General Practice, Solo & Small Firm DivisionMagazine
BY J. THOMAS DALBYJ. Thomas Dalby, Ph.D., is a forensic psychologist and trial consultant in Calgary, Alberta, Canada. He is head of the Department of Psychology at Peter Lougheed Hospital and Adjunct Professor at the University of Calgary. He is the author of Applications of Psychology in the Law Practice: A Guide to Relevant Issues, Practices and Theories (ABA General Practice, Solo & Small Firm Division 1997). He can be reached by e-mail at thomas.dalby@CRHA-health.ab.ca.
© American Bar Association. All rights reserved.
The child witness presents challenges to the court, ranging from the physical (a child’s head may barely reach the microphone) to the metaphysical (the possibility that a child might lie and/or fantasize, intentionally or otherwise; the question of whether the child fully comprehends the difference between telling the truth and lying; and the issue of whether children can appreciate the nuances of such words and concepts in the same way as adults).
I remember one child witness, Rebecca—how she sat on the stool placed in the witness box. Her small legs did not reach the ground and had the tendency to swing, causing a "thump, thump, thump" to echo through the courtroom. With grandfatherly demeanor, the judge leaned over and asked her politely not to kick the podium. Looking perplexed, the six-year-old listened as the judge explained what would be happening in the courtroom and questioned her on what the truth was and how it would be a good thing that the truth be used by her. Then lawyers began examining Rebecca in a highly suggestive style (without interruption from the judge), but not before they each had complimented her on her pretty dress.
The use of children as witnesses in courts has risen during the last decade. Current estimates suggest that more than 200,000 children may be involved in the legal system in a given year. Children as young as two years old have been found competent as witnesses. This change in accepting child witnesses has been due largely to the exponential increases in child abuse notifications; but also, there has been legal loosening of restrictions on child witnesses in courtrooms. Some of this has come about because a large body of scientific research has dispelled the idea that children are highly unreliable in this role. Accompanying the legal acceptance of child witnesses has been a broadening of the types of cases in which they may be called to testify. They are no longer just "victim witnesses" but also witnesses to other crime, domestic complications, or personal injury cases.
Communicating that children are competent witnesses is vital because unless a judge, in particular, or a jury perceives a child witness to be credible, his appearance will have little impact on a trial. The judge’s perceptions are paramount, because even in a jury trial, she may limit the scope of the child’s testimony or give warnings to the jury on the dangers of accepting unreliable testimony from minors. Judges may alter the courtroom by having a screen from behind which the child testifies or by removing potentially influential adults from the courtroom.
Research shows that judges’ opinions about child witnesses vary. Despite Rule 601 of the Federal Rules of Evidence, which states "[e]very person is competent to be a witness," judges frequently presume incompetence below age five and presume competence at age 12 or 13. At 12 most juries and lawyers believe a child has capacity similar to adults in resisting suggestions and has comparable "believability." Therefore, for many children below 12 there will be some form of "test"—do they know what the truth is, can they promise to tell it, can they understand the consequences if they stray from the truth? Oaths or affirmations are rarely excluded with child witnesses, but in some states (for example, Florida), the court has the discretion to allow children to testify without an oath if they understand the duty to tell the truth or the duty not to lie. Administering an oath does not seem correlated with increases in memory accuracy in children at any age.
What are the basic elements of child testimony that have been found to have an influence on juries? Repeatedly, the child’s confidence and consistency in testimony are found to have a strong influence on jury members. Of course, these attributes have an uncertain association with accuracy of the witness. Studies with mock jurors have found that they have difficulty gauging children’s accuracy in their testimony. When there is no other evidence than that of a child witness, most juries are not prone to convict criminal defendants.
Questioning the Witness
Unfortunately, there is no list of standard questions that can be presented to children during the voir dire. Compounding this problem, voir dire generally calls for complex sentences and abstractions such as truth and perjury, which can be confusing to children. Many adults assume that children lie less than adults, and that their lies are easier to detect when they do mislead. Childhood is often seen as a time of fantasy and this idea may be introduced when a child’s testimony is challenged. Understandably, defense lawyers tend to be more skeptical of children’s evidence than prosecuting counsel.
In questioning children in the courtroom, first introduce yourself and reiterate the reason for your questions. Use reflective statements—rephrasing what the child has said to provide clarity and to organize the examination. Like all witnesses, there may be a reluctance to answer questions; the best way for the lawyer to handle this is to acknowledge those feelings in the child: "I know it is hard for you to talk about this. You are doing fine. Your answers are important to us." Tact in asking questions is paramount—the question should not imply criticism of the child in any way.
Lawyers must be seen to communicate effectively with child witnesses and children must be perceived to be comfortable and able to respond appropriately in the court setting. With adults, the use of complicated, compound, and complex sentences will often lead to a silent or confused witness. This is doubly so for the child witness. Repeated studies in this area show that as questions increase in complexity and legal specificity, children become less sure of their answers and less able to summarize the question. Many lawyers (watching too many TV courtroom scenes) make their arguments in a stilted and complicated way and tend to watch other lawyers do the same. "Lawyerese" con-fuses children and adolescents, as do questions framed in the negative or double negative, or that include difficult vocabulary.
The general rule of thumb in structuring questions for children is to speak like Hemingway wrote—simple, direct, and short sentences. ("Jim Gilmore came to Hortons Bay from Canada. He bought the blacksmith shop from old man Horton. Jim was short and dark with big mustaches and big hands. He was a good horseshoer and did not look much like a blacksmith even with his leather apron on." Up in Michigan). Old, short, dark, big, and good— not aged, diminutive, swarthy, immense, and proficient.
Hypothetical questions are very useful in clinical settings with children who are reluctant to talk. Unfortunately, there may be many objections or legal restrictions to framing questions as "Suppose that you...." The hypothetical, however, may be used to help a child’s recollection and at the same time reduce the distress the child has articulating his views—"Imagine you are a fly on the wall watching what is happening. Remember what happened before this. Now start at the beginning and tell us what happened and try not to leave anything out, even little things that you don’t think matter."
When you have called a child witness and she is being cross examined, be sure the child knows that it is acceptable to say that she doesn’t know. Make sure that the questioner asks one question at a time. Children will usually try to answer a question even if they don’t understand it, and are very reluctant to tell an adult that they failed to comprehend the question. They may become confused when a question is repeated—they wonder about the acceptability of their initial response. Counsel may also ask the judge to restrict opposing counsel to simple, concrete questions.
I have often seen lawyers take the effort to ask simple questions to extremes in the courtroom—mostly those who do not have the joy of living with children. They pitch their questions below the intellectual level of a child with pauses and inappropriate comments ("baby talk") that remind you of your own discomfort whenever your maiden aunt visited.
What about smiles or verbal encouragement—are these gestures appropriate when the lawyer is questioning a child witness? Contrary to lay predictions, when children are questioned in a warm, supportive environment, they are more likely to resist misleading suggestions than those who are questioned in an intimidating arena. Social support in this way decreases anxiety and increases self-confidence. Intimidation tactics from opposing counsel must be quashed at every turn, not because it is unpleasant for the child witness but because it subverts the task at hand—finding fact. Judges almost invariably will chastise counsel who decide on aggressive tactics with child witnesses.
It is important when questioning children to acknowledge their responses, such as saying "I see" or "I understand." Without this feedback, children often revert to brief "yes" or "no" responses. Children also need more time to respond to questions and most examiners pace their delivery of questions too rapidly for children. Although the pause between asking and answering a question may seem uncomfortably long, try waiting; an answer is usually forthcoming.
Perhaps you are only interested in eliciting very brief statements from the witness; a simple question-answer format may be what you need. The problem is that you will never be completely certain that the child understood your question. If you receive only "yes" or "no" answers and you want more elaboration, you may elect to address the problem directly. Tell the child that you would like him to tell as much as possible about the question. Modeling an example may help.
For example, if you desire better descriptions by child witnesses, show them how to give them. Assume you have a dog. You can describe him as "big and brown," but when we try to "see" him in our mind, we can’t. Describe him as a "German Shepherd named Max who comes up to your thigh (pointing) when he is standing beside you. He has a dark and light brown coat and a long curved tail. He has some white around his mouth because he is getting old. He can’t run very well now but still has a loud bark." Can you "see" him now?
To encourage a more complete narrative, interjections such as "then what happened" may be allowed. When having children describe situations that have happened to them on many occasions, it is preferable to say "how does it usually happen" (psychologists call this script memory) and then ask about a specific occurrence. Rather than tagging multiple incidents with numbers, as adults are prone to do, use geographical tags—the time it happened at school ("the school time"), the time it happened at the lake ("the lake time"), etc. (Inci-dentally, this technique is also helpful with cognitively limited adults.)
Children and Memory
Nearly all questions put to child witnesses rely on the integrity of the child’s memory processes. What do we know about children’s memory that can help us reliably use children as witnesses? Fortunately, this has been a much studied subject for psychologists. Most memory research in this area has looked at either free recall, where no cues are given to memory ("Tell me as much as possible about what you just heard, saw, etc."); or recognition memory, which is akin to multiple choice ("Which of these three objects was on the table in the picture").
On free recall, young children (particularly pre-schoolers) provide much less information than adults or older children. Their accounts are not necessarily less accurate; they just don’t recall as much information without prompts. Recall ability increases linearly with age. An interesting adjunct to this finding is that when children are recalling a situation or setting in which they are very familiar, their recall can be as good as an adult’s. To increase recall of past events, children may need more specific but nonleading prompts to help them remember (e.g., "Do you remember what color the car was?" versus "The car was red, wasn’t it?").
On tasks that require recognition memory, the difference in memory is not very significant along age lines. Young children have been shown to be able to recognize faces as well as adults (similar to a lineup identification). A caution is that in lineups in which the perpetrator does not appear as one of the choices, children give a response (false response) anyway, while adults do not. This lineup technique therefore should be avoided entirely with children. A consensus exists that when children understand events (and can therefore mentally organize them), their recollection will not necessarily be inferior to an adult’s. Better understanding of the events they witness or participate in often accounts for adults’ increased ability to recall the events.
Court Preparation Programs
Many jurisdictions now offer court preparation programs for children. These programs teach children about the court process and strive to reduce the trauma to children who appear to testify. While there has been some criticism that programs could provide further suggestions to witnesses, most have been designed and are implemented to strictly avoid this possibility and do not discuss the child’s individual case.
The courses provide basic information about the courtroom setting and the roles of various personnel. Relaxation exercises may also be part of the program. Often, a mock trial with a storybook character is shown to review the experience of testifying and cross-examination. An actual tour of a courtroom and perhaps a "graduation" ceremony may be included. Most program participants will appear to provide testimony on child physical or sexual abuse or domestic violence, but there is usually nothing to prevent other child witnesses from participating in these programs.
We know from research that a child’s performance in court is enhanced (more relaxed, more accurate) when he is educated about what to expect to see and what is expected of him. It is also possible to train children (in mock trials) to answer questions in such a setting and to be alert to misleading information.
One line of reasoning I have often seen in courtrooms as a way of discrediting child witnesses goes like this: "Childhood is a time of fantasy and imagination. Therefore, what children recall may be inadvertently from this set of memory banks rather than being based on reality." Psychological science has readily discarded this as myth. Children are as capable as adults of distinguishing between events that are real and those that are imagined.
Exactly like adults, however, children sometimes confuse the source of their memories (source misattribution). This is a common memory error—you recall things that happened to you when the real source is a third party who told you about the event. More malevolent errors in memory can occur in children under the intentional influence of others. Children are prone to suggestion, and young children are particularly susceptible to suggestions by authority figures. Again, adults are liable to these alterations as well. Both adults and children can be mislead into recalling as their own an experience that never happened. When a child is examined in a nonsuggestive manner, she is as capable as adults of giving accurate testimony.
Given that children are suggestible to authority figures, their testimony may be tainted by multiple pretrial interviews with police, social workers, parents, teachers, lawyers, and even judges. One estimate suggests that the average child witness in a sexual abuse investigation endures seven interviews, and double-digit interviews are not uncommon. Every interview has the potential to distort, alter, and construct "fact." This danger became abundantly clear as we waded through the McMartin Day Care child abuse scandal, one of the most expensive trial proceedings in U.S. legal history.
Unfortunately, mismanagement of child witnesses still exists on a smaller scale, and unethical, unprofessional interviewing continues. When children are witnesses, the best route to preserve integrity of information and reduce potential trauma to the child is to conduct a single, well-crafted, and comprehensive interview that is videotaped.
Why Do Children Lie?
The general principle that children do not lie about certain matters before the courts has been abandoned ("[T]hat the voice of heaven is speaking through the children." The Crucible). What are some reasons for their deception? Some children may have a mental disorder such as a Conduct Disorder (the frequent precursor of Antisocial Personality Disorder), where deceitfulness is a diagnostic criterion. Rates for this disorder in the general population ranges from 6 to 16 percent for males and 2 to 9 percent for females.
A child with Oppositional Defiant Disorder (2 to 16 percent of the population) may frequently lie for vindictive purposes. A mental disorder, however, is not necessary to engage in this motivated behavior. A child may lie to maintain continuity with a lie she told previously, not expecting ever to have to present the information in public. She may lie to help or assist someone (often a parent). She may interpret her lying as protection for that significant adult. She may have been instructed to lie by an adult.
Face to Face
Some consideration is given to the potential trauma that may face a child in court. In my experience, most children, especially younger children, are not especially nervous in court. They may be unfamiliar with the adult setting, but they are usually accompanied by a trusted adult. The exception to this rule is when children testify against someone whom they fear. The Supreme Court (accepting an amicus curiae prepared by the American Psychological Association) has concluded that where face-to-face confrontation between a child and an accused causes significant emotional distress in a child, this would disserve the goal of seeking the truth.
At least 34 states, by statute, allow judges to authorize child testimony via closed-circuit TV. There is evidence that this reduces anxiety in the witness and leads to decreased suggestibility, particularly in younger children. Prosecutors and the defense, however, both prefer to have a live witness. The use of closed-circuit procedures does not appear to diminish a jury’s abilities to gauge the accuracy of the child witness, but as already pointed out, juries are not particularly adept at this anyway. The possibility that the use of closed-circuit TV would bias jury members against an accused has not been found in the limited studies of this situation. This type of research is at an early stage and firm conclusions are difficult to carve out. CL