Seeking or suggesting the truth? an examination of Canadian lawyers' questioning practices

Lively, Christopher J. (2017) Seeking or suggesting the truth? an examination of Canadian lawyers' questioning practices. Masters thesis, Memorial University of Newfoundland.

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Abstract

Ninety-one court examinations of lawyers asking questions to witnesses were analyzed. Each unique examination was coded for the frequency of utterance type being spoken (i.e., questions identified as open-ended, probing, closed yes-no, leading, forced choice, multiple, clarification, re-asked, as well as for offered opinions and facilitators), the assumed purpose type of each utterance (i.e., unknown, administrative, information gathering, challenging the witness’ account/details), lawyer type (i.e., prosecutor vs. defence), and examination type (i.e., direct vs. cross). The results showed that approximately 80% of the questions asked were inappropriate for gathering reliable information. In addition, there were no significant differences found between prosecutors or defence lawyers regarding the proportions of the utterance type spoken. However, there was a significant difference with some utterance types as a function of examination type; direct examinations contained significantly more closed yes-no, probing, and open-ended questions, whereas cross examinations contained significantly more leading and clarification questions. There were no significant differences found between lawyer type as a function of purpose type, with the exception of cross (vs. direct) examinations containing significantly more challenges. Although the findings were expected, these data suggest that the vast majority of courtroom questioning practices run counter to the truth-seeking function of the judiciary. Implications for the role of these questioning practices in the courtroom are discussed, along with the extent to which courtroom interviewing practices are in line with the concerns raised by lawyers when arguing against the inadmissibility of statements due to inadequate police interviewing practices.

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