The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
"Children in our courts today are being denied a right that should belong to everyone who enters the legal system: to have an equal opportunity not only to understand the language of the proceedings, but to be understood. This is a situation that puts not just children, but all those who stand both with and against the child, in jeopardy.”
Anne Graffam Walker wrote those words over 20 years ago in the first edition of her Handbook on Questioning Children, published by the ABA Center on Children and the Law. She wrote for lawyers and judges but she wanted anybody who worked with children to pay attention and use the linguistic principles that supported her work.
To mark the third edition of the Handbook, CLP will be excerpting portions of her book over the next year. We have too many children appearing in our courts, foster care, and child protection systems: abused, neglected, delinquent, disabled and immigrants. These words are as true now as when they were first written:
“Even very young children can tell us what they know if we ask them the right questions in the right way.”
“You will probably not be questioning children as young as two and three very often. But as children enter our court system in ever-increasing numbers, you will be seeing more and more preschool children, more school-age children, and more adolescents. This work focuses primarily on the under-10 group.
What follows is a thumbnail sketch of a few characteristics of the preschool-aged group. Characteristics of school-aged children and adolescents will be shared in future columns. As you read through them, keep in mind that they have been chosen not to represent weaknesses in children’s ability to process adult language, but to point the way to the kind of questioning that will build on children’s strengths in telling us what we need to know.
- Use and interpret language very literally. A typical example: Asked if she could “read” an eye chart, the child responded, “No! It doesn’t make words.”
- Do not handle abstractions well. Preschoolers are particularly ill-equipped to discuss with you the difference between truth and lies. They do better with concrete examples that ask them to demonstrate rather than articulate their awareness of these two very abstract concepts.
- Aren’t good at collecting things into adult-like categories. This can make it hard for them to respond to questions that ask them if “anything like this” happened before.
- Use words for time, distance, kinship, size and so on, long before they understand their meaning.
- Define words only in the simplest, action-oriented ways. A “mother” may be, “She takes care of me.”
- Have difficulty with pronoun reference. Keeping track of your “he’s,” “we’s,” “they’s,” “that’s,” and whatever it is that these pronouns refer to is not something they are good at.
- Have difficulty with negatives. Even simple negatives like “Didn’t you see the car?” may confuse them. “Did you not see the car?” is sure to.
- May supply a response to questions even if they have no knowledge. One reason for that is that in English, questions and answers form an indivisible pair. Answers don’t happen without a question first. And if a question is left unanswered, something is perceived to be wrong. Most children learn that very early.
- The answer children supply is often (but not always) “Yes” for a number of reasons. One, in this society, it is a valued answer which indicates cooperation. Two, it is often perceived to be the one that the adult wants, particularly in response to a tag question in which the tag is negative (e.g., “You like it, don’t you?”). And three, presented with a short restricted choice question (“Was it red or blue?”), children may respond to the form of the question, and simply reply “Yes,” rather than explicitly picking one option or rejecting both.
- Do best with simple sentences of subject, verb, object. No frills.
- Tend to focus on only one aspect of a situation or question at a time. Asking complicated questions that contain numbers of ideas is fruitless.
- Don’t organize events in their minds in an adult way. They often leave out settings, descriptions, chronology, motivations, and emotions in the telling of some past event.
- Are still in the process of acquiring language. Don’t be fooled by a child who sounds mature. But don’t dismiss as incompetent one who doesn’t seem to follow your questions. Chances are, it’s the language of the question that’s the problem.
- Usually don’t know or won’t tell you that they don’t understand something. So asking them, “Do you understand?” is probably a waste of breath.
- Believe in general that adults speak the truth, are sincere, and would not trick them.
The next excerpt will focus on the characteristics of school-age children, age roughly 7-10. Can’t wait for the excerpt? Buy the Handbook on Questioning Children, 3rd ed. (Product Code: 3490008). $30