December 01, 2013

Giving Children Instructions on Testifying

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.

Judges and attorneys often admonish child witnesses that they should not guess and that they should indicate when they don’t understand a question or they don’t know the answer. There are two problems with this approach:

  • First, unless the young child is given practice, the instruction will have no effect. 

  • Second, if the child is only given an example of when he or she should say “I don’t know” or “I don’t understand,” then he or she is likely to overuse the response. Fortunately, interview protocols now provide guidance that can also be utilized in court.

Instructing the child that it is o.k. to say “I don’t know.”

  1. If I ask you a question and you don’t know the answer, then just say, “I don’t know.” 

  2. So if I ask you “What is my dog’s name?” what do you say? 

  3. [If child says “I don’t know”] O.K., because you don’t know. [If child guesses] No, you don’t know what my dog’s name is. Let’s try another one: “What is my cat’s name?” [If child says “I don’t know] Good, because you don’t know my cat’s name.

  4. But what if I ask you “Do you have a dog?”

  5. O.K., because you do know.

Because the attorney doesn’t want the child to guess, it is important that the question in (2) be a question that doesn’t easily pull for a guess. Therefore, it’s important not to ask a yes/no question, or a question with limited possibilities. Because the attorney wants the child to know the answer to (4), it is important that this question be easy to answer, so a yes/no question or something simple is a good idea. And of course the attorney should substitute other pets (or family members) if he or she doesn’t have a dog or cat.


© Copyright May 2013, American Bar Association. For complete text of Appendix F, with citations, see Handbook on Questioning Children: A Linguistic Perspective, Anne Graffam Walker, Ph.D., 3rd Edition, May 2013. $30, PC 34900008, ISBN: 978-1-62722-203-7