Children and Cross-Examination: Time to Change the Rules?

Children and Cross-Examination: Time to Change the Rules?

Editors: John R. Spencer and Michael E. Lamb
Publisher: Oxford, UK: Hart Publishing, 2012.  314p.
Reviewers: Amelia Hritz and Stephen Ceci | March 2013

In England in 2009 a four-and-a-half year old girl was cross-examined about being raped a year earlier (R. v. Barker). Although she appeared to recant her testimony-in-chief during cross-examination, the conviction of Stephen Barker based on her testimony was upheld by the Court of Appeal, a result of the court’s awareness of the difficulties young children face during cross-examination. This conviction led to renewed attention to the problems inherent when young children testify in court.

Children and Cross-Examination: Time to Change the Rules? is a collection of essays from a conference held in Cambridge, England, in 2011 designed to rethink how child witnesses are treated in courtrooms. Contributors include lawyers, psychologists, and judges from around the world. The book begins with a discussion of the history of how child witnesses have been handled in courtrooms in England, and recommendations for reform that were outlined in the Pigot Report in 1989. The rest of the essays discuss the problems with cross-examination of children and the strengths and weaknesses of how other countries have handled this issue (including some implementation of aspects of the Pigot Report).  

In 1989, an advisory group to the U.K. Home Office (the British ministerial agency dealing with law and order among other charges) released the Pigot Report, which recommended that for cases involving violent and sexual offenses, all of the child’s evidence should be taken before the trial. Pigot recommended that video-recorded interviews of children under the age of 14 should be admissible as evidence and the child should not be required to appear in open court.  In addition, the Pigot report agreed that cross-examination is necessary, but concluded that changes need to be made in the interest of justice. With the passage of section 28 of the Youth Justice and Criminal Evidence Act of 1999 in England, only half of the Pigot report was adopted. Two important recommendations have still not been adopted, including that children’s testimony should be taken rapidly and should not be taken in a way that would intimidate or overwhelm them. In setting the context for the volume, the editors lament the failure to adopt all of the Pigot Report’s recommendations.

Until the last 25 years, it was very difficult for children to testify in criminal court in England because they were thought of as not being competent to understand the importance of telling the truth on the stand. Moreover, another person could not testify about what the child had told them except under limited exceptions to the hearsay rule (e.g., excited utterances, unavailability).

Now, as a result of the 1999 Youth Justice and Criminal Evidence Act, people of all ages are deemed competent to give evidence as long as they can understand the questions being asked and give understandable answers. Children and Cross-Examination presents a number of chapters that argue that even though children may be competent to give evidence in court, they should not be treated as adults in court. Adversarial cross-examination is distressing for adults, and even more so for children. One cause of distress is the delay between the event and trial, which prevents witnesses from being able to get on with their lives because they are forced to relive it at trial. An even more significant source of distress is the adversarial nature of cross-examination. Even adults wither in the face of a torrent of questions, statements, and insinuations aimed at discrediting their testimony. Imagine the anxiety this causes a young child who lacks the cognitive and emotional resources to buffer such a verbal onslaught. As Emily Henderson remarks in her chapter:

Cross-examination is not an interview to elicit facts. . . . It is an opportunity to present the case to the fact-finders both by persuading the witness to make certain responses and by blatant rhetoric. Convention states that obfuscation, obstruction, and suggestion are all legitimate, indeed integral, aspects of cross-examination. This is why all the techniques researchers revile appear so prominently in advocacy handbooks for young lawyers. (p. 57)

As well as being distressing to children, adversarial cross-examination may not produce useful testimony. If the witness is unable to speak at trial, for example, if he or she is too frightened and there is no other substantial evidence, the charges against the defendant will be dropped. When the child is able to speak, he or she can often engage in only a rudimentary exchange and the defense cannot really test the child’s memory.  In addition, questions are often worded in developmentally inappropriate ways, which can confuse children and cause them to give inaccurate responses.

The most fascinating part of Children and Cross-Examination is the thorough discussion of the attempts to deal with these problems in criminal justice systems in other countries, including both common law and inquisitorial systems. Attempts to address children’s distress and confusion caused by cross-examination include having the courtroom cleared, shielding child witnesses from defendants by screens or allowing children to testify via a live TV link. One concern with these methods is the impact on the jury’s impression of the child. Since these methods are meant to lessen the distress the child feels testifying, the jury may not see how much the child has been affected by the crime and therefore may not be as likely to convict the defendant. Research has shown, however, that these methods do not appear to affect trial outcomes.

Another recurrent problem is delay between the incident and the date of testimony in court. Some countries, including England, Wales and New Zealand have attempted to reduce these delays by giving special priority to cases involving child witnesses. Other countries, including Israel and (Western) Australia, have avoided the impact of delays by pre-recording children’s testimonies before trial, including the cross-examination.

Western Australia drew on the Pigot Report in its legislation, which recommended pre-recording children’s evidence or using a live TV-link so children do not have to be in the courtroom when they testify.  Benefits of pre-recording evidence include better quality of memory, reduced stress on witnesses, and avoiding waiting in the courthouse for their turn to testify during trial. There are also guidelines for appropriate questions that can be posed to children. The judge must enforce these guidelines. Disadvantages that Western Australia has encountered include increased use of court resources and judicial time.

These protective methods do not address the developmentally inappropriate or suggestive questioning posed during cross-examinations. Numerous examples are provided of linguistically inappropriate questioning of young children.  For example, in one nonrandom analysis of sixteen children’s testimony, it was found that fully 84% of questions were of the type associated with high error rates (closed or suggestive questions) rather than the safer open questions.  One effort made to address this issue is to educate lawyers and judges about developmentally appropriate cross-examination. Research has shown, however, that this education has little effect on behavior. Another method for addressing developmentally inappropriate questioning is the use of intermediaries. The intermediaries are used differently in different systems. For example, in the United States, intermediaries merely repeat questions verbatim. While this may be less stressful for the child, it does not address the language issue. In other countries, such as South Africa, the intermediary can translate the question into developmentally appropriate language, or the judge can request the counsel to rephrase questions.

In New Zealand, Parliament passed the Evidence Amendment Act in 1989, which went even further than the recommendations of the Pigot report. The Act allowed for alternative methods of testifying in sexual cases for children under the age of 17, including pre-recording the forensic interview and giving cross-examination via a live TV-link. Children’s entire testimony can also be pre-recorded outside the courthouse with counsel and a judge in attendance.  In addition all questions may be given through an intermediary who repeats the questions to the child. An expert witness may testify to what extent the child’s behavior is consistent with having been sexually abused. Many of these reforms have not been implemented and intermediaries are rarely used. Child witnesses’ testimonies are most often pre-recorded but they must appear at trial to be cross-examined via live link or screens. Reforms may not have been implemented because of lack of training and resources.

In Continental Europe, Austria and Norway do not use adversarial examination. Instead a judge interviews the witnesses and the prosecution and defense are allowed to put supplementary questions afterward. A benefit of this system is that children were examined ahead of trial in private. In the past, defendants could not put forth questions, but this was found to violate Article 6(3)(d) of the European Convention on Human Rights and now defendants are given this opportunity.

Children and Cross-Examination concludes with recommendations for changes to the English system based on the Pigot report and methods that have succeeded in other criminal justice systems. One recommendation is pre-taping interviews and cross-examinations with children before trial and allowing for the possibility of a further cross-examination to explore issues of credibility. Another set of recommendations includes limits to questions posed during cross-examinations to make them less confusing to witnesses. Finally, the book discusses the possibility of entirely doing away with cross-examination of child witnesses. These recommendations are strengthened by the book’s thorough discussions of how various methods have been implemented in Australia, New Zealand, Austria and Norway.

Those on the defense side of the aisle may take issue with the book’s emphasis on protecting the rights of the child witness over the rights of the defendant. This is reflected in the choice of cover photo, which shows an adorable boy, rather than a photograph focused on justice, such as a courtroom or liberty scales, or a photograph of a convicted defendant who was later exonerated. A few articles mention the importance of protecting defendants’ rights. In particular, Trond Myklebust provides an informative historical analysis of defendants’ rights stipulated in the European Convention on Human Rights in the Norwegian context in which the best interests of children are enshrined. The interplay between these two traditions has resulted in a number of appeals on grounds that the defendant’s right to confront his accuser was absent at the child’s initial interview.  However defendants’ confrontation rights are not the emphasis of this volume, and many of the contributors are concerned with child testimony in systems other than the Anglo-American adversarial system, where confrontation rights are at their strongest.  Some of the essays do mention potential downsides of pre-recording children’s evidence. For example, in her chapter on Australia, Annie Cossins mentions that some defense counsel object to pre-recording testimony on the grounds that it is unfair for them to cross-examine the prosecution’s chief witness before the trial because there are further issues that are likely to arise. This, however, can be addressed by the provision that further cross-examination may be permitted, which the editors acknowledge. It would be interesting to have a more thorough discussion of this issue, with examples of how it would play out in the context of video recording of a child’s initial out-of-court testimony. If a child may be asked to come to court for further cross-examination, it seems the benefits of pre-recording the child’s evidence will be attenuated. In her chapter on New Zealand, Henderson mentions public controversy about aggressive interviewing contaminating children’s disclosures as a possible cause of resistance to experiment with new methods for eliciting children’s testimony. She does not mention, however, efforts to address these concerns. Due to the focus on reforms meant to protect the child, an essay that was focused on how new methods would protect both defendants’ rights and the accuracy of children’s testimony would have made the book better rounded but this is a matter of taste and not a reflection on the usefulness of the chapters in this volume.

Overall, Children and Cross-Examination is an interesting read on an extremely important issue, edited by two eminent scholars in this field and fleshed out by a group of very solid contributors. The book makes a strong argument for the need to reform the way child witnesses are handled in the courtroom in order to minimize their distress and promote the accuracy of their testimony. The scientific findings regarding the accuracy of child witnesses under cross-examination make the point that the way this is accomplished in adversarial systems leaves much to be desired.  The thorough discussion of procedures in other criminal justice systems provides valuable insights into how seemingly strong reforms are applied as well as potentially unperceived drawbacks that derail their implementation. This strengthens the book’s main argument that more of the reforms based on the Pigot report should be made in the United Kingdom. Readers from other countries will find a wealth of reasons for advocating similar changes to their own handling of child witnesses and an intuitive (i.e., informal, non-quantitative) cost-benefit analysis of video recording children’s disclosures.

Amelia Hritz is in the combined PhD/JD program in Developmental Psychology and Law at Cornell University; Stephen Ceci is the H. L. Carr Chaired Professor of Developmental Psychology at Cornell University.

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