Child witnesses: Must-dos to best ensure reliable testimony

In everyday life when speaking to a child, most adults modify their language so the youngster can understand what they are saying. But that same approach often does not occur in the courtroom, say the authors of a recent article in The Judges’ Journal.

In “Ten Tips for How Judges Can More Effectively Communicate with Children in Court,” Judge Samuel A. Thumma of the Arizona Court of Appeals and his extern, Chloe Braddock, report on widespread communication errors involving youth in court proceedings and what you can do to minimize these mistakes.

“Even very young children are capable of accurately recalling events,” say Thumma and Braddock, citing research on the topic. But they say the failure to question young people appropriately, and the common use of complicated language by adults typically lead to incorrect or inadequate answers that undercut the truth-seeking process.

Communication problems happen more often than you think. The authors note that 1 in 4 (or more) questions posed to children is too complex, according to multiple studies. And of equal concern, at least one study indicates that youth will only ask for clarification or mention that they do not understand for just 1 percent of the questions they are asked.

To help bridge this communication gap, Thumma and Braddock share practical advice from a seminal resource on the topic, “Handbook on Questioning Children,” first published in 1994 by the ABA Center on Children in the Law, now in its third edition.

While Thumma and Braddock’s advice is targeted to judges, their guidance is relevant to all legal professionals working with children.

Among their 10 tips, here are five stand-outs:

1. Use simple words and syntax – Eschew acronyms and legal jargon, and avoid complicated, long and unfamiliar words. Thumma and Braddock say most young people will answer incorrectly before saying they do not understand a question.
   
   Simple sentence construction is vital, too. “What makes sentences simple, or complex, is not necessarily their length, but how long it takes the listener to process the sentence,” say the authors, noting that the key to an understandable sentence is to use just one subject and one verb and to keep that subject and verb next to each other.  “Minimizing processing time by keeping sentences simple and starting with the main idea will help a child understand the question and answer properly.”
2. Use positive, active language – “One study found that children’s answers are correct only 50 percent of the time when answering a question that used either single or double negatives, but are correct between 70 and 100 percent of the time when the question used positive language,” report Thumma and Braddock. As an example, consider how the latter question is more understandable than the former, even for adults: “Did it not hurt when you were hit by him?” versus “How did it feel when he hit you?”
   
   Moreover, avoid passive language, as studies suggest young children often ignore passive words and just process sentences by the order of the words. So, “he hit you” is easier to process than “you were hit by him.” And in the latter statement, if a child ignored the passive language, the child may hear the remark as, “you hit him,” likely leading to an incorrect response from the young person.
3. Think literally – To children, “each word has a very specific meaning and they may have a hard time thinking more broadly,” note Thumma and Braddock. They point out that children may learn that a question like “Are you okay?” is asking about how they are feeling – not if they are “okay” at what they are doing, or more generally, if they are an “okay” person.
   
   For a child, “a house may have a meaning that excludes an apartment; a car may have a meaning that excludes a truck; and touch may have a specific meaning that excludes a punch,” the authors say, advising those questioning young people to consider how a child might think.
4. Avoid pronouns – Pronouns can be very difficult for a child to track, say Thumma and Braddock. They cite one study that suggests that a full mastery of pronoun use may not come until middle school years or beyond. Use the name or the person or object to avoid confusion and add clarity, the authors suggest.
5. Frame questions – Consecutive questions and sudden shifts in topics can be jarring and may result in confusion for a child. Make clear the focus of your question and consider framing your set of questions with a title, Thumma and Braddock recommend.
   
   It can be as simple as, “Okay, we just talked about topic one; now we are going to talk about topic two.” Such framing may help a child focus on the individual topic at hand, which may help recall and allow for more reliable answers.

Despite your best effort to obtain more reliable testimony, some misunderstandings are inevitable, warn Thumma and Braddock. Asking more questions of your child witness may help. “A follow-up question may help confirm, clarify and correct an erroneous view of what prior testimony appeared to provide.”

For further detail on these tips as well as a full listing of all 10, download “Ten Tips for How Judges Can More Effectively Communicate with Children in Court.”

The Judges’ Journal is an award-winning quarterly publication of the ABA Judicial Division. As a member benefit of the division, the publication is designed to keep members current on issues affecting the courts and promote discussion about the direction of the judicial process. Explore membership with the Judicial Division.