Does training expert witnesses for cross examination matter? Yes!

No expert, especially those new to being a legal expert witness, should go into a court room without preparation. Indeed, that preparation could include training on how to write and explain a report, present a diagram or other visual evidence, even ones stature and how to dress for a jury. Another area that is clearly critical is how to handle cross examinations. Every client, and experienced expert, has an anecdotal story to tell about a cross examination that ripped apart the opposing expert, with serious consequences to the case at hand.

Kathy Kellerman (of ComCon) posted about a recent article published in Criminal Law Review, in which the authors Ellison and Wheatcroft present formal evidence on the usefulness of training expert witnesses on how to handle cross examination, and the perils of not doing so.

Ellison and colleagues (2010) investigated whether instructing witnesses about attorneys' cross-examination questioning techniques could improve the accuracy of answers witnesses provide.

They noted that witnesses are confronted frequently in cross-examination with complex and leading questions that contain multiple parts, negatives, double-negatives, advanced vocabulary and legal terminology. Witnesses have difficulty deciphering and answering such questions accurately.

Numerous adult witnesses watched a videotaped crime and then were cross-examined about the crime in a mock courtroom environment by an attorney. Before undergoing cross-examination, half of the witnesses received instruction in the form of a leaflet that:

    * described the purpose of cross examination (e.g., to test evidence and elicit information favorable to the cross-examiner's case)
    * offered practical guidance for answering questions (e.g., listen carefully, ask for clarification if a question is not fully understood, answer all questions truthfully)
    * offered examples of questions (e.g., leading, multipart, used double negatives) accompanied by advice that witnesses should not agree with a suggestion ventured by the cross-examiner unless it was accurate

Some witnesses underwent cross-examination that used complexly phrased questions, while others were asked simplified questions. Complexly phrased questions were leading, multipart, contained advanced vocabulary, and used double negatives. Simplified questions were still leading and multipart, though used less complex vocabulary and were devoid of double negatives. Other than these phrasing differences, the set of questions was the same for all witnesses.

Witnesses instructed in attorneys' cross-examination questioning techniques offered incorrect responses, on average, to 12% of the questions they were asked; uninstructed witnesses had an error rate 52% higher. Instruction in attorneys' cross-examination questioning techniques was particularly helpful to witnesses confronted with complexly phrased questions: witnesses not receiving this instruction made 66% more errors than witnesses receiving instruction.

For leading questions, witnesses instructed in attorneys' cross-examination questioning techniques made significantly fewer single responses to multipart questions, and recognized inaccurate premises embedded within questions significantly more often as compared to uninstructed witnesses.

Without instruction, witnesses often were confused by attorneys' questions in cross-examination and feel inhibited from asking for clarification due to intimidation and/or the pace of questioning. Witnesses receiving instruction in attorneys' cross-examination questioning techniques asked for clarification nine times more often than those not so instructed.

Witnesses reported that the instructional leaflet had usefully told them what to expect during cross-examination, explained how the questions could or would be asked, made it easier to answer the questions, and provided them the self-assurance to speak up and ask for help when they needed it.

In sum, instructing witnesses about attorneys' cross examination questioning techniques significantly improves answer accuracy. Witnesses who receive such instruction make fewer errors when testifying, and more often seek clarification when they are confused