning were used for complainants as for defendants, although more questions were asked of complainants than defendants in cross-examination. The results are discussed in terms of the adverse influence of these questioning strategies on the completeness and accuracy of witnesses' responses, and the similarity in "combativeness" of lawyers in their examination of complainants and defendants.

Keywords:

• Cross-examination
• Rape
• Witness Evidence
• Questioning