Cross-examination of Child Witnesses

Joel Erik Thompson^*

ABSTRACT: The cross-examination of children is difficult and challenging.  Differences between child and adult witnesses are discussed and suggestions are made for the effective cross-exanimation of a child in cases of alleged sexual abuse.

The cross-examination of a child, especially a child alleged to have been the victim of a crime, and most especially when the child is alleged to have been the victim of a sexual crime, is probably the most challenging courtroom situation a criminal defense lawyer faces.  How does one cross-examine a child witness?  At the risk of seeming to trivialize the issue, I can only say that one does that the way porcupines mate.  Very cautiously.

As challenging as it has always been to cross-examine children, especially the child victim, in Arizona it is now much more difficult than it was prior to passage of the Victims' Rights Amendment.  It is now virtually impossible for a cross-examiner not to violate the first rule of cross-examination: "Don't ask a question unless you know the answer you will receive."  Without pretrial interviews, it is virtually impossible to anticipate answers to significant questions.  On the other hand, if it is any consolation to defense lawyers, despite the opportunity to conduct pretrial interviews and "practices" with these witnesses, prosecutors often are as uncertain of the answer that will be forthcoming to their question.

Why is there uncertainty about what to expect from a child witness?  The problem is probably 10% the child, and 90% the result of the examiner's technique and approach.  Adults, in general, are often not good at listening to children or communicating with them on their level.  We are much more skilled at dominating them, lecturing them and interrogating them.  Too often, children are seen as different from adults in irrelevant ways.  In truth, children are simply shorter, younger and less experienced adults in most circumstances.

All of the adult discomfort in communicating with children is magnified immensely when the child is the alleged victim of a sexual crime.  Whatever basic discomfort existed is now compounded by the natural empathy adults have for the need to protect these vulnerable little folk from bigger people who hurt them.  Add that to the almost universal discomfort of talking about sexual topics in the presence of strangers and you have a worst case scenario for most cross-examiners.
  

Differences Between Child and Adult Witnesses

Children are more intuitive than adults.  They are also more attentive to nonverbal cues.  As adults become more educated, sadly they become more cerebral.  We are often amazed by the perceptive skills of the blind and assume they have been blessed with heightened perception with their other senses to compensate for their loss.  Actually, they are merely not distracted by the purely visual and continue to use all of their senses.  Children are analogous.  Because their verbal skills are still in the early stages of development, they have not learned to rely so much on what is said and tend to be better tuned to how things are said.  Voice tone and inflection are much more significant in communicating with a child than they are with another adult.

It is also obvious that it is much easier to confuse children with big words because their vocabularies are often limited.  There is much discussion among experts of the "accommodation syndrome" in children.  This, in simplistic terms, is nothing more than a child's wish to be liked by people in positions of authority (virtually every adult to a child).  As a result, children tend to say what they think an adult wants to hear, regardless of the truth or accuracy of their statement.  It is really nothing significantly different from an adult's response to questions from the boss or a police officer after a traffic stop.  It is simply a heightened observation with a child because of the child's sharper intuitive skills.

A debate has long ranged about whether children "lie."  Sadly, there are still forensic experts who testify that "children never lie."  Such a position demonstrates "a lack of neutrality or freedom from bias in workers assessing sexual abuse complaints" (Quinn, 1988).  One study showed that in a non-criminal context (domestic relations proceedings), the court counselors believed that in about 20% of the cases, sexual abuse did not occur (Thoennes, & Pearson, 1988).

Whether children lie is probably more a semantic debate than a real difference of opinion between professionals.  I would submit that children do lie, just as adults do lie.  Children are simply less sophisticated, and hence lie for somewhat different reasons.  Any parent who has not seen his children do something naughty and then bold-faced lie that they didn't do it is either a candidate for the Parents' Hall of Fame, or is immensely unperceptive.

Perhaps the major distinction that can be drawn is that children often have little perception of the magnitude of the consequence of a lie regarding molestation or related interrogation.  They also often lack the clear distinction between what they have personally observed or experienced and what they have been told.  An obvious example is the three-year-old who will adamantly insist that there is a Santa Claus, because they have been told that he exists by people the child trusts and the child has seen persuasive evidence.  Thus, often children make statements that are not factually accurate, but they are not "lies" because the child lacks the intention to willfully mislead or deceive.

Children may also be unable to perceive the difference between an adult who intends to be truthful but misspeaks and thus says something inaccurate and the adult who intentionally misstates the truth.  They may call both lying because they fail to distinguish the significance of the adult's intention.

Similarly, the common prosecution chestnut of showing that a child witness knows the difference between the truth and a lie is really of no use in evaluating the credibility of the witness or the child's competency to testify.  A child may truly understand the difference between the truth and a lie, yet have no comprehension of whether what an adult says to them is one, the other or both.

In the end, honesty is not an age-dependent characteristic.  We do not grow more honest as we grow older, in fact we may grow less so.  To any given question, either an adult or a child who is honest may respond with a lie, for a variety of reasons.  Conversely, a dishonest child or adult may give an honest answer to the same question for very different reasons.  Honest people don't always tell the truth and dishonest people don't always lie.

It is often asserted that children are telling the truth about sexual happenings alleged to have occurred to them or in their presence because they lack the sophistication and knowledge to make up the incidents.  Again, this is a naive and rather simplistic presumption.  Perhaps it is true for a very young child, assuming they do not share a bedroom with sexually active roommates, have no older siblings or playmates and never are up after 9:00 p.m. in a household with access to cable TV.  For good or ill, part of the earlier sophistication and education of our children is an awareness of a great deal of sexual fact at surprisingly early ages.  Children are as bombarded with sex and sensuality in advertising, on TV and in G and PG-13 rated movies as any adult.

One of the true differences between young children and older children or adults is the ability to distinguish what is relevant from what is irrelevant.  Thus, an older child may give a fairly concise description of being molested.  By contrast, a young child could be expected to give a variety of irrelevant factual information.  An example would be a young child testifying about a molestation intermixed with observations about the child's puppy, statements about flowers in the garden or other events or observations that have no factual or temporal connection to the molestation.

In cross-examining a child witness, it is critical to remember that the jury will not tolerate the examiner attacking the witness.  There are often witnesses that invite their own destruction when they testify — so much so that when it happens the jury silently applauds the occurrence.  This does not happen with child witnesses.  The jury does not identify with lawyers.  Americans have a tradition of rooting for the underdog.  In a battle of wits and courtroom skills between a lawyer and a child, the lawyer is assured of never being viewed as the underdog.

Further, and perhaps most significantly, even if the examiner succeeds in devastating the credibility of what a child witness has testified as occurring, rest assured that the jury will have no difficulty creating a plausible explanation for the deficiencies in the child's testimony.  The ultimate goal in cross-examination of a child is to establish a credible contradiction in fact.  If the child testifies that he knows it was Thursday night that the events occurred because that is the day his favorite TV show is on and he was watching the show, testimony from the station manager that the show was not broadcast that night will accomplish far more than attacking the child and his poor memory.
  

Communication Errors When Talking With Children

Adults must be aware that time is a very difficult concept for children to comprehend.  Any parent traveling any distance with a child can attest to the fact that a child who is told "we will arrive there in four hours" will ask again in 20 minutes, "are we there yet?"  To a child, especially a very young child, the term "o'clock" is as apt to refer to the Irish family next door as it is to time.  Thus, if a child gives you a non-childlike answer, such as, "it was Thursday at 3:00 p.m.," a cross-examiner should immediately suspect adult input.

Similarly, children have great difficulty recalling events in sequence.  This becomes further exacerbated when a child has been abused in repetitious events, especially by a single abuser known well to the child.  The average length of an abusive relationship for girls is 31 weeks and the abuser is an individual well known to the child in 75-80% of the cases (Finkelhor, 1979; Mian, Wehrspann, Klajner-Diamond & LeBaron, & Winder, 1986; Tsai & Wagner, 1978).

Once again, if the child seems uncharacteristically able to put events in a sequence, suspect adult interference with the child's natural recollection process.  Just as some lawyers seem unable to understand that even fairly educated people are confused about whether subsequent means before or after, many more forget that to a child even the concept of before and after are muddled in the imprecision of a child's concept of time.  Much more will be gained by trying to ask about events that could have happened at the same time when talking with children. "Did this happen at the same time Daddy was yelling at the puppy?" will elicit a much more usable factual response than asking, "Did this happen before or after breakfast?"

Children also have difficulty with numbers.  A young child may be able to count to 10, but if asked how many times he was molested, the same child is totally incapable of giving an answer.  If tested further and asked to hand the examiner 5 of the 10 pennies placed before him, the child would be immobilized.

Family relationships are also confusing to children.  Daddy's mommy.  Is that the child's grandmother, or Daddy's wife?  To a child, a mommy is the woman living in the house who is responsible for domestic matters like meals, baths and laundry.  If questions are not formulated with great care, it takes very few questions to create a total mishmash out of the child's description of events and participants.

Bear in mind also that the worldly perspective of a child is very different from an adult's.  Adults see the world from 60 to 72 inches above the floor.  Children see the world from 30 to 36 inches above the floor.  Where visual observations are critical, part of your pretrial investigation should be "standing" in the child's position while on your knees.

Areas where children are naturally inaccurate in their testimony are often more persuasive of the truth of the allegation than the opposite.  For example, a three-year-old who says "then the man peed," rather than he ejaculated, is more in line with a child's perception of the function of a penis.  Again, if the child seems unnaturally accurate regarding such testimony, the careful cross-examiner should become suspicious of adult contamination of the testimony.
  

Questioning Techniques for Child Witnesses

It is essential to anyone questioning a child witness to bear in mind that children are hostile to all questioning.  Questions to a child are often a preamble to criticism, orders, complaint or judgmental observation by parents, teachers or peers.  Thus, a child may give an evasive response to a question an adult would consider a simple request.  For example, in response to the question, "What are you doing?" a child is likely to give an obviously inaccurate, but non-committal answer of "nothing."  Such an answer insulates the responding child from the myriad of negative trailers the inquisitor may have in mind.

Suggestive questions also cause problems even in children who are accurately recalling events and honestly trying to report them.  A textbook example is the experimentation of Varendonck, an expert called to a Belgian courtroom in 1910 to evaluate the credibility of child witnesses in a murder trial.  Varendonck asked 18 seven-year-olds the color of the beard of their teacher.  Sixteen responded "black" and two did not answer.  The teacher was clean shaven.  The suggestion that the teacher had a beard caused these children to respond with the most likely answer, rather than the accurate one because their memory was challenged by the question.  Since the children lacked the confidence to attack the question, they accepted it and simply tried to answer it as though the question were valid.

Another area to be aware of when questioning children is the difference in moral code or values between adults and children.  For example, adults will frequently espouse honesty while routinely stealing inexpensive items (or worse) from the office.  To a child, the dichotomy between the statements and the action is confusing.  To an adult, the rationalization is made that bringing pencils home from the office is acceptable because office work is often done in the evenings at home.

Perhaps a more illuminating example concerns the "Don't drink and drive" campaign.  An adult knows that drinking in this context refers to alcoholic beverages.  But a three-year-old will tell Daddy very authoritatively that he should not be drinking from his Coke can while driving.  Try explaining the distinction to that child and expect a look of serious skepticism.
  

Cross-Examination Goals and Techniques with Child Witnesses

We have established that attacking child witnesses is fruitless.  They can be neutralized, as any other witness, with independent evidence establishing that their testimony is impossible or unlikely.  With skillful attention to well posed and carefully presented questions, a child can be shown not to have credible evidence to present (assuming that is the case).  Sometimes the same can be established even when it is not true.  But, it is equally possible to present a lying witness in a manner that makes the testimony persuasive.

Many lawyers presume that Arizona Revised Statutes §-4061 with its absolute assertion that "In any criminal trial every person is competent to be a witness" prevents exclusion of a child witness.  Should you be faced with a judge who believes that no inquiry as to the competency of any witness may be undertaken, let me suggest that you propose to present the testimony of your phrenologist who will testify that after examining the bumps on the skull of the child victim, your expert witness has determined the child is lying.  Once the judge has ruled that your expert is not competent to testify, and you have established that the language of the statute means only "every person with relevant evidence to present" is competent to testify, you may then approach whether the child witness has relevant testimony to present.

Rule 601 of the Arizona Rules of Evidence clearly states that "Every person is competent to be a witness except as otherwise provided in these rules or by statute."  Clearly, the statute referred to has not changed the rules of evidence at all.  Rule 602 of the Arizona Rules of Evidence states "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."

A child witness, no differently from an adult witness, is not competent to testify unless he has personal knowledge of the events.  If a child's testimony lacks support to show that it is based on personal knowledge, it is as incompetent as any adult's testimony lacking similar support.

To effectively cross-examine a child, use simple language.  Learn from the advertisers and newspapers.  Ask short, direct questions.  Anticipate that children may be stymied by the questions "who," "what," "where," "when," and "why."  Good child witness questions are five-word sentences.  As the number of words in the question rises, the ability of the child to understand the question falls.

Avoid confrontation with the child.  It is OK to be an adversary, it is damaging to be hostile.  Watch the tone of your voice.  Children intimidate very easily, especially if you are male and have a deep voice.  (Children are usually closer to mothers than fathers, and hence find motherly people less threatening when they feel stressed).

Avoid dominating the child on the witness stand.  Even a short adult towers over a small child, even when the child is seated in the witness chair on pillows and telephone books.  If you must give the child a document, consider having the judge or court staff actually hand it to the child.

Listen to what a child says, and try to understand what the child means.  Often children say things that they understand, but that adults give adult meaning to.  (A child who tells her teacher she did not get her homework done because she had to sleep with Daddy will capture the teacher's undivided attention.)  Upon questioning the child (objectively and neutrally), the teacher may find that the family lives in a one-room studio apartment and everybody sleeps in the same bed.  The teacher may also find out that absolutely no impropriety occurred and her student was simply wishing she had her own room.  Assumptions by adults create disastrous consequences whether it is by a teacher, a social worker, a police officer, a prosecutor or a cross-examining defense lawyer.  Listening can tell you much more than assuming.  Hear beyond the words and grasp the child witness's meaning.

Do not ramble in questioning children!  Have a plan and purpose to your questioning.  If you don't need to ask the question, don't ask it!  Giving children the opportunity to add additional information as they answer a pointless question will seldom produce a beneficial result,  Adopt an inquisitive, interested and conversational demeanor and voice tone when questioning children.  If they don't want to talk to you, even being told by a judge to answer your question will only produce sustained silence.  When stressed, most children know that silence is safety.  And you know you are dying on your feet.
  

References

Finkelhor, D. (1979). Risk factors in the sexual victimization of children. Child Abuse & Neglect, 4, 265-273.

Mian, M.. Wehrspann, W., Klajner-Diamond, H., LeBaron, D. & Winder, C. (1986). Review of 125 children 6 years of age and under who were sexually abused. Child Abuse & Neglect, 10, 223-229.

Quinn, K. M. (1988). The credibility of children's allegations of sexual abuse, Behavioral Science & the Law, 6, 181-199.

Thoennes, N., & Pearson, 1(1988). A difficult dilemma: Responding to sexual abuse allegations in custody and visitation disputes. In D. J. Besharov (Ed.), Protecting Children from Abuse and Neglect: Policy and Practice () (pp. 91-112). Springfield, IL: Charles C. Thomas.

Tsai, M., & Wagner, N. (1978). Therapy groups for women sexually molested as children. Archives of Sexual Behavior, 7, 417-129.