Cross Examining Children: How Do We Properly Question Vulnerable Witnesses?
By Rachel Simpson
[Trigger warning: child sex abuse]
I Introduction
One of the big questions in psycho-legal research this past quarter century is how to obtain evidence from children and vulnerable people. Older scientific studies affirm what many might initially assume – children and vulnerable people get confused, concoct false memories, are susceptible to lying, and are overall not reliable witnesses.[1] However, more recent research suggests that the ability of children to provide evidence is actually not dissimilar to that of adults.[2]
The real problem, and the general reason why children and vulnerable people have been known to lie, is bad interviewing practices during cross examination. This is the process in which lawyers obtain extra evidence from a witness through questioning.[3] Court cases involving children and vulnerable people can be emotional, especially when they are the victims. The personal biases of lawyers, parents, jury, therapists and judges, while sometimes well meaning, can confuse vulnerable people and seriously contaminate evidence.[4] For a fair trial, we must question people so they understand what is asked of them, and so they can properly be heard.
A The New Zealand Example
The 1980s and early 1990s saw widespread moral panic about childcare workers being involved in Satanic ritual abuse against children. Court cases of this kind cropped up around the world – starting in the United States and then moving on to Canada, Brazil, various European countries and our very own New Zealand.[5] Peter Ellis was a childcare worker at Christchurch City Creche who served seven years in prison on sixteen counts of sexual offences involving children in his care. Last year, nineteen years after his release from prison and shortly after his death, the New Zealand Supreme Court agreed to hear Ellis’s case again. His lawyer, Rob Harrison, told the court the matter should proceed because it was a matter of public importance and addressed a systemic issue in the justice system.[6]
Auckland consultant cardiologist Mark Webster discovered that around 1995, just after Peter Ellis was convicted, court cases involving satanic ritual abuse disappeared as quickly as they had cropped up.[7] This was likely because new research began to suggest that the complainants’ interviews in many of the cases during this time were of a poor standard.[8] At the time of the Peter Ellis case, a forensic interview protocol had yet to be formalised in New Zealand.[9] Suggestive, leading and sometimes even coercive questions were used many times when talking to children, such as in the interview that led to the charge on which Ellis was convicted of sexual violation:[10]
Child: I want to go.
Interviewer: Yeah, just checking. Did any other parts of his body touch you? (Direct question.)
Child: No.
Interviewer: Okay.
Then shortly after, the interviewer introduced incriminating information themself in a highly leading and suggestive manner, to which the child merely agreed:
Interviewer: Mm. And [female name], [female name] touched your fanny once.
Child: Yeah. Can you … now can I go?
II Facets of poor questioning practices
A Suggestibility
Suggestibility is when a lawyer cross-examining a child asks leading questions such as “he did that, didn’t he?” or “you remember that, don’t you?”. Psychologists Brainerd and Reyna have discovered that these types of questions have the ability to implant false memories in children.[11]
The way this happens is psychological. Brainerd and Reyna have invented and popularised the “fuzzy-trace theory” which suggests that people store in their heads “verbatim” and “gist” representations or “traces” of things they experience. For example, if someone drinks a coca-cola at lunch, the “verbatim” trace is the surface features of the event - the shape, colour and texture of the coca-cola can. “Gist” traces are conceptual and vague – these are the senses, patterns, meanings and context of the event, like remembering how the coca-cola tasted and smelled, and remembering the act of buying a soda. We are less likely to forget our “gist” memories, but our “verbatim” memories are truer to the actual event. Children are actually no more likely than anyone else to conjure up false memories on their own, but they are more susceptible to the suggestion of false information, such as an interviewer asking misleading questions.[12] This is because the younger they are the less gist and verbatim memories they have available in storage.[13] In court, children are often asked about mature social concepts and, since they may not know a lot about these topics, might try to frantically string together the more lasting “gist” traces so they can give the interviewer an answer.
To illustrate my point about how suggestive questions push children into conjuring up false memories, here is another excerpt from the interview that eventually led to the charge against Peter Ellis:[14]
Interviewer: What’s that? [pubic hair]
Child: I don’t know, that black thing?
Interviewer: Yeah, what’s the black thing?
Child: I don’t know.
Interviewer: Okay.
Child: What is it?
Interviewer: Have you ever seen that before on a?
Child: No.
Interviewer: Near a *****?
Child: No. What is it?
Interviewer: What do you think it is?
Child: I don’t know.
Here, the interviewer brings up a mature concept which confuses the child, but repeatedly pushes the child to just answer the question with whatever knowledge they have.
In New Zealand, researcher Deirdre Brown has been trying to find the effects that suggestibility has on child testimony.[15] To do this, she set up a health examination on children aged five to fifteen and then asked them to recall what happened in the examination a few days later. Brown found that only 13% spontaneously came up with false memories to do with the event. However, when asked specific questions about the event, such as if they had been checked with a stethoscope even though they had not, 46% agreed that they had, with younger children being more likely to agree. While admittedly an innocuous health check is not sexual abuse, Brown says children are even less likely to spontaneously conjure up false memories about a significant event in their lives.[16]
B Lawyerly Malpractice and Legal Jargon
When asked if lawyers sometimes try to intentionally confuse children to get the answers that are most beneficial to their client, lawyer and child witness expert Dr Emily Henderson recalls some lawyers admitting exactly that to her.[17] Henderson’s research has shown that lawyers who want a certain answer from a child know to maximise the use of closed and leading questions during cross-examination.[18] Even though these sorts of questions are the status quo in the law profession, when used for children and vulnerable people these practices are suggestive, evidentially unsafe, and seem to violate all principles of best practice.[19]
Alongside the suggestive questioning style already mentioned, lawyers also employ the use of legal jargon. Children well into their mid-teens can have trouble understanding sentence features such as passive voice, double negatives and idioms, and even adults can be forgiven for not understanding court and trial processes. Sometimes, lawyers genuinely do not realise how difficult their questions are.[20] However, some questions involve so much jargon that the negligence as to what children might understand begins to look wilful. Here is an excerpt from a lawyer’s cross-examination with a sixteen-year-old witness in 2008.[21]
Defence: You see, that argument about harbouring, especially if it was made the day before, it would seem before anything happened, doesn’t really hold water, does it?
Child: Pardon?
Defence: That argument about keeping you because of a fear of being charged for harbouring, doesn’t hold water if it was a concern raised a whole day earlier, does it?
Child: I don’t know what you mean.
In the highly competitive law profession, lawyers may not intend to collect incorrect evidence from children but may do so ignorantly in the interests of winning a case. Manipulating the witness is in many ways the direct goal of cross examination. This is exemplified in Salhany’s text “Cross-Examination: The Art of the Advocate” which is a 1980s handbook for lawyers on how to be a successful cross-examiner:[22]
“Children usually want to please adults. If you take the time to frame questions carefully, they will be very helpful to you… A child will probably answer ‘‘yes’’ to a question that suggests a yes answer and ‘‘no’’ to one that suggests a no answer.”
This excerpt shows that lawyers tend to regard cross-examination as an extension of their persuasive function. This makes adjustment difficult – how can we go against the very nature of the adversarial system?
III Solutions
The overall solution, according to Dr Emily Henderson, is that everyone involved in the questioning of children at every stage of the court trial must remain professional. “That is a matter of training, supervision and monitoring. The idea is that people with fairly serious professional training are accredited, and so far, we are maintaining quality.”[23]. We know children generally want to tell the truth, and are not fundamentally irrational. It is also very unlikely that children have the requisite knowledge to repeat a story that is coached to them by adults.[24] Therefore, it is important that children are given the opportunity to tell the truth, and this can be achieved by treating them in the most professional and understanding manner possible.
A Better Questioning Practices
Open ended, free recall questioning practices such as “tell me more about X” are proven to be the best way to get a truthful response from children.[25] “Don’t know” and “don’t understand” replies may be common when using this question format, but this should be followed up with feedback, invitations and rapport building rather than pressing on with the questions. This makes children more comfortable and increases their productivity.[26]
Making sure questioning is done appropriately is a matter of proper training. In New Zealand, the Family Court and Youth Court accredits Lawyer for Child appointees with special vulnerable witness training. However, the law profession is likely to resist defence counsel accreditation on the basis that defendants should have a choice of counsel.[27] Henderson and Hanna suggest that vulnerable witness training should be a requisite for advancement in Crown Law and the Public Defence Service.[28]
B Intermediaries
Intermediaries, who are rigorously trained communication assistants, are another way to ensure proper questioning practices are followed. It is understandable that lawyers may have little experience with children, or people with a certain disability. Intermediaries can be called in on evidence-based, clinical-based grounds to translate questions into a form the witness will understand.[29] As long as the courts are consistent with this practice, it can be very effective, especially for people with disabilities who have trouble achieving narrative coherence.[30] In the case R v Hetherington which involved sexual abuse against a girl with down syndrome, the judge acknowledged the highly accredited communication assistant was essential to ensuring a fair trial took place.[31]
C Improved Courthouse Facilities
It should be mentioned that it is not always the questioning that makes children uncomfortable. Sometimes it is the waiting times, the confusing and hostile court environment, and having to attend a trial where the accused is present. Better waiting rooms, increased access to necessary facilities and the availability of a pre-recorded CCTV cross-examination may help remedy this.[32]
D Judge-Led Reform
The Judge remaining neutral and letting the lawyers be heard during cross-examination is in the interests of a fair trial in an adversarial court. However, in cases involving vulnerable people it can be ironic for the judge to do nothing in an attempt to pursue “neutrality” when the lawyer is very obviously and egregiously not being neutral. England and Wales are at the forefront of judge-led reform, with courts in those countries having a select pool of judges with specialist training in complex child abuse.[33] These judges are able to interject when aggressive questioning is occurring.
New Zealand has made a step in the right direction by introducing section 85 of the Evidence Act, which allows the Judge to disallow questions they consider “improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.”[34] Other countries have taken this a step further by ensuring Judges have a duty to disallow these types of questions.[35] However, perhaps the Evidence Act shows that the New Zealand Parliament has intentions to do more for vulnerable witnesses.
IV Conclusion
Whether bad questioning practices towards children and vulnerable people come from ignorance or malice, the solutions I have outlined are all-encompassing. Some might say it is the very nature of the adversarial system to give lawyers the freedom to ask whatever questions they feel are necessary in court. However, the right to a fair trial is so deep in our common law that Parliament can practically never explicitly undo it. Since we have the science and research to prove trials can be made fairer for the most vulnerable people, it certainly should be our duty to apply it where possible.
The author wishes to thank Dr Emily Henderson for her very helpful direction on this article.
The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.
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[1] C J Brainerd and V F Reyna “Reliability of Children’s Testimony in an Era of Developmental Reversals” (2012) 32 Developmental Review 224 at 224
[2] Emily Henderson “Psychological Research and Lawyer’s Perceptions of Child Witnesses in Sexual Abuse Trials” in David Carson and Ray Bull (ed) Handbook of Psychology in Legal Contexts (John Wiley & Sons Ltd, West Sussex, 2003) 493 at 493.
[3] Oxford University Press “cross-examine, v.” (September 2020) Oxford English Dictionary Online <www.oed.com/view/Entry/44865>.
[4] Donna Chisholm “Child Testimony: Could the Peter Ellis case happen again?” The New Zealand Listener (New Zealand, 21 September 2019).
[5] Above n 4.
[6] Melissa Nightingale, “Peter Ellis Supreme Court hearing into Christchurch creche case begins today” The New Zealand Herald (New Zealand, 14 November 2019).
[7] Above n 4.
[8] Jonathon Harper “Failure by a Distinct Margin (Examination of the Child Interviews in Peter Ellis’ Child Sexual Abuse Case)” (2008) NZLG 39 at 39.
[9] Above n 8 at 42.
[10] Above n 8 at 42. Note that this is not a cross-examination by a lawyer, but nevertheless illustrates my point about leading questioning practices. This questioning was done by psychologist Sue Sidey, who at the time held no formal qualifications in child psychology.
[11] Above n 1 at 226.
[12] C J Brainerd and V F Reyna “Fuzzy Trace Theory and Memory Development” (2004) 24 Developmental Review 398 at 410 .
[13] Above n 1 at 229.
[14] Above n 8 at 43.
[15] Donna Chisholm “The Kiwi researcher trying to improve the reliability of child testimony” The New Zealand Listener (New Zealand, 21 September 2019).
[16] Above n 16.
[17] Email from Emily Henderson (lawyer, expert on child witnesses and Labour party candidate) to Rachel Simpson (author) regarding child witnesses (2 October 2020).
[18] Kirsten Hanna and others “Questioning Child Witnesses: Exploring the Benefits and Risks of Intermediary Models in New Zealand” 20 Psychiatry, Psychology and Law 527 at 528.
[19] Emily Henderson “Persuading and Controlling: The Theory of Cross-Examination in Relation to Children” in Helen Westcott, Graham Davies and Ray Bull (ed) Chilren’s Testimony: A Handbook of Psychological Research and Forensic Practice (John Wiley & Sons Ltd., West Sussex, 2002) 280 at 280.
[20] Kirsten Hanna and Emily Henderson Child witnesses in the NZ criminal courts: Issues, responses, opportunities (Chief Victims Advisor to Government, 2017) at 11.
[21] Above n 21 at 11.
[22] Roger E Salhany Cross Examination: The Art of the Advocate (3rd ed, LexisNexus, Ontario, 2006).
[23] Email from Emily Henderson (lawyer, expert on child witnesses and Labour party candidate) to Rachel Simpson (author) regarding child witnesses (2 October 2020).
[24] Above n 2 at 499.
[25] Elizabeth C Ahern, Stacia N Stolzenberg and Thomas D Lyon "Do Prosecutors Use Interview Instructions or Build Rapport with Child Witnesses" (2015) 33 Behavioral Sciences & the Law 476 at 488.
[26] Above n 26 at 476.
[27] Law Commission The justice response to victims of sexual violence: Criminal trials and alternative processes (NZLC R136, 2015) at 104.
[28] Above n 21 at 38.
[29] Above n 21 at 41.
[30] Haylie L Miller, Timothy N Odegard and Greg Allen “Evaluating information processing in Autism Spectrum Disorder: The case for Fuzzy Trace Theory” (2014) 34 Developmental Review 44 at 54.
[31] R v Hetherington [2015] NZCA 248 at [22].
[32] Above n 21 at 42.
[33] “Complex sex abuse cases to be heard by select judges” BBC News (online ed, United Kingdom, 7 August 2013).
[34] Evidence Act 2006, s 85(1).
[35] Above n 21 at 29.