Questioning Child Witnesses in New Zealand's Criminal Justice System: Is Cross-Examination Fair?

Abstract

The way in which children are questioned in forensic contexts can impact on the accuracy of their responses. Past studies have shown that children were often questioned in the New Zealand courts in ways that profoundly contradict best practice. This study analyses the questions posed to 18 child witnesses by forensic interviewers, prosecutors, and defence lawyers during criminal trials held in New Zealand courts in 2008. The results suggest that, as was found in earlier studies, many of the questions posed to children during cross-examination in particular were inconsistent with best practice in terms of eliciting full and accurate information from children. Indeed, the heavy reliance on closed, leading and complex questions, along with other common practices, casts doubt on the forensic safety of cross-examination, calling into question its fairness for children. The implications of these results for policy and practice are explored.

How attorneys question children about the dynamics of sexual abuse and disclosure in criminal trials.

“…Indeed, this may explain why prosecutors never asked teenagers if they were telling the truth; a teenager’s denial would likely carry little weight. Overt accusations of coaching and lying may be more common in other countries in which defense attorneys are expected to confront witnesses with their claims directly during examination (Hanna et al, 2012). …”

‘Where were your clothes?’ Eliciting descriptions of clothing placement from children alleging sexual abuse in criminal trials and forensic interviews

“…In part, this can be attributed to the fact that forensic interviewers asked a higher proportion of wh‐ questions than attorneys (52% vs. 9%). This is consistent with other research finding that forensic interviewers ask more open‐ended questions than attorneys (Hanna et al ., ).…”

“…For example, Hanna et al . (), who analysed courtroom transcripts in New Zealand from 2008, noted that their results were similar to those reported by Davies and Seymour (), who examined transcripts from cases tried in 1994. Nevertheless, it would be important for future research to examine a more recent sample of trials to determine whether questioning practices have improved over the years.…”

“…Unfortunately, the Court did not report how the child was asked about clothing. Research examining how children are questioned about sexual abuse in court has shown that yes/no questions predominate (Andrews, Lamb, & Lyon, ; Hanna, Davies, Crothers, & Henderson, ; Klemfuss, Quas, & Lyon, ; Stolzenberg & Lyon, ). Hence, it is likely that the child in Emmett was asked yes/no questions about his and the defendant's clothing placement (e.g., ‘Were your/his clothes on?’ or ‘Were your/his clothes off’?…”

Preparing children for cross-examination: do the practice questions matter?

“…If children who complete our preparation intervention do acquire sufficiently deep learning to foster transfer, this would have important implications given that lawyers use a wide variety of methods to discredit a witness during cross-examination (Davies & Seymour, 1998;Hanna et al, 2011;Zajac & Cannan, 2009). In practice, it would never be possible to prepare children for every type of question they might encounter.…”