Cross-Examination For Journalists

In the dystopian hellscape that is 2020, we have all become accustomed to feelings of despair and frustration on a regular basis. Whether you’re interested in the letter or the spirit of the law (and I would argue that the latter is more important), the restrictions placed on our daily lives by the threat of COVID-19 have necessitated sacrifices from all those determined to abide by them for the greater good. 

In recent days, it has become apparent that certain public figures are less inclined to make these sacrifices. As such, it is incredibly important that journalists, given the opportunity to hold such figures to account, are able to do so. Many are very good at it. Some are not, much to my despair and frustration.

In a criminal court context, cross-examination is an opportunity to either undermine unhelpful evidence that your opponent has elicited from a witness, or to elicit helpful evidence from the witness that your opponent has not. It is an art, rather than a science, and a very difficult art to master. I do not claim to be a master of it, but I have been cross-examining witnesses in courts and tribunals for years.

I am also not a journalist, but to me it seems that a couple of our more prominent journalists could do with some brief refresher training in how to ask effective questions when cross-examining politicians. Obviously, there are significant differences between a court and a press conference (if only politicians could be threatened with contempt of court for prevaricating, in the same way that judges can threaten witnesses…), but some of the same principles definitely apply.

Let’s watch this video of ITV’s Robert Peston using his opportunity to ask the Prime Minister a question, in respect of Dominic Cummings’ recent bizarre antics, at the government’s press conference on 24th May 2020:

Here’s a verbatim transcript of what he said:

Hello. Hello Prime Minister…uh, hello Professor Powis, good to see you both. Um, th-the simple agreed facts in this case are that, uh, Bor-uh, that um, excuse me Dominic Cummings, in a prima facie sense breached three – hello? Can you not hear me? Oh sorry, ha ha, it’s all…technology’s working so well – as I say, th-the agreed facts are really simple. Uh, Dominic Cummings, your aide, in a prima facie sense, breached three of the lockdown rules, uh, he left the house when somebody he was living with…uh…had coronavirus symptoms, uh, he was in a confined space with that person, in this case a car, for several…hours. Um, and he went to a second home. I-I just want to be clear Prime Minister: in saying that he behaved honourably, did the right thing, uh, by, uh, you know, uh, trying to put in place childcare arrangements are you saying that if somebody is in the same position as Dominic Cummings and has the same childcare concerns, they are completely at liberty to do precisely what he did: yes, no, not sure, and secondly, um, retail businesses need a bit of time, shops need a bit of time to prepare to open, are they opening on June 1st?

A complete and utter word salad, delivered in a distractingly varied tone. Annoyingly, there’s a good question in there, but it’s completely buried by the rubbish surrounding it.

Why is this such a bad question?

1. It Is Obviously Not Well-Prepared

I have no idea how much thought beforehand that Robert Peston put into his question(s), but by the looks of the video it can’t have been much. It is incredible that a professional journalist – who presumably had plenty of notice that he would be asking a question at the government briefing – would sound as poorly-prepared as he did. Tripping over words and giving the impression that he was making it up as he went along lends itself to a rambling and unfocused performance.

If you don’t ask your question(s) with conviction, you lose your audience.

2. It’s Two Questions In One

I know that the remote format of this particular press conference means that follow-up questions are hard to come by. Indeed, there are complaints that whoever runs the press conference was muting the journalists as soon as they could, thus denying them the chance to ask further questions.

Unfortunately, Peston and others appear to be dealing with this by trying to ask two, three or four questions at once. This sort of thing isn’t tolerated in court, because it’s likely to be confusing for the witness and makes it harder for everybody to follow the flow of questions and answers. As solicitors and advocates, the mantra “one fact per question” is hammered into us for good reason.

Additionally, the more questions you ask at once, the harder it is for your audience to follow which question (and prospective answer) is actually important to you. In the context of the press conference on the 24th of May, everybody cared about the impact of Dominic Cummings’ actions on government guidance in respect of coronavirus. Relatively speaking, nobody cared about whether shops would all open on June 1st (as if Johnson could answer such a question in the first place). By asking a second question of lesser importance, Peston diminished the importance of his first, more pressing question.

Finally, and crucially, asking more than one question at a time massively increases the risk of ambiguous non-answers. Politicians are particularly fond of these, as the video below explains:

If you know that it’s likely that a politician (or a witness) will try to body-swerve your question, you want your audience to be clear about the question that went unanswered. Members of the public who take an interest in politics are generally intelligent enough to know when a politician is avoiding a question, and that will have an impact on whatever else is said by that politician.

Michael Howard has been haunted by that infamous Paxman interview for decades, because of the impact of his repeated refusal to answer, “Did you threaten to overrule him?” – a short, clear question.

(4:17 onwards)

I appreciate that the format of these press conferences means that it is impossible to ask the same question twelve times, but that only serves to underline how important it is to take your limited opportunity to ask a direct and clear question. If it goes unanswered, people are more likely to notice.

3. The Tone is Wrong

I’m sure Peston was delighted to see the Prime Minister and Professor Powis, but by starting his question by telling them that it was “good to see you both”, it sets the wrong tone for the question itself. The government briefing is a formal event – take it seriously.

Moreover, I love Latin as much as everyone else, but if you’re using it in a question something has gone terribly wrong.

By the way, prima facie is pronounced “pree-ma fack-ee-ay” if I’m being pedantic about it.

4. There’s Too Much Unnecessary Information

By this stage, everyone knew the story already. There was no need for Peston to reiterate “the agreed facts”. Combined with his impression of a lack of preparedness, this only served to bury the eventual question at the end of a load of a full minute of waffle. By that point, everybody’s switched off and the impact of your question is lost.

Here’s an example of how Peston could have asked the same (initial) question:

Prime Minister, if a member of the public has the same childcare concerns as Dominic Cummings, are they at liberty to travel 260 miles to be closer to their family?

I think that’s far more effective. It’s clear, it gets to the point and it’s in an appropriate tone.

So, to recap, I suggest that journalists and lawyers should have the following factors in common when asking effective questions:

1. Prepare your question(s).
2. Ask one question at a time (and prioritise accordingly).
3. Get your tone right.
4. Get to the point quickly.

Now, let’s watch this video of a member of the public asking a question at today’s press conference:

Good afternoon. Will the government review all penalty fines imposed on families travelling for childcare purposes during lockdown? Thanks.

Boom. Nice one Martin from Brighton.