Asked and Answered: Questioning Children in the Courtroom

Abstract

In the present experiment, we analysed court transcripts in which children aged 5 to 13 years provided the key evidence in sexual abuse trials. We developed two separate coding schemes for lawyers' questions and children's responses. Consistent with past research, defence lawyers conducting cross-examination asked a higher proportion of complex, grammatically confusing, credibility-challenging, leading, and closed questions than prosecution lawyers. In responding to defence lawyers' questions, child witnesses rarely asked for clarification and often attempted to answer questions that were ambiguous or did not make sense. Furthermore, over 75% of children changed at least one aspect of their testimony during the cross-examination process. These findings have important implications for the way in which children are examined in court.

Complex questions asked by defense lawyers but not prosecutors predicts convictions in child abuse trials.

“…Based on previous findings, we predicted that the defense would use more complex and wordy questions in comparison to the prosecution (e.g., Davies & Seymour, 1998; Zajac et al, 2003). We also expected that more complex language would be related to an acquittal of the defendant as children would appear less credible by jury members when responding to complex questions.…”

Attorneys' Questions and Children's Productivity in Child Sexual Abuse Criminal Trials

“…When questioning a witness, defense attorneys attempt to establish an alternate story and/or discredit the prosecutors’ story, or discredit the witness’s believability or credibility. They do this, potentially quite often, via closed-ended and suggestive questions (see Zajac, Gross, & Hayne, 2003; Zajac et al, 2012, for a review), that is, questions that may not be conducive to enhancing productivity. Prosecutors, in contrast, are likely attempting to create a story for the jury about the chain of events that led to and followed the crime.…”

Advances in Psychology and Law

“…These feelings are likely even stronger in children. They regularly have diffi culty understanding questions phrased using legalese language (Carter, Bottoms, & Levine, 1996 ;Zajac, Gross, & Hayne, 2003 ;Zajac & Hayne, 2006 ). They are also unlikely to ask for clarifi cation (Waterman, Blades, & Spencer, 2001, and as a result may fail to respond or respond inaccurately, again compromising the fact-fi nding mission of the courts.…”

“…Lack of understanding of the criminal justice system is associated with increased levels of reported distress prior to testifying and to negative feelings about the legal system after testifying (Goodman et al, 1998 ), and lack of understanding of the dependency system is associated with more negative feelings following direct participation in dependency proceedings (Quas, Wallin, et al, 2009 ). In addition, when children fail to understand what is happening in a case and their role in the process, they may not accurately disclose information, for instance, because they are afraid of getting "in trouble" (Perry et al, 1995 ;Sas, 1993 ;Saywitz, Goodman, & Lyon, 2002 ;Saywitz, Nathanson, Snyder, & Lamphear, 1993 ;Zajac et al, 2003 ). Or, children may not trust their own attorney or not understand their attorney's role, making the attorney's job of protecting the child's best interest much more diffi cult.…”