The “Good Old Days” of Courtroom Questioning: Changes in the Format of Child Cross-Examination Questions Over 60 Years

Abstract

Recent decades have seen an explosion of research into children's eyewitness capabilities and resulted in legal reform to render the adversarial trial process more child friendly. Many, however, have been left with the feeling that the most intimidating legal process for child complainants-cross-examination-has not changed meaningfully despite its potential to distort children's evidence. To test this possibility, we compared the cross-examination questioning of Australian child sexual abuse complainants in the 1950s to that used in contemporary cases. We found that the format of cross-examination questions has remained largely consistent over time, with leading questions still making up the bulk of the questions asked. The changes that we did observe, however, are concerning. Cross-examination questions posed to contemporary child complainants were less likely to be open-ended and more likely to be complex, relative to those asked in the 1950s. Crucially, contemporary complainants were asked 3 times as many cross-examination questions as they were 60 years ago. These changes are likely to have detrimental effects on child complainants and their evidence and could reduce the ability of jurors to reach just outcomes in these cases.

Does implementation of reforms authorized in Section 28 of the Youth Justice and Criminal Evidence Act affect the complexity of the questions asked of young alleged victims in court?

“…Hanna et al () not only found that defense lawyers used more double negatives and questions with two or more subordinate clauses than prosecutors but they also found that prosecutors asked more questions containing passive voice than defense lawyers. Hanna et al (), Andrews and Lamb (), and Zajac et al () all showed that defense lawyers did not make accommodations for children's age whereas Zajac et al () reported that younger children were asked less complex questions than older children.…”

“…Despite this, child witnesses are commonly subjected to developmentally inappropriate questioning in and out of court that adversely affects the richness and accuracy of their responses (Andrews & Lamb, ; Carter, Bottoms, & Levine, ; Hanna, Davies, Crothers, & Henderson, ; Lamb et al, ; Zajac & Hayne, ). Not only are children frequently asked risky close‐ended and suggestive questions (Andrews & Lamb, ; Zajac, Westera, & Kaladelfos, ; see Table for definitions) that have been found to contaminate the information provided (Lamb, Orbach, Hershkowitz, Esplin, et al, ) and elicit self‐contradictions (Andrews & Lamb, ) but they are often also asked questions whose complexity exceeds their developmental capabilities (Andrews & Lamb, ; Hanna et al, ; Zajac, Gross, & Hayne, ). Accordingly, British lawyers have been instructed to adapt their questions to children's developmental abilities (Criminal Practice Directions, ) but when children are asked complex, close‐ended, and suggestive questions, they are unable to give their best evidence in court.…”

Assessing Children’s Credibility in Courtroom Investigations of Alleged Child Sexual Abuse: Suggestibility, Plausibility, and Consistency

“…Due to the frequency of delayed disclosure in CSA cases, lack of medical evidence to corroborate a child’s claims, and concerns about child suggestibility, enormous weight is then placed on the child’s report if the case reaches trial (Goodman & Bottoms, 1993). While other countries have adapted the testifying process to accommodate the unique needs of children (Pipe & Henaghan, 1996; Westcott, Davies, & Spencer, 1999; Zajac, Westera, & Kaladelfos, 2018), the United States has not. For example, New Zealand has reformed the testifying process for children, allowing them to testify via closed-circuit television (Hanna, Davies, Crothers, & Henderson, 2012).…”

An evaluation of the question types used by criminal justice professionals with complainants in child sexual assault trials

“…Little prior research has considered the degree to which lawyers tailor their questions to the developmental needs of the complainant. An Australian study analyzed sexual assault trial transcripts involving child complainants aged 6–17 years, revealing that defense lawyers exhibited some sensitivity to the age of the complainant in their questioning (Zajac et al, 2018). Defense asked younger children a higher proportion of cued-recall questions and a lower proportion of leading questions compared to older children.…”

“…Few studies have examined this question, and the findings that do exist are mixed. There is some evidence that younger children are asked fewer questions during cross-examination than older children (Zajac & Cannan, 2009), however, cross-examination even with young children is typically lengthy (the duration of cross-examination in Australian child sexual assault trials is much longer for all witnesses than it was a few decades ago; Zajac et al, 2018).…”