Anne Graffam Walker and Julie Kenniston, authors
Sally Small Inada and Julie Kenniston, editors
Katherine Caldwell, JD, legal researcher
This is the third edition of the classic publication (the second edition was published 1999) on how to question children for forensic purposes. The update is essential because even though this material is in a constant state of flux, the latest edition represents the best thinking at this time. It is very important to understand how to talk to children because "[e]ven young children can tell us what they know if we ask them the right way."
The purpose of a trial is to "ascertain the truth" in order to "secure a just determination." For this to happen in cases involving children, children must be prepared to testify and adults must understand how to question them.
The premise of this book is that it is up to the lawyers and judges to prepare young children to be competent witnesses in court. The foundation of the book is to apply the science of linguistics to children's testimony. Linguistics is the study of language. In other words, it falls to lawyers and judges to put words into sentences that children can understand both inside and outside a court of law.
For a long time, children in our courts have been denied a right that should belong to everyone who enters the legal system: both to understand the language of the proceedings and to be understood.
The book primarily focuses on children 10 years of age and younger although the principles apply to all children as well as to adults with disabilities. The book begins by setting out some simple facts about children, i.e., children as young as two and three can recall and report past experiences accurately, and children as young as three have testified competently and credibly in court.
As children become more active participants in the court process, it is increasingly more important that lawyers and judges properly prepare them to be full participants in the system. In order to do so, they need to be properly questioned and understood. You do not have to be a linguistic scientist to question children in court, but you should be familiar with the science if your job requires you to talk to children. The purpose of this book is to educate lawyers and judges on how to do just that.
The book is broken down into a set of principles, then into problems to look out for in questioning, and things to look out for in children's answers. Next, it covers additional considerations such as cultural differences in dealing with children for whom English is a second language. Finally, it explores linguistic reasons as to why children's credibility may appear to be compromised by inconsistency. It concludes with the message that when practitioners utilize the knowledge that social scientists have developed through rigorous research in the laboratory and field, they can minimize the extreme difficulties in questioning children.
Although we now understand how to question children, we have not followed through in applying this knowledge in the courtroom. Lawyers as the primary questioners and judges as the "gatekeepers" bear responsibility for opening the courtroom to allow children to tell what they know.
The book ends with 11 excellent appendices. Some of you may initially read the introduction and go straight to the appendix (as I did). For example, Appendix A, "Checklist for Interviewing/Questioning Children," allows the lawyer to do field testing on their own clients or children.
For a number of years, I used the checklist from the second edition on this subject and kept a copy on the bench. I also advised lawyers who represented children and court-appointed special advocates (CASAs) to do the same. As valuable as the second edition was, the update is welcomed.
The strength of the book is that it distills the social science literature on this difficult task into a practical field manual for lawyers and judges. For example, how does a judge as the gatekeeper decide whether a child witness is competent to testify? The book breaks it down into a simple procedure: first establishing rapport, i.e., asking the child what he or she likes to do. If that doesn't work, asking what the child did from the time the child got up until the child came to court, then asking follow-up questions that are primarily open ended, and lastly simply asking, "Do you promise that you will tell the truth?"
No more is required, but for those of us from the old school who feel the need to ask the traditional truth/lie questions, the book suggests the following: using pictures to cover the subject and asking from the child's point of view whether a hypothetical child in the picture is telling a truth or lie. Asking from the judge's point of view whether the judge is telling the truth is ineffective because most children are reluctant to say that a judge is telling a lie even if it is obvious that the judge is doing so. This approach is preferable to the common procedure of asking the child whether or not the judge's robe is black or white and if they know the difference between the truth and a lie.
In sum, the duty to correctly frame the questions squarely rests upon the adult. The adult questioner has the duty to reduce inconsistencies in children's testimony. Otherwise, any exaggeration or inconsistency in the child's testimony casts a "dark shadow over the credibility of the child witness." Often, the fault is not in the lack of competency of the children but in the lack of competency of the adult questioners.
While the book is very well written, it is more dry and academic than I would have liked. At times it reads more like a social science research article interspersed with academic style citations. I would prefer to leave the citations to the references section. I suspect few lawyers and judges will have time to read the references.
I strongly recommend that all lawyers have a copy of this book on their desk and that all judges have a copy on the bench. It is only 139 pages, and at $30—it is a bargain.
Published by the ABA Center on Children and the Law, May 2013.
Keywords: litigation, children's rights, children's testimony, linguistics, book review, questioning youth