Assisting persons with communication disabilities to access the criminal justice system: South African legal practitioners' perceptions of questioning strategy guidelines

Abstract

Background: An estimated 2.2 to 3.8% of individuals worldwide have communication disabilities (CD) (World Health Organization, 2001). In addition to being at an increased risk of crime and abuse, individuals with CD experience multiple barriers when attempting to access the criminal justice system (CJS). Despite provisions provided in both national and international policy documents and legislation, individuals with CD are often not offered the necessary accommodations to assist them in accessing justice on a fair and equal basis with others. This is due in part to legal practitioners not having received training to work with individuals with disabilities, which negatively impacts on their knowledge and skills regarding the challenges experienced by these individuals when they attempt to access the CJS. Therefore, legal practitioners are often unaware of the accommodations that can be offered to persons with CD. For example, using questioning strategies that are appropriate for individuals with CD, including those who use augmentative and alternative communication (AAC). Methods: Existing literature on questioning strategies recommended for use with both children and adults with CD in criminal courts was integrated using a synthesis matrix. Questioning strategy guidelines were developed from the synthesised data. Specific attention was given to those principles that would accommodate individuals using AAC. Individual interviews were conducted with expert South African legal practitioners regarding their perceptions of the clinical utility of these questioning strategies. Thematic analysis of the transcribed interviews was used to establish common themes in the interviews. Results: During the thematic analysis of the data, four overarching themes were identified as being important to the participants in the study, namely the person and their specific needs, preparation and support, court processes, and universally appropriate techniques. Within these themes, participants felt that no two witnesses with CD are the same and that questioning strategies need to be adjusted to suit each individual witness. Preparing the witness for their court experience is seen as vital for the witness to be able to testify effectively in court. This is particularly true in the South African adversarial system where the witness is likely to be cross-examined. In addition, participants noted that many of the accommodations recommended in the questioning strategy guidelines are already in regular use in the South African criminal courts. However, defendants with CD are not routinely offered the same accommodations as complainants with CD. Conclusions: A consolidated set of questioning strategy guidelines with a strong evidence base has been developed. The results of this study foreground the challenges faced by individuals with CD when questioned in criminal courts, particularly during cross-examination. More training of legal practitioners from the beginning of their studies and through continuing professional development is needed to improve their understanding of and sensitivity to the challenges faced by individuals with CD. Training must include disability sensitivity and skills-based training to ensure that communication challenges are accommodated rather than exploited. In addition, further research is needed to explore how cross-examination in the adversarial CJS can be tempered so that more appropriate questioning strategies can be used with those witnesses who have CD.