To address the issues of acquiescence and suggestibility, great care must be taken with the questioning styles used in consultations with a client with intellectual disability.
Although all people are vulnerable to suggestion when being interviewed, people with intellectual disability tend to be more susceptible to the negative consequences of poor questioning (Milne & Bull, 2001). Kebbell et al. (2001) state that two categories of questions frequently used by lawyers can cause problems for witnesses with intellectual disability: (1) questions that communicate the answer required (including yes/no questions, either/or questions and repeated questions), and (2) questions that confuse the witness (including questions with a negative or double negative, multiple questions, and questions with complex vocabulary and sentence structure). They state that ‘all of these unhelpful question types are more likely to be asked by hostile lawyers in cross-examination than by friendly lawyers in evidence-in-chief’. (For more information, see the section: ‘Questioning’.)
Understanding legal terms
Ericson and Perlman (2001) examined the knowledge and understanding of legal terminology used commonly in court proceedings amongst adults with developmental disabilities. They asked the participants to identify which terms they were familiar with and then asked participants to give detail about what they thought the words meant. They found that 75 percent or more of participants with developmental disabilities understood the terms: Court, Jail, Judge, Lawyer, Lie, Police Officer, Truth, Witness.
However, the following terms were not understood by at least 40 percent of participants: Accused, Adjourn, Allegation, Arrest, Case, Charges, Convict, Court Reporter, Crown, Attorney, Defendant, Detective, Evidence, Guilty, Hearing, Interrogate, Objection, Prosecute, Suspect, Swear an Oath, Testimony, Trial, Victim.
The study also found that reporting familiarity with a word was not a reliable indicator of actual familiarity with a word. This is important, because it shows that simply asking ‘do you understand?’ is not a sufficient way of determining a client’s actual level of understanding. It is important to ask clients to explain back in their own words what they understand, and then use that response as a basis to clear up any misunderstanding. The fact that some of the participants were able to provide accurate responses suggests that, if given time and support, people with intellectual disability have the potential to develop deeper understanding of the legal processes affecting them.
In general, questions should be kept as simple and concrete as possible. Abstract questions and concepts should not be used. Ideally, interviewers should consider ways that they can change their own behaviour and adapt their questioning formats to suit the communication needs of the interviewee (Brennan & Brennan, 1994).
Important things to remember when interviewing clients with intellectual disability include:
- Use plain, simple English
- Avoid closed questions
- Think before repeating questions: repeating questions may encourage the client to change their answer or to acquiesce. The client may assume that their first answer was wrong and that they should change it (Brennan & Brennan, 1994)
- Keep questions of choice very simple. Either/or questions tend elicit more reliable responses, because giving too many choices will be more likely to produce a ‘last option bias’. This could be caused by the client’s ‘difficulty in remembering the choice of replies’ (Milne & Bull, 2001)
- Avoid multiple questions (for example: ‘As you went into the kitchen, he picked up a knife to defend himself against you? Because you have attacked Adrian in the past, have you not?’). Instead, ask each question separately, and give time for a response to each
- Avoid double-barrelled questions
- Avoid double negatives.
(For further information, see the section: ‘Questioning’.)
An example of how repeated questioning may encourage someone to acquiesce
Lawyer: Do you remember at your house there used to be shovels kept under the house?
Lawyer: No shovels?
Witness: There weren’t any shovels.
Lawyer: No shovels at all?
Witness: I don’t think so.
Lawyer: Big long shovels, like this?
Witness: Oh maybe there were some shovels?
Adapted from Kebbell, Hatton, Johnson & O’Kelly, 2001.