Democracy and justice in the UK are we training to ask the right questions?

To find things out, we need to ask questions.  The quality of our questions will depend on what we already know. At the same time, the quality of our questions will decide the answers we get.  In court, we rely on evidence so that the judge and the jury can determine whether the prosecution or the defence will succeed.  Although evidence, like a picture, is worth a thousand words, it remains mute without context. Evidence needs questions to give the context.  By providing the context, the questions allow the listener, as well as the questioner, to understand the evidence.  What the questions do is create an image in the listener’s head.  How that image is created depends on the quality of the questions.

Good questions are not easy to design because they take time and knowledge of the topic. Anyone can learn to ask good questions with the right training and the right approach to the information. In many ways, good questioning skills are linked to political philosophy.  One could suggest that the quality of questions show the quality of political philosophy that informs the legal and political communities.  Political philosophy raises questions about the best way to live and the best society for making that happen.  At a basic level, political philosophy helps us to think critically about our politics and our laws. As such, it offers a way to train people for questions need to sustain a democracy.

We may think the quality of questions is unimportant.  After all, we ask questions every day and we get answers.  However, the quality of questions is vitally important to the health of our democracy. Without good questions and good questioning techniques, we will be unable to hold the government or people in power to account. Poor questions lead to poor outcomes.  Without good questions, we cannot have justice.  In a democracy, questions are often confused with political theatre.  For example, Jeremy Paxman repeating the same question to Michael Howard is not good questioning technique.  It is good political theatre.  The danger is that people in a democracy confuse political theatre and questions because that is what they are exposed to through radio and television.  The notable example has been the Leveson inquiry and its high quality of questions, which I have discussed before here.

When we see poor questioning on television and radio, we can almost excuse the presenters for their questioning technique.  In most cases, they have little time to prepare their questions or plan their questions.  However, the same cannot be said for politicians or the Crown Prosecution Service.  If their questioning skills are weak, then democracy and the law will suffer.  Poor quality of questions and questioning technique do little more than confirm pre-conceived ideas or views.  The evidence remains mute and we are unable to understand or judge it adequately. We can see the poor questioning techniques in two recent public examples.

The first example, the Treasury Committee’s poor handling of the Bob Diamond interview.  The committee asked poor questions, and received worse answers.  An extended analysis of the issue can be found here.  The committee showed bad questioning techniques.  First, they focused on closed questions.  For example, yes or no questions allow one-word answers.  By asking these, the line of inquiry is closed. Instead, only use these to close off questions or to guide the questions in a certain direction.   They used questions to put words in the subject’s mouth. As a result, the answers were not very good and the issues to be understood were not clarified. Overall, democracy was not served by their performance.  For political theatre, it was fun. Forensically, it was mediocre at best.

We can see the same approach in a recent high profile court case involving a death in custody. The questions, as described in the press, do not show a strong forensic skill.

Here is an example:

Question:       “Why would you tell the doctor that Mr Rigg was feigning unconsciousness when you didn’t know what was wrong with him? Would you agree that this was grossly negligent of you,”

The first question is good because it is open ended and forces the witness to explain what they were doing.  The question opens the witness to cross-examination.  Yet, the question is weakened by the second question.  The question tries to connect the first question and its answer to being negligent.

A better approach would be to have the officer explain what their assessment procedure.  They would then be asked explain what negligent behaviour would be considered.  Once the witness had explained their understanding of negligent behaviour, the questions could then focus on the discrepancy between their own behaviour and correct as well as incorrect behaviour.  The open questions would then be followed by closed questions that close off lines of defence. For example, was it correct behaviour to give an assessment without investigating the prisoner?

 

Another example of a poor question is the following:

Question:       “Do you see accept that providing history to the FME was entirely misleading?”

The question offers a yes or no answer.  The response will not illuminate the issue. The witness has an out.  He can put the responsibility on to the other party.

Response:     “I accept that it could have been misconstrued as misleading.”

A better approach would be to focus on why the officer gave the Forensic Medical Examiner  [FME] the statement.  For example, it could start with:

• What did you say to the FME?   [Answer] [Open]
• What is your approach to speaking to the FME? [Answer] [Open]
• Why does the record show a different approach? [Answer] [Open]
• Why do you give a statement to the FME? [Answer] [Open]
• Is this a standard approach to giving a statement? [Answer] [Closed}
• Have you ever given a statement to the FME that was knowingly untrue? [Answer] [Closed]
• Why is the statement you gave to the FME different from what you are saying now? [Answer] [open]

Here is another opportunity that is lost by questions that are not structured well.  The questioning led to the following situation:

[The officer] was also accused of failing in his duty because he did not order a sweater or blanket for Mr Rigg for around half an hour – despite the fact he was half naked, lying on a concrete floor, and cold to touch.

To which the officer replied:

“I cannot explain Sir but it is certainly not because I was wanting to treat him poorly,” said PS White.

Here good questions and good questioning technique could open up the issue.  The officer has mentioned intent. By mentioning intent, the issue of motives and context can be explored.  The officer has left himself vulnerable to follow up questions can reveal more of what was happening. Here are some examples of follow up questions that would have widened the issue.

• Question: You mention it was not your intent to treat him poorly, but what was your intent? [Open]
• Question: Why is there a difference between what you intended and what happened? [Open]
• Question: In other cases, how have you treated other prisoners in your care? [Open]

By contrasting the behaviour and the intent in other cases to this one, the witness is put in a difficult position. They are forced to explain the discrepancy between their intent and outcome.  They can be forced to explain what they do in other situations.  Then their behaviour can be contrasted to the current situation. However, we do not see this quality of questions. Instead, we have questions that try to put words in the witnesses’ mouth.   These leading questions do not provide the jury as a way to understand the witness. In addition, the questions do not force the witnesses to explain themselves or explain the discrepancies.  The following questions are quite common but do not serve a purpose in forcing the witness to explain themselves or the evidence.  They are no better than asking “Are you a liar”.  It looks good, it sounds good, but it does not help us understand the evidence.

• “I’m going to suggest to you PC Glasson that the reason there is confusion in the documents is simply because you are lying about the MDT… do you accept that?”
• “I am going to suggest to you that you put Mr Rigg in the foot well, in the prone position and that explains the injuries on his face, and because of his height he was put with his legs bent up, touching his buttocks.”
• “If you had put him in that position it would have been quite wrong…it would have be a gross dereliction of your duty officer, do you accept that?”

If democracy and justice are to be served, we need better questions.  We need politicians and lawyers to review their questioning technique.  I am not aware of any politician or lawyer reviewing their transcripts to analyse their questioning techniques.  We see such performance management and training techniques in other areas, especially sport, so why do we leave it out of something that is even more important? The quality of their questioning skills is vital to the success of our democracy yet, the government and the schools seem to invest very little in developing those skills. We need to understand how our politicians and lawyers are being trained.  Where are they learning their forensic skills?  Is anyone taking the time assess their forensic questioning skills?

Our democracy and our hope for justice depend on the answers to those questions.

 

 

Related articles

• Why questions are so poor at select committees: a case study of Treasury Committee and Mr. Diamond. (lawrenceserewicz.wordpress.com)
• Custody sergeant accused of ‘gross failings’ (independent.co.uk)
• Jay, Leveson, our modern day version of a Socratic dialogue (lawrenceserewicz.wordpress.com)
• This ‘grilling’ of Diamond was a wasted opportunity: Some lessons for the MPs (ianfraser.org)
• Ask Questions! (radocracy.com)