Vulnerable Witnesses Research Articles

A case study on public inquiry engagement with vulnerable witnesses and on putting participants at the heart of the public inquiry process: insights from the Muckamore Abbey Hospital Inquiry

A case study on public inquiry engagement with vulnerable witnesses and on putting participants at the heart of the public inquiry process: insights from the Muckamore Abbey Hospital Inquiry

Victim Care or Defendant Rights? Assessing Public Attitudes towards Special Measures Designed to Support Vulnerable Witnesses at Trial

The introduction of ‘special measures’ within England and Wales (i.e., provisions for vulnerable and intimidated witnesses at court) marked a significant change in legal tradition and trial procedures such that victim and witness care was repositioned as a primary concern alongside the longstanding rights afforded to defendants. As public perceptions towards the legitimacy of criminal justice procedure remain a key concern among legal scholars and social scientists, this study aimed to examine individual differences in attitudes held towards the rights afforded to complainants and defendants within English courts. Adopting a cross-sectional study design, 114 UK adults were recruited to take part in an online survey. Questions centered around the importance of providing adequate witness care whilst protecting defendants’ rights to a fair trial. A new measurement tool was developed to allow these attitudes to be systematically assessed and understood, termed the Attitudes Towards Vulnerable Victims Scale (ATVVS). Results indicate that respondent age, gender, level of education, and belief in a just world are important determinants of public support for the use of special measures at trial as well as perceptions towards complainant and defendants’ rights. Taken together, findings indicate that misconceptions about vulnerable victims appear to underlie a lack of support for the use of special measures.

Putting Participants at the Heart of the Public Inquiry Process: Insights from the Muckamore Abbey Hospital Inquiry on Engaging with Vulnerable Witnesses

Putting Participants at the Heart of the Public Inquiry Process: Insights from the Muckamore Abbey Hospital Inquiry on Engaging with Vulnerable Witnesses

Pivoting in a Pandemic: Virtual Hearings, Vulnerable Witnesses and the Journey Toward a More Therapeutic Caribbean Court

In the global judicial response to COVID-19 restrictions, virtual hearings were expanded beyond special accommodations for children and vulnerable witnesses to facilitate a range of court proceedings. Not much is known about the phenomenon in Caribbean contexts. As a result of this gap, the current study analyzes content from Practice Directions issued by Supreme Courts in Jamaica, Trinidad and Tobago, and the Eastern Caribbean from 2020 to 2022. It identifies patterns in the rules surrounding virtual hearings and their relevance to the vision of a more therapeutic Caribbean court. Results indicate that in generalizing virtual hearings, witness needs are not adequately addressed.

Vulnerable witnesses in Chilean criminal proceedings: New developments

Common law countries have long been implementing legal reforms that recognise the special needs of vulnerable witnesses. While these issues have been the subject of considerable scrutiny and debate in evidence law scholarship, this is not the case across Latin American legal systems. This article intends to contribute to such a debate. Chile recently enacted two special laws that significantly amended the general evidentiary regime in an effort to account for the challenges facing children and victims of sex crimes. This article provides an account and analysis of these recent legal reforms. We contend that while both laws address critical issues impacting specific classes of victims, the lawgivers failed to recognise that there is conflict between the rights of the victims and the rights of the accused, generating legal reforms that have unreasonably restricted the right of defendants to confront witnesses.

“When an Elephant Has Its Foot on the Tail of a Mouse…” Trauma-Focused Court Preparation Interventions for Sexually Abused Child Witnesses

Background: This paper addresses the issue of court preparation in a lower middle-income country with recently enacted child sexual abuse (CSA) legislation and almost no precedence of standard child witness training packages or protocols. Aims & methods: Taking into consideration the potential impact of the adversarial system on children and the legal system’s concerns regarding the risk of contamination of evidence and based on assessment and analysis of children’s mental health concerns and consequent capacities for testimony, it describes a set of court preparation interventions designed for a group of vulnerable, sexually abused children from a childcare institution. Results: In recognition of the heightened challenges to their competency to testify in court, the paper highlights the importance of developmental and trauma-focused considerations, particularly in the context of children with adverse childhood experiences, and consequently the role of child mental health service providers in the practice of child forensic psychiatry in the context of CSA. Conclusions: It concludes by challenging established assumptions that tend to underlie court preparation programs for child witnesses and by making recommendations for additional considerations to be incorporated into child witness training in order to enhance child witness competency and child mental health and well-being and to augment victim-oriented procedural justice aspects for vulnerable witnesses in the adversarial justice system.

Eyewitnesses versus assistant witnesses

According to the current legislation in Romania, the witness is a procedural subject. The criminal procedural law in Romania does not distinguish between the eyewitness and the assistant witness, in the Code of Criminal Procedure only the quality of the witness is debated. Instead, the legislation in force also debates the notions of threatened witness, protected witness and vulnerable witness. Although there is no legislative delimitation between the notions of eyewitness and assistant witness, in specialized literature and in judicial practice the two notions are very good. In the legislation in force, as a rule, for the notion of assistant witness, the phrase present person is used and for the eye witness, the phrase witness, although the procedure of hearing and taking the oath is the same in both cases.

Using item response theory modelling to understand criminal justice professionals’ perceptions of cross-examination in child sexual abuse trials

The need to educate criminal justice professionals about best practices to cross-examine complainants of child sexual abuse is widely acknowledged. Yet, a dearth of empirical information about their perceptions has hindered development of targeted professional education programmes. The present study compared perceptions of the quality of cross-examination of a child and an adolescent complainant between judges, prosecutors, defence lawyers, police officers and witness support staff. Questioning type (appropriate/inappropriate) and judicial intervention (present/absent) were varied. Results of two-parameter Item Response Theory modelling showed that defence lawyers perceived significantly less unfairness to the complainant than the other professional groups. Judges’ views of unfairness were driven by the potential for confusion more than the age-inappropriate questioning. Police officers and witness support staff more likely rated the cross-examination as deleterious to the credibility and reliability of the complainant. Topics to include in professional development programmes around eliciting best evidence from vulnerable witnesses are discussed.

‘Show me what happened’: Low technology communication aids used in intermediary mediated police investigative interviews with vulnerable witnesses with an intellectual disability

This study investigates the manner in which two types of communication aids (wooden mannequins and line drawings) that are selected, introduced and managed in real intermediary-mediated police investigative interviews, improve the quality of evidence with vulnerable witnesses and victims with an intellectual disability. Multimodality interactional work carried out by the interviewing police officer, an intermediary and the vulnerable witness with limited verbal abilities to answer the open question, ‘What happened?’ is analysed. We demonstrate that low technology communication aids can successfully be utilised to elicit the same type of information from those with limited verbal abilities, as the verbal open question ‘What happened?’, in an unrehearsed and unbiased manner. Aids used in this manner retain the functionality of open questions while reducing their linguistic complexity. This validates the importance of adopting special measures such as the involvement of an intermediary and communication aids in investigative interviews to promote equal opportunities and a fair trial for all.

Personal and sexual boundaries: the experiences of people with intellectual disabilities

BackgroundPrevious research shows that people with intellectual disabilities have less knowledge about sexual health and are more vulnerable to victimisation. In cases of sexual abuse, they are likely to encounter the criminal justice system as vulnerable witnesses. Several challenges arise when people with intellectual disabilities are in communication with the criminal justice system. We aimed to explore the perceptions, experiences and knowledge of people with intellectual disabilities regarding personal and sexual boundaries in order to identify factors relevant for preventing sexual abuse, to develop future studies.MethodThe study had a qualitative design. Data were collected from seven people with mild intellectual disabilities (25–40 years; 2 men, five women) through one-to-one interviews in specialised health care services for people with intellectual disabilities (SHCS). The participants lived alone, in group homes and with their families. Many received professional support services. Data were analysed using thematic analysis.ResultsThe interviews identified that the participants want to be in romantic relationships and that some, consider sex to be unimportant. Many of them have had trouble finding someone to have a romantic relationship with. The participants were unsure about sexual consent related to sexual activity, though many could explain the concept of consent in other contexts. Many participants reported that they had experienced sexual abuse, including online sexual abuse. Those participants who had reported the sexual abuse had positive experiences obtaining assistance from the criminal justice system. The participants who had experienced sexual abuse reported trauma and fear related to their experiences.ConclusionThis study highlights the need for information about sexually abusive relationships, risks online and ways to get help. More attention should be given to the impact of trauma, police and mental health treatment following sexual abuse against people with intellectual disabilities.

AUDIO – VIDEO LINK KAO SREDSTVO ZAŠTITE POSEBNO OSETLJIVOG SVEDOKA I FAKTOR URAVNOTEŽENJA POLOŽAJA OKRIVLJENOG

The subject of this paper is the dual function of audio - video link in criminal proceedings in which vulnerable witnesses are examined - protection of witnesses and victims and ensuring the exercise of the defendant ‘s right to examine witnesses. In the first part of the paper, the author analyzes the concept of “audio - video link”, its legal nature, characteristics, roles and basic risks. The second part of the paper explores the normative and practical foundations of the protection of minors in criminal proceedings. The third part of the paper deals with the requirement to establish and maintain a balance of legitimate interests of enabling testimony and effective punishment, protection of the physical and mental integrity of witnesses and the right to defense. “In the balance test” of the European Court of Human Rights, the audio-video link is a “positive measure” of the state and a “counterbalancing factor”. The subject of the paper is also the normative regulation of an especially vulnerable witness. The aim of this paper is to point out the importance of proper use of technical devices for transmitting images and sound during the examination of especially vulnerable witness, but also its potential risks, possible proposals to improve the normative basis for their application and basic principles of audio - video link in criminal procedure.

Intermediaries in the criminal justice system and the ‘neutrality paradox’

AbstractThe intermediary special measure was introduced by the Youth Justice and Criminal Evidence Act 1999 (YJCEA) to assist vulnerable witnesses to give evidence in court. This article focuses on the role's relationship with its underpinning value of neutrality. Findings from 31 interviews with intermediaries in England and Wales and Northern Ireland, as well as judges in Northern Ireland, suggest that this aspect of the role is problematic and deserves critical examination. Though there is a broad commitment to neutrality among intermediaries, the role's practice reveals latent tensions and contradictions that contribute towards what I term the ‘neutrality paradox’. This article uses the Bourdieusian concept of ‘illusio’ as an explanatory tool to examine deviations from the normative expectation of neutrality. It focuses on how intermediaries experience and conceptualize their own neutrality and explores how this can aid understanding of the role's scope and position within the criminal justice system.

Adult Mock Sexual Assault Witness Perceptions and Non-Verbal Behaviors Across Different Interview Frameworks

ABSTRACT We explored adults’ perceptions of evidence-based interview frameworks in the context of sexual assault, in order to examine stakeholders’ suggestions that police interviews are not sensitive to complainants psychological and emotional needs. Participants (N= 91) watched a video of an implied sexual assault and were randomly assigned to one of three interview conditions: the cognitive interview (CI), a streamlined interview for vulnerable witnesses (SIM), and the same streamlined interview with narrative practice (SIM+P). After the interview, participants evaluated their perceptions of the interview process and interviewer. Their non-verbal behaviors during the interviews were also compared across interview frameworks. CI participants reported more information than SIM and SIM+P participants, but the reverse was true when interview length was controlled. CI participants perceived the interview as more effortful than SIM participants, but there were no other differences in perceptions or non-verbal behavior. Implications for interviewers are discussed.

Intermediaries in Chile: Facilitating the right of child victims and witnesses to participate and be heard in criminal trials

The intermediary system is a special measure designed to support the participation of vulnerable witnesses in the judicial system. In Chile, this model was initially incorporated in six regions with the application of Law 21.057 in October 2019. The measure establishes that a specially trained professional from the criminal justice system must facilitate communication during a trial between the court and child victims or witnesses of sexual or other serious crimes through the use of a linked room. This study analyses the perceptions of intermediaries and other members of the justice system in relation to the first year of implementation of the intermediary system based on information obtained through the use of focus groups and a survey. The results show an overall positive assessment of the experiences with and functioning of the ‘judicial intermediation’ and portray some of the best practices and facilitating conditions for the correct operation of the scheme as well as the difficulties and challenges for other Chilean regions and countries.

When good intentions are not enough: Professionals’ perceptions of the South Australian communication partner scheme

AbstractChildren and other vulnerable parties such as those with a cognitive, social or communication impairment frequently struggle to understand, and be understood in, the criminal justice environment. One way this has been addressed in jurisdictions around Australia and overseas is through the introduction of intermediary (or communication partner) schemes, whereby an independent third party assists vulnerable witnesses, and in some cases, defendants, with their communication needs. The South Australian Government introduced a trained volunteer communication partner scheme for defendants and prosecution witnesses as one element of its Disability Justice Plan in 2016. However, the scheme had relatively limited use and ceased operation on 1 March 2020. This study provides a qualitative analysis of stakeholders’ (N = 23 professionals) perceptions of how the scheme was implemented, the factors that constrained the usefulness of the scheme and how the initiative could be improved. Participants highlighted the need for a future communication partner service to include highly trained and specialized professionals situated within a government agency.

Police Decision-Making in the Absence of Evidence-Based Guidelines: Assessment of Alcohol-Intoxicated Eyewitnesses.

Regarding police procedures with alcohol-intoxicated witnesses, Swedish police officers have previously reported inconsistent and subjective decisions when interviewing these potentially vulnerable witnesses. Most officers have also highlighted the need for national policy guidelines aiding in conducting investigative interviews with intoxicated witnesses. The aims of the two studies presented here were to investigate whether (1) police officers’ inconsistent interview decisions are attributable to a lack of research-based knowledge; (2) their decision to interview, as well as their perceptions of the witnesses’ credibility could be influenced by scientific research; and (3) police officers decision-making and perceptions of witness credibility are biased by pre-existing social norms. In two separate randomized online experiments, police professionals and recruits (Study 1, N = 43; Study 2, N = 214) watched a recorded fictive witness interview to which they were asked to rate the probability of interviewing the witness, the witness’ credibility, and to estimate the witness’ level of intoxication. Results showed that interview probability and perceived witness credibility were affected by witness intoxication level. While it cannot be stated definitely from the present research, these findings provided indications that police officers and recruits lacked research-based knowledge. Results also showed that interview probability, but not perceptions of credibility, was influenced by a research-based message. In line with research, interview probability for the most intoxicated witness increased after reading the message. Unexpectedly, neither interview probability nor witness credibility was affected by social norms. The current findings added to the legal psychology literature by showing that a breath alcohol concentration (BrAC) as low as .04% was enough for police officers and recruits to consider intoxicated witnesses less credible than sober witnesses. Findings also indicated that, despite the lower credibility assessment, police may have some understanding that these witnesses can be interviewed at low intoxication levels (i.e., around .04%). However, this willingness to interview intoxicated witnesses ceased at a BrAC lower than the levels where research has found intoxicated witnesses as reliable as sober witnesses (i.e., BrAC < .10%). Future directions for research and policy development as well as theoretical and practical implications of the present findings are discussed.

Deepfakes, misinformation and disinformation and authenticity infrastructure responses: Impacts on frontline witnessing, distant witnessing, and civic journalism

Frontline witnessing and civic journalism are impacted by the rhetoric and the reality of misinformation and disinformation. This essay highlights key insights from activities of the human rights and civic journalism network WITNESS, as they seek to prepare for new forms of media manipulation, such as deepfakes, and to ensure that an emergent “authenticity infrastructure” is in place to respond to global needs for reliable information without creating additional harms. Based on global consultations on perceived threats and prioritized solutions, their efforts are primarily targeted towards synthetic media and deepfakes, which not only facilitate audiovisual falsification (including non-consensual sexual images) but also, by being embedded in societal dynamics of surveillance and civil society suppression, they challenge real footage and so undermine the credibility of civic media and frontline witnessing (also known as “liar’s dividend”). They do this within a global context where journalists and some distant witness investigators self-identify as lacking relevant skills and capacity, and face inequity in access to detection technologies. Within this context, “authenticity infrastructure” tracks media provenance, integrity, and manipulation from camera to edit to distribution, and so comes to provide “verification subsidies” that enable distant witnesses to properly interpret eye-witness footage. This “authenticity infrastructure” and related tools are rapidly moving from niche to mainstream in the form of initiatives the Content Authenticity Initiative and Coalition for Content Authenticity and Provenance, raising key questions about who participates in the production and dissemination of audiovisual information, under what circumstances and to which effect for whom. Provenance risks being weaponized unless key concerns are integrated into infrastructure proposals and implementation. Data may be used against vulnerable witnesses, or the absence of a trail, for legitimate privacy and technological access reasons, used to undermine credibility. Regulatory and extra-legal co-option are also a fear as securitized “fake news” laws proliferate. The investigation of both phenomena, deepfakes and emergent authenticity infrastructure(s), this paper argues, is important as it highlights the risks related both to the “information disorder” of deepfakes as they challenge the credibility and safety of frontline witnesses and to responses to such “disorder,” as they risk worsening inequities in access to tools for mitigation or increasing exposure to harms from technology infrastructure.

Intermediaries and cross‐examination resilience in children: The development of a novel experimental methodology

AbstractExperimental studies examining child 'witnesses' under cross‐examination typically rely on researchers questioning children using a 'barrister's script'. In the current research, experienced barristers used a defence statement from a mock perpetrator (who committed a theft 11 months earlier) to challenge typically developing children's evidence under cross‐examination. We also assessed whether Registered Intermediaries (RIs), trained professionals who facilitate communication between vulnerable witnesses and members of the justice system, help children reduce compliance with misleading cross‐examination suggestions. Results demonstrated that children (6–11 years) complied with barristers' challenges to a high degree: 94% agreed with at least one of the barristers' seven false suggestions. However, when assisted by an RI, children were significantly less compliant with barrister challenges. These findings, and additional analyses of the nature of child responses and barrister questions, provide novel exploratory evidence for the beneficial role of RIs in tempering the adverse effects of cross‐examination style questioning for children.

Extending witness intermediary schemes to vulnerable adult defendants

ABSTRACT Australian States and Territories continue to reform criminal procedure to provide assistance to vulnerable witnesses in an attempt to ensure they provide the best possible evidence. In response to the 2017 recommendations by the Royal Commission into the Institutional Responses to Child Sexual Abuse’s Criminal Justice Report, there has been a consistent move towards provision of witness intermediaries. Provision exists for such assistance in every State and Territory except the Northern Territory. Tasmania and Queensland have introduced such assistance most recently (in March and July 2021, respectively). So far only two jurisdictions – the Australian Capital Territory and South Australia – make any provision for intermediary assistance for vulnerable defendants. This article argues that because of the over-representation of mental health disorder and cognitive disability in the criminal justice system, and the impact this may have on the ability for defendants to be tried in a human-rights consistent manner (including the risk of wrongful conviction), intermediary assistance should also be available to defendants nationally. The experience of selected countries that already provide intermediary assistance to defendants (United Kingdom, Northern Ireland and New Zealand) will be outlined to assist with such reform.

Establishing Gender Sensitive Witness and Victim Protection Measures in Complex Criminal Cases

The justice system relies heavily on evidence to establish the commission of a crime. In most complex criminal cases such as human trafficking and terrorism this evidence are not readily or easily accessible for a number of factors. One of such reason is that most times victims may be dead and so cannot give oral testimony of what happened to them. Other reasons that were the victim or witnesses of complex crimes are children or women they are usually vulnerable and are over taken with fear of what may happen to them or members of their family if they reveal the truth of what they know. For this reason, it is difficult for them to step out to give evidence to the police not to talk of give oral testimony in the open court of what they witnessed. Where in the cause of an investigation of a crime the police however stumbles into human evidence who witnessed the commission of a crime or is a victim it is the duty of both the investigator and the prosecutor to protect such vital witness knowing how sensitive and vital their evidence would help to bring about closure on the perpetuators of the crime. This paper identifies the challenges of witnesses and victims of complex crimes, in supporting the justice system by giving evidence of the commission of a crime without being protected by the State. For this reason, the paper proffers solutions on witness protection measures that can be made available to them. Keywords: Victim, witness, vulnerable witness DOI: 10.7176/JLPG/112-11 Publication date: August 31 st 2021