Seeking or controlling the truth? An examination of courtroom questioning practices by Canadian lawyers

ABSTRACT

The questioning practices of Canadian lawyers were examined. Courtroom examinations (N = 91) were coded for the type of utterance, the assumed purpose of the utterance, and the length of utterance. Results showed that approximately one-fifth of all utterances were classified as productive for gathering reliable information (i.e. open-ended, probing); less than one percent of all utterances were open-ended. Direct examinations contained more closed yes/no, probing, and open-ended questions. Cross-examinations contained more leading and clarification questions, and opinions. Moreover, cross- (vs. direct) examinations contained more questions with a ‘challenging the witness’ purpose. The longest utterances were opinions, followed by multiple and forced-choice questions. The longest answers were in response to open-ended questions, followed by multiple and probing questions. Implications for the truth-seeking function of the judiciary are discussed.

KEYWORDS:

• Courtroom questioning
• lawyers
• truth-seeking
• question types
• justice system

Acknowledgement

Thank you to the clerks at the Supreme Court of Newfoundland and Labrador (Trial Division) courthouse in St. John’s, NL, Canada, for providing the researchers with the dataset. Portions of this research was completed as part of the first author’s master of science thesis at Memorial University of Newfoundland, St. John’s, NL, Canada.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 Zajac and Cannan’s (2009) definition of an ‘open’ question is comparable to what the current paper defines as a probing question. Additionally, Zajac and Cannan’s definition of a ‘closed’ question is comparable to a combination of closed yes/no and forced-choice questions as outlined in the current paper.

2 It is important to note in both Kebbell et al. (2003) and Zajac and Cannan (2009), questions types were not mutually exclusive; a single question might have been coded as both a closed and leading question.

3 Although the number of examinations conducted by a prosecutor (i.e. 47) and defence lawyer (i.e. 44) match the number of direct examinations (i.e. 47) and cross-examinations (i.e. 44) that occurred, these numbers are not one in the same or linked to each other. Rather, it was mere coincidence that the numbers matched.

4 The total number of lawyer utterances (n = 6,158) and witness response utterances (n = 5,911) are not equal because in some cases, other questioners interrupted before the witness could provide a response utterance (e.g. opposing lawyer objects to question before witness responded).

5 A total of 17 of the 25 lawyers in our sample conducted more than one examination. As such, there were concerns about independence – that is, having multiple examinations conducted by the same lawyer(s) may have skewed the results. To address concerns about this dependency issue, a single examination was selected randomly for each lawyer who conducted more than one examination, leaving a subsample size of 25 examination transcripts upon which the same aforementioned analyses for the main sample were conducted. Across all utterance types, there was, on average, a 1.04% (SD = 0.74) difference in the proportion of utterance types asked per examination between the means of the two samples (i.e. N = 91 vs. N = 25). Specifically, the mean proportion for the subsample and the absolute difference in proportion between samples are as follows: open-ended (M = 0.58, SD = 1.32, 95% CI = 0.03, 1.12, M_diff= 0.14), probing (M = 23.65, SD = 16.45, 95% CI = 16.86, 30.44, M_diff= 2.06), closed yes/no (M = 27.73, SD = 11.95, 95% CI = 22.80, 32.66, M_diff= 0.70), forced-choice (M = 1.64, SD = 2.68, 95% CI = 0.53, 2.74, M_diff= 0.50), multiple (M = 5.70, SD = 3.82, 95% CI = 4.12, 7.27, M_diff= .39), leading (M = 17.75, SD = 14.95, 95% CI = 11.97, 23.53, M_diff= .39), re-asked (M = 0.19, SD = 0.59, 95% CI = 0.00, 0.43, M_diff= 0.22), clarification (M = 11.80, SD = 10.10, 95% CI = 7.63, 15.97, M_diff= 1.42), opinion (M = 0.38, SD = 1.36, 95% CI = 0.00, 0.94, M_diff= 0.19), and facilitator (M = 10.60, SD = 10.91, 95% CI = 6.10, 15.10, M_diff= 1.41).

The difference in the effect sizes for the difference between direct and cross-examinations for each utterance type was negligible. The average difference in d-values between the two samples was 0.20 (SD = 0.13). The effect sizes for each utterance as a function of examination type in the subsample, and the difference in the size of the d-values between the two samples are as follows: open-ended (d = 0.62, d_diff= 0.03), probing (d = 1.88, d_diff= 0.47), closed yes/no (d = 0.35, d_diff= 0.36), forced-choice (d = 0.47, d_diff= 0.27), multiple (d = 0.12, d_diff= 0.11), leading (d = 1.50, d_diff= 0.13), re-asked (d = 0.05, d_diff= 0.27), clarification (d = 0.80, d_diff= 0.20), opinion (d = 0.41, d_diff= 0.01), and facilitator (d = 0.09, d_diff= 0.09).

The difference in the effect sizes for the difference between prosecutors and defence lawyers for each utterance type was negligible. The average difference in d-values between the original sample and subsample was 0.13 (SD = 0.09). The effect sizes for each utterance as a function of lawyer type in the smaller sample, and the difference in the size of the d-values between the two samples are as follows: open-ended (d = 0.29, d_diff= 0.18), probing (d = 0.11, d_diff= 0.02), closed yes/no (d = 0.01, d_diff= 0.29), forced-choice (d = 0.22, d_diff= 0.10), multiple (d = 0.35, d_diff= 0.29), leading (d = 0.18, d_diff= 0.10), re-asked (d = 0.00, d_diff= 0.03), clarification (d = 0.11, d_diff= 0.10), opinion (d = 0.13, d_diff= 0.07), and facilitator (d = 0.26, d_diff= 0.07).

Likewise, the trends for purpose type in the smaller sample largely remained the same; it was found that 88.06% of the utterances were used to obtain information relevant to the case (SD = 11.57, 95% CI = 83.28, 92.83). Across all purpose types, there was, on average, a 0.84% (SD = 0.43) difference in the proportion of purpose types classified between the means of the two samples. Specifically, the means for the subsample and the absolute difference in proportion between the samples are as follows: administrative (M = 1.34, SD = 1.94, 95% CI = 0.54, 2.14, M_diff= 0.28), information gathering (M = 87.32, SD = 11.70, 95% CI = 82.49, 92.15, M_diff= 0.60), challenge (M = 0.74, SD = 1.63, 95% CI = 0.06, 1.41, M_diff= 1.07), and purpose unknown (M = 10.60, SD = 10.91, 95% CI = 6.10, 15.10, M_diff= 1.39).

The difference in the effect sizes for the difference between direct and cross-examinations for each purpose type was negligible; the average difference in d-values between the two samples was 0.04 (SD = 0.02). The effect sizes for each utterance as a function of examination type for the subsample, and the difference in the size of the d-values between the two samples are as follows: administrative (d = 0.10, d_diff= 0.04), information gathering (d = 0.16, d_diff= 0.04), challenge (d = 0.73, d_diff= 0.01), and purpose unknown (d = 0.09, d_diff= 0.08).

Negligible differences were found in proportions of purpose types as a function of lawyer type, with the exception of challenges. That is, prosecutors in the subsample asked more challenging questions than defence lawyers in the subsample; however, it is important to note that the difference in the quantity of the questions challenging the witness were minimal between the original sample (e.g. prosecutors – 1.70%; defence lawyers – 1.92%) and subsample (e.g. prosecutors – 1.12%; defence lawyers – 0.32%), respectively. The average difference in d-values between the larger and smaller sample was 0.11 (SD = 0.15). The effect sizes for each utterance as a function of lawyer type in the smaller sample, and the difference in the size of the d-values between the two samples are as follows: administrative (d = 0.10, d_diff= 0.00), information gathering (d = 0.20, d_diff= 0.01), challenge (d = 0.40, d_diff= 0.36), and purpose unknown (d = 0.26, d_diff= 0.07)

Given the similarity in findings between the main variables of interest (e.g. examination and lawyer types) for the N = 91 and N = 25 samples, the secondary analyses conducted to explore the impact of any dependency issues as explained here were not included in the results section in order to avoid redundancy and confusion. The conclusions drawn based on the subsample data remained the same.