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Vulnerable witnesses
Scope, nature and research
Brian R. Clifford
Professor Emeritus University of East London
Honorary Professor University of Aberdeen
The concept of Vulnerability
Psychology and law conceive of vulnerability rather
differently
Psychologically, vulnerability usually refers to a person’s
deficits
In the Vulnerable Witness (Scotland) Act 2004, the term is
used in a subtly different way. Here vulnerability refers to
the person’s product – their evidence.
Thus the Act stresses special measures in and around
court appearance, “ where there is a significant risk that the
quality of their evidence may be diminished … in
connection with giving evidence at trial”, predicated on the
witness’s fear, distress and possible intimidation.
But, as initial evidence gatherers, you have to deal with
vulnerable persons, in the psychological sense, and the
quality of evidence extraction is thus critical
Vulnerable witnesses
Persons under the age of 16 years (children)
Adults subject to mental health or mental disorder
problems
Adults with significant impairment of intellectual or
social functioning
Adults whose evidence may be diminished due to
fear or distress but with no underlying impairment
Today I will be looking at children, the learning
disabled and the elderly as vulnerable witnesses
Children as vulnerable witness
Memory strategies develop with age
Thus there are age related differences in the number, type
and efficiency of strategy usage
Forget faster than adults
Report fewer details than adults in free recall
Give answers that they think are wanted
Highly suggestible
Confuse the source of their memories more than adults
These deficits stem from cognitive and social factors
The reality
The quality of the child’s testimony is less a
function of the child than of the interviewer
There is now ample guidance on how to
interview children – MOG, ABE, SE
Research has suggested methods that can
further enhance the evidential value of
children’s testimony
One such method is mental or physical
context reinstatement
Physical and mental context
reinstatement
Physical CR
La Rooy et al. (2007) looked at the effect of perfect-CR,
imperfect-CR and no-CR on 5-6 year-olds’ event
memory under immediate and repeated delayed
interviewing. They found that
– CR attenuated forgetting (27% vs 50%)
– Accuracy was 86% vs 72%.
– Imperfect-CR did not produce worse performance than
no-CR.
– P-CR resulted in most accurate new information in the
repeated interviews.
– Thus CR can have facilitative effects across repeated
interviews
Physical and mental context
reinstatement continued
Mental context reinstatement
– Mental context reinstatement is a key element of the Cognitive
interview
– Mental CR is not built into MOG, ABE or the SE guidance
– Granhag & Spjut (2001) found, in children aged 5-12 years of age,
more correct information with a CI than with a control interview
based on the MOG and ABE
– Holliday (2003) found CI led to more complete recall and 27% more
correct information in 4-5 yr-olds and more Person, Action and
Object information, than a MOG-based interview
– The CI can also offset the negative effects of post-event misleading
information in children if given before the misleading information
(Memon et al. 1996; Milne & Bull, 2003) or after it (Holliday, 2003;
Holliday & Albon, 2004)
Conclusion re. Children as
vulnerable witnesses
Children do have poorer memories than adults and are
more susceptible to suggestion, misleading information
and repeated questioning
Provided interview strategy and questioning are age
appropriate children can be reliable and credible witnesses
Government guidelines on interviewing are not the best
available
The use of CR within the umbrella of the CI offers itself as
a facilitative technique that can reduce the weaknesses
identified under categorising of children as vulnerable
witnesses
The CI lends itself to video taped evidence-in-chief just as
well as that suggested by ABE and the Vulnerable Witness
(Scotland) Act 2004’s special measures
The learning disabled as vulnerable
witnesses
Learning disability, intellectual impairment and mental
retardation are used interchangeably
Intellectual impairment is defined as a state of arrested or
incomplete mental development resulting in a significant
impairment of intellectual and adaptive and social
functioning (APA, 2000)
Estimates suggest that there are ca.1.5 m LD persons in
the UK.
Most LD live in the community and are disproportionately
likely to be either victims/witnesses of crimes, or
perpetrators (e.g., Gudjonsson, et al. 1993, found 34% of
adult suspects awaiting interview had IQs of 75 or less)
Perceived problems with LD
witnesses/victims
Significant impairment in cognitive and social
functioning
Poor memory
Limited linguistic skills
Excessive desire for attention
Lack of awareness of consequences
Prone to fabricate accounts
High levels of suggestibility (Yield and Shift)
Highly influenced by the nature of questioning
Reality
Robinson & McGuire (2006)
25
Mean No. of details recalled
20
15
SI
10 CI
5
0
correct detail fabrications
Reality continued
Wright & Holliday (2007)
80
Mean no. of correct details
70
60
50
40 Low MMSE
30 High MMSE
20
10
0
SI MCI ECI
Reality continued
Brown & Geiselman (1990)
Found CI with LD adults led to 33% increase in
correct detail recall compared to a control
interview
Milne et al. (1999)
Found CI increased correct detail recall by 35%
with mild LD adults compared to a structured
interview
Milne & Bull (1996)
Found 7-10 year old children with mild LD
improved Person, Action and Surrounding detail
recall and increased accuracy with a CI compared
to an SI
Conclusion concerning LD
vulnerable witnesses/victims
Their cognitive and social impairments cannot be
denied
These eventuate in witnesses who have poorer
memories, are more suggestible and thus more
intrinsically unreliable
However research has shown that there are
methods of interviewing that can increase their
evidential value
The CI should perhaps be the preferred method of
investigative interviewing with such witnesses
The elderly as vulnerable witnesses
We are an ageing population. By 2011 some 12m
people in the UK will be of pensionable age, i.e.,
some 20% of the population
The BCS suggests that 15% of victims of crime
were over 65. Some 7.3% were victims of violent
crime
Neglect and abuse are being reported with
increasing frequency by older people
In a survey of 159 police officers in England, a
tenth of the officers encountered elderly witnesses
over 50% of the time. Perceptions of the whole
sample were predominantly negative (Wright &
Holliday, 2005)
Perceived problems of the elderly as
vulnerable witnesses
Memory decline is age related and multifaceted
– Encoding, storage and retrieval
– Availability and deployment of processing resources
– Control processes associated with neural degeneration
Poorer memory quantity and accuracy
– Recall/recognition
– Episodic and event memory
– Source monitoring
– Confidence in errors
Distractibility
Rays of hope in terms of the elderly
Rose et al (2005)
Remembered
Young 68% 46% Old
Forgot Forgot
32% 54%
Correct
63%
36%
Correct
Rays of hope continued
Wilcox et al. (2007)
TP TA
90
80
%age Identification
70
60
50
CR
40
No CR
30
20
10
0
Hit Foil ID No ID Foil ID CR
Rays of hope continued
Wright & Holliday (2007)
%age better than ABE-based interview
30
25
%age better than SI
20
Young
15
Young-old
10 Old-old
5
0
ECI MCI SI
Conclusion re elderly witnesses
The elderly are heterogeneous but do have
systemic weaknesses
Recall and identification can be improved by
appropriate methods
These methods are based upon giving
environmental and cognitive support to abilities
that may be absent, poorly deployed or
inefficiently activated
The CI is one such method that recommends itself
Overall conclusion re vulnerability
Vulnerable persons form various continua
These continua involve social, emotional,
behavioural and cognitive dimensions
The various dimensions are not mutually
exclusive
I have looked at the cognitive continuum
today
This continuum stretches from chronic,
through acute, to no cognitive impairment
Children
LD Chronic cognitive impairment
Elderly
Drugged
Acute cognitive impairment
Drunk
Possible acute/chronic
Anxious cognitive impairment
Depressed
Fearful No acute or chronic
Intimidated cognitive impairment
Scope, nature and research
Scope of vulnerability – huge
Social, emotional, behavioural, cognitive
Nature of vulnerability – multifarious
Auditory, visual, intellectual, linguistic deficits, fear, distress,
intimidation
Research on vulnerability - ongoing
Applicable
Uneven
Fledgling stage
Children as vulnerable witnesses
Heydon, 1984, p.84
Observation and memory less reliable
Live in make-believe world
Very egocentric
Very suggestible
Little notion of need to speak the truth
Can be evil beyond their years
Social and cognitive factors
Social factors
Compliance
Repeated interviews and questioning
Misinformation effects
Cognitive factors
Memory
Event-based knowledge
Language
Concepts of time, quantity, etc., are difficult
Reality
Miles et al.(2007)
LD Normals
Age 11.4 11.1
IQ 59.9 104.4
Yield 11.0 5.34
Shift 6.51 4.96
Total Suggestibility 17.51 10.30
Magic show
Correct detail 44.96 126.88
False-new 15.9 6.10
False-interview 1.62 1.86
The reality
Gudjonsson & Henry (2003)
Children Normal Mild LD Mod LD
IQ 102.9 63.3 46.8
Imm Rc. 17.1 9.1 5.1
Yield 4.6 7.0 8.9
Shift 3.4 4.6 7.9
Total Sugg. 7.9 11.6 16.8
Reality continued
Gudjonsson & Henry (2003)
Adults Normal Mild LD Mod LD
IQ 94.4 67.4 49.6
Imm Rc. 13.4 6.9 1.6
Yield 5.6 7.7 11.3
Shift 4.3 4.4 5.4
Total Sugg. 9.8 12.1 16.7
So who are vulnerable witnesses
Under the 2004 Act the definition of
vulnerable witness is widened to include
anyone where there is a significant risk that
the quality of their evidence may be
diminished by reason of fear or distress in
connection with giving evidence at trial.
Thus the Act now identifies as vulnerable
