Thursday, 26 February 2015

Giving evidence and answering questions in court

Witness giving evidence 
If you’re facing a court appearance as either a defendant or a witness you should expect to be asked a lot of questions.  Advocates, such as solicitors, are taught a variety of methods for questioning witnesses to enable them to undermine the evidence given by a witness for the other side.

In this post, the advocacy experts at London Drink Driving Solicitors will show you how to answer questions to give the best possible impression.

Er… I think it was kinda like this – be direct

Have you ever spoken to somebody who can’t give you a straight answer to a simple question?  I’m sure you have and you may have found their answer less convincing because of the way they spoke to you.

Consider the following two transcripts of evidence:

Q. What was the nature of your acquaintance?
A. We were, er, very close friends. Er, she was even sort of like a mother to me.
Q. What time did she leave the party?
A. If I’m not mistaken, it seems like it was, perhaps midnight.


Q. What was the nature of your acquaintance?
A. We were close friends. She was like a mother to me.
Q. What time did she leave the party?
A. It was just after midnight.

In the first example, the person answering the questions is hesitant (lots of “er’s”), in the second these are gone.  In the first set of questions and answers, the witness casts doubt on her own account by saying “she was sort of like a mother to me”, “if I’m not mistaken” and “it seems like it was, perhaps midnight”.  When you say things that make you appear to doubt your own evidence you will sound less believable.  You can see that in the second example the witness is no longer unsure and nobody can doubt she left the party just after midnight.

It should come as no surprise that two psychological experiments (O’Barr and Conley 1976; Erickson et al 1978) have shown that when confronted with the second sample jurors found that witness more believable.

Be powerful

Powerful speech is direct speech - people who omit certain characteristics sound more authoritative and thus more believable.

A linguist called Lakoff, in 1975, provided a list of characteristics that were later used by O’Barr and Conley to test how use of language affected the opinion of a jury. Some of the characteristics she highlighted as bad form were:
  1. Frequent use of phrases such as “I think”, “it seems like”, “perhaps” and so on tends to make people less confident in the accuracy of your answers;
  2. Answering with a question rather than giving a direct answer, for example, “I had one… maybe one and a half pints?” When you ask a question, it’s normal to have a higher intonation (your voice rises) at the end of the question whereas when you make a statement your voice remains flat. A rising intonation at the end of a statement makes it sound like a question and affects the weight placed on it by a jury;
  3. Repetition – if several questions have the same answer then repeat yourself, but that’s not what we mean here. By repetition we are talking about the kind of repetition that makes you sound like you are trying to convince yourself, e.g. Q. “What time did you leave the party?” A. “Midnight… er yes it was midnight”.  Repeating an answer sounds like you are not sure of the answer and so makes you seem a less reliable witness in teh eyes of the people you are trying to convince, either the jury or magistrates; and
  4. Intensifiers. Lakoff considered that words designed to intensify an answer were, in her opinion, characteristics of female speech, which she judged to be less powerful than male speech. Irrespective of whether Lakoff was correct on the gender differences we have all heard people talk who sound as though they are trying to increase the importance of something – usually themselves. In the 21st century people seem to use words like “very”, “awesome”, “amazing” etc frequently so perhaps this is less of a concern nowadays;

O’Barr and Conley described speech using the Lakoff phrases as “powerless”.  They called direct speech, which omits all of the above, as “powerful”. More importantly, they found that men and women using “powerful” speech were seen as more competent, intelligent, likeable and believable.

As a witness who, presumably, wants to be seen as truthful being judged likeable, competent and intelligent is important because you are more likely to be perceived as confident and a confident witness is a believable witness. In fact, a study by Wall (1965) found that jurors tended to believe confident eyewitnesses 80% of the time even when the witness was wrong!

Friday, 6 February 2015

How will the police decide if I should be charged with drink driving?

Camberwell Green Magistrates' Court

A question I’m often asked by clients is “how do the police decide whether to charge or take no further action (NFA)?”

What are the options?

Let’s have a quick think about what options are available to the police at the end of an investigation.

The police have four options in most cases.  They can, charge (or summons you to attend court), caution you, issue a fixed penalty notice or take no further action.

Cautions are rarely issued in motoring cases and are never used where somebody is accused of drink driving.  This is because drink driving carries a minimum 12-month driving ban, which only the court can impose so the case has to be dealt with at court.

Less serious driving allegations, such as speeding, may be dealt with by way of a fixed penalty notice, although in practice these are still dealt with by the court without you needing to attend the hearing.

How do they decide whether to charge?


First, the police or a CPS solicitor will consider the evidence obtained by the police and decide whether there is sufficient evidence to charge.

They should consider whether the evidence is admissible, reliable and credible.  A straightforward drink driving case will have evidence of a police officer who sees the suspect driving and evidence that the person failed a breath test.  Although, we are frequently seeing cases where there is no admissible evidence of driving.  For example, the police might say “I was told by two separate witnesses that [Miss X] was driving.”  This is called hearsay and should not be admitted into evidence.

If the police decide that there is not enough evidence to charge then that is the end of the case.  If they decide there is enough evidence the decision maker must move on to ask themselves whether prosecuting the person in court is in the public interest.

Public interest

In 1951, Lord Shawcross, the then  Attorney General, said, “[i]t has never been the rule in this country, I hope it never will be, that suspected criminal offences must automatically be the subject of prosecution.”  The point he is getting at is that just because somebody has committed a crime it does not mean that it is always in the public interest to prosecute them.

In drink driving cases, the prosecution will always reach the conclusion that a prosecution is in the public interest.  This is because of the risk of serious injury and death that can result from driving a car while over the drink driving limit.  It is also because drink driving carries a minimum 12-month driving ban that only a court can impose; so to be banned the police have to send every suspect to court.

Putting it all together

If the prosecution decide there is enough evidence to charge a person with drink driving then it is a foregone conclusion that they will decide it is in the public interest to prosecute that person in court.  In less serious motoring cases, it is possible to avoid a court appearance – always speak to an experienced motoring solicitor if you are facing a driving allegation... it could save your driving licence.

The whole process is called the Full Code Test and should be applied before any decision is made to charge a person with an offence or continue with a prosecution after one has begun.

Thursday, 5 February 2015

Is a drink driving conviction more likely if you mix alcohol and energy drinks?

Could energy drinks increase your chance of a drink driving conviction?

An interesting new study on drinking and driving from a the University of Western States in Oregan, USA has been published, which shows that people who mix energy drinks with alcohol may be more likely to drink drive than those who consume only alcohol.

The study looked at 355 people who consume alcohol.  The researchers found that 57% of those who consumed alcohol mixed with energy drinks admitted that they had driven while above the drink driving limit.  In contrast, 44% of those who consumed alcoholic drinks not mixed with alcohol admitted to drink driving.

The author of the report, Conrad Woolsey said, “From a physiological standpoint, [drinking energy drinks] does change the brain chemistry to make you more confident”.  Woolsey went on to say that energy drinks may increase levels of dopamine, making people feel like they are more capable of certain actions.  This might explain why those consuming energy drinks with their alcohol were more likely to drink drive.

People who mixed energy drinks with alcohol were more likely to drink more frequently and had more episodes of binge drinking.  More frequent drinking sessions may also explain why mixed drink consumers are more likely to drink drive – because a large number of people are caught drink driving the morning after a heavy session!

None of this means that you will be safe to drive after consuming alcoholic drinks that are not mixed with energy drinks.