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Cross-examination of child witness

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.

Dangers involved in child’s testimony

The passage below from Heydon’s text Evidence: Cases & Materials (1984) reveals the dangers involved in the testimony of children:

  1. First, a child’s powers of observation and memory are less reliable than an adult’s.
  2. Secondly, children are prone to live in a make-believe world, so that they magnify incidents, which happen to them or invent them completely.
  3. Thirdly, they are also very egocentric, so that they quickly forget details seemingly unrelated to their own world.
  4. Fourthly, because of their immaturity they are very suggestible and can easily be influenced by adults and other children. One lying child may influence others to lie; anxious parents may take a child through a story again and again so that it becomes drilled in untruths. Most dangerously, a police officer taking a statement from a child may without ill will use leading questions so that the child tends to confuse what actually happened with the answer suggested implicitly by the question.
  5. A fifth danger is that children often have little notion of the duty to speak the truth, and they may fail to realize how important their evidence is in a case and how important it is for it to be accurate.
  6. Finally, children sometimes behave in a way evil beyond their years. They may consent to sexual offences against themselves and then deny consent. They may completely invent sexual offences. Some children know that the adult world regards such matters in a serious and peculiar way, and they enjoy investigating this mystery or revenging themselves by making false accusations.1)

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)

Preparing a child to testify

When preparing a child to testify, according to Kevin Lemieux, you should do all of the things one does with an adult witness:

  1. explain the rules of the courtroom;
  2. explain who gets to talk and when;
  3. advise him to tell the truth;
  4. let him know that it is OK to disagree, if someone is wrong;
  5. tell him what topics you will be asked about;
  6. tell him it’s OK to ask for a break;
  7. advise that the judge does not know what happened, so he needs to explain and tell the story.

Questioning children in court is very different

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.

Use of trouble-free language

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.

Open with simple questions

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:

  1. Make the child talk. You are a stranger and probably have never met the child or talked to the child. Find a topic that will allow the child to relax.
  2. Identify who the child is. Determine the physical abilities of the child. What is the educational level of the child? What is the child’s personality?
  3. Identify the child’s living environment; typical day of the child; type of housing for the child.
  4. Whom does the child depend on
  5. How many children or adults are in the home?
  6. Determine the origins of the child’s story.
  7. Identify stressors in child’s life.
  8. Watch for key phrases repeated in rote fashion by the child.

About the Author

author Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

Nerissa Keay: Advocacy Unit Legal Aid NSW
J Heydon – Evidence: Cases and Materials
Pacific Law Journal: Vol. 18

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