Children find the sight of the courtroom intimidating and, because of respect for the judge, may be impressed by factors, which do not relate to the question being asked. Their ability to understand the complex and formal styles of questioning typically used by advocates may be limited. Apart from socio-demographic characteristics, situational circumstances, such as previous encounters with authority figures, may also render certain individuals vulnerable during the cross-examination process.
The passage below from Heydon’s text Evidence: Cases & Materials (1984) reveals the dangers involved in the testimony of children:
The reasons for children’s evidence being considered inherently ‘suspect’ have been put on the basis that children have less reliable powers of observation and memory, are prone to live in a make-believe world, are egocentric and forget details unrelated to themselves, are suggestible and have little notion of the duty to speak the truth.2)
When preparing a child to testify, according to Kevin Lemieux, you should do all of the things one does with an adult witness:
Questioning children in court is very different from questioning them in a family context. Considerable skill is required when adapting questions for children in court. Advance preparation and flexibility during cross-examination is required. Planning questions by topic and being clear about topic changes help the child to make sense of the process and give them transition time to focus on the next subject.
Children do not use, process or understand language in the same way as adults. Use of clear and simple everyday words, which a child of the appropriate age would be accustomed to, would help the child’s understanding. It is much easier for a child to understand your question, if you use consistent terms throughout.
In order to make sense of children within the legal system, it is necessary to develop an approach to them that will be fair to children while at the same time will protect the rights of the accused, and lead to a successful method of obtaining accurate information. In order to achieve all these outcomes, any approach will have to be holistic in nature. It will have to view the process of testifying from all perspectives, ranging from the child’s cognitive ability to the way court personnel behave in the courtroom.
Once the child is safely on the stand and under oath, the examiner should open the direct examination with simple questions designed to place the child at ease. For example, counsel might begin by asking a series of questions, which the child can answer easily, and without embarrassment. The success of getting the right answers and doing a good job in response to the attorney’s questions gives the child self-confidence. Questions must be phrased in language the child understands. Use of legal terminology and other big words should be avoided. This is not to say that the examiner resorts to childlike language. Rather, a conscious effort is made to propound questions in language that is familiar to the child.3)
The cross of the child, according to Schneider & McKinney, like any other witness, should have a beginning, a middle and a strong ending. Based on your investigation, preparation, and defence, an outline of your cross can include the following:
Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.