Pragmatic failure and referential ambiguity when attorneys ask child witnesses “do you know/remember” questions.

Abstract

“Do you know” and “Do you remember” (DYK/R) questions explicitly ask whether one knows or remembers some information while implicitly asking for that information. This study examined how 104 4- to 9-year-old children testifying in child sexual abuse cases responded to DYK/R wh- and yes/no questions. When asked DYK/R questions containing an implicit wh- question requesting information, children often provided unelaborated “Yes” responses. Attorneys’ follow-up questions suggested that children usually misunderstood the pragmatics of the questions. When DYK/R questions contained an implicit yes/no question, unelaborated “Yes” or “No” responses could be responding to the explicit or the implicit questions resulting in referentially ambiguous responses. Children often provided referentially ambiguous responses and attorneys usually failed to disambiguate children’s answers. Although pragmatic failure following DYK/R wh- questions decreased with age, the likelihood of referential ambiguity following DYK/R yes/no questions did not. The results highlight the risks of serious miscommunications caused by pragmatic misunderstanding and referential ambiguity when children testify.

Linguistically complex recognition prompts in pre‐recorded cross‐examinations

“…However, Section 28 lawyers still predominantly asked recognition questions (i.e., prompts that are either closed‐ended or signal the desired response, such as option‐posing and suggestive prompts; Henderson et al., 2019a), and used proportionally more option‐posing prompts than their non‐Section 28 counterparts (Henderson et al., 2019a). This is problematic because researchers have identified “linguistically complex” (or “complex”) structures within recognition prompts [i.e., tagged, declaratives, “Do you remember” (DYR), and negative terms; see Table 1 for definitions and examples] that decrease children's comprehension and erode young witnesses' accuracy and productivity (Evans, Stolzenberg, & Lyon, 2017; Klemfuss, Quas, & Lyon, 2014). Thus, the current study evaluated whether Section 28 recognition prompts, and particularly prompts with suggestive content, were less linguistically complex than non‐Section 28 prompts, thereby improving the quality of questioning and, subsequently, the elicited testimony.…”

“…“Do you remember” questions, which explicitly ask whether an individual remembers information whilst implicitly requesting the information (Evans et al., 2017) are also complex. For example, an unelaborated yes or no answer to “Do you remember if your mom went to the store?” could be responding to either the explicit (“Do you remember if she went to the store?“) or implicit (“Did she go to the store?“) part of the question, resulting in an ambiguous response (Evans et al., 2017). A lawyer may interpret an unelaborated “no” response to mean that the mother did not go to the store, when in fact the child was responding that they did not remember, thereby introducing false information into the child's testimony.…”

“…A lawyer may interpret an unelaborated “no” response to mean that the mother did not go to the store, when in fact the child was responding that they did not remember, thereby introducing false information into the child's testimony. Defense lawyers' DYR prompts are more complex than other prompts (Henderson & Lamb, 2019) but they are commonly asked in court (Stolzenberg et al., 2020) and children frequently respond to them incorrectly (Evans et al., 2017) or non‐substantively (Stolzenberg et al., 2020). Additionally, lawyers often fail to disambiguate children's responses to DYR prompts (Evans et al., 2017), which results in the misinterpretation of their responses and perhaps a decline in their perceived credibility.…”

“…Defense lawyers' DYR prompts are more complex than other prompts (Henderson & Lamb, 2019) but they are commonly asked in court (Stolzenberg et al., 2020) and children frequently respond to them incorrectly (Evans et al., 2017) or non‐substantively (Stolzenberg et al., 2020). Additionally, lawyers often fail to disambiguate children's responses to DYR prompts (Evans et al., 2017), which results in the misinterpretation of their responses and perhaps a decline in their perceived credibility. As a result, guidelines recommend that British lawyers avoid using DYR questions when examining vulnerable children (Inns of the Court College of Advocacy, 2017).…”

The difficulty of teaching adults to recognize referential ambiguity in children's testimony: The influence of explicit instruction and sample questions

“…), as these questions explicitly ask if/whether the child knows the information, and at the same time implicitly request that information. Past observational and experimental research (Evans et al, 2014, 2017) has found that children often provide unelaborated “yes” or “no” responses to DYK/R if/whether questions, creating a problem of referential ambiguity, as it is unclear whether the child is answering the explicit or implicit part of the question. For example, an unelaborated “no” response to a DYK/R if/whether question could be answering the explicit question (e.g., No, I do not remember) or the implicit question (e.g., No, it wasn't blue).…”