Attorneys' Questions and Children's Productivity in Child Sexual Abuse Criminal Trials

Abstract

Summary We investigated the links between questions child witnesses are asked in court, children’s answers, and case outcome. Samples of acquittals and convictions were matched on child age, victim–defendant relationship, and allegation count and severity. Transcripts were coded for question types, including a previously under-examined type of potentially suggestive question, declarative questions. Children’s productivity was conceptualized in a novel way by separating new from repeated content and by adjusting the definition based on the linguistic demands of the questions. Attorneys frequently used declarative questions, and disconcertingly, attorneys who used these and other suggestive questions more frequently were more likely to win their case. Open-ended and closed-ended questions elicited similar levels of productivity from children, and both elicited more productivity compared with suggestive questions. Results highlight how conceptualization of questions and answers can influence conclusions, and demonstrate the important real-world implications of attorney questioning strategies on legal cases with child witnesses

‘Where were your clothes?’ Eliciting descriptions of clothing placement from children alleging sexual abuse in criminal trials and forensic interviews

“…Unfortunately, the Court did not report how the child was asked about clothing. Research examining how children are questioned about sexual abuse in court has shown that yes/no questions predominate (Andrews, Lamb, & Lyon, ; Hanna, Davies, Crothers, & Henderson, ; Klemfuss, Quas, & Lyon, ; Stolzenberg & Lyon, ). Hence, it is likely that the child in Emmett was asked yes/no questions about his and the defendant's clothing placement (e.g., ‘Were your/his clothes on?’ or ‘Were your/his clothes off’?…”

Relations between attorney temporal structure and children's response productivity in cases of alleged child sexual abuse

“…(Results concerning the frequency of attorneys' use of the different question types can be found in Klemfuss et al . ().) In other words, of interest was whether, for example, temporal structure was consistently higher when WH questions were asked (as might be expected from forensic interviewing protocols) and lower when suggestive questions were asked.…”

“…Namely, prosecutors are invested in highlighting children's strengths as witnesses and encouraging them to provide the details of their experiences when those details best contribute to the child's allegation. Given that previous research has demonstrated that defence attorneys also provide less structure for children through the types of questions asked (e.g., more suggestive, fewer WH; Klemfuss et al ., ; Mueller & Kirkpatrick, ; Zajac & Hayne, ; Zajac et al ., ) and that these question types are largely independent of provision of temporal structure, child witnesses may be at a double disadvantage when being questioned by defence attorneys.…”

“…Attorneys' questions, as well, are often complex and difficult for children to understand, thereby affording little opportunity for children to provide a narrative response (e.g., Zajac & Hayne, ). Indeed, the majority of children's responses on the stand are minimal – often only ‘yes’ or ‘no’ (Klemfuss, Quas, & Lyon, ) and may or may not be demonstrative of children's actual knowledge or even understanding of the question (Fritzley & Lee, ; Waterman, Blades, & Spencer, ).…”

“…During cross‐examination, attorneys are permitted to use leading questions, and defence attorneys are motivated to discredit the child's earlier statements. Not surprisingly, defence attorneys ask a higher proportion of suggestive questions than prosecutors (e.g., Klemfuss et al ., ; Zajac & Hayne, ; Zajac et al ., ). Another potential method for discrediting child witnesses is to ask questions with minimal temporal structure, for example, by switching topics and failing to cue children about which event, or event element, they are referencing (Davies & Seymour, ; Hanna, Davies, Henderson, Crothers, & Rotherham, ; Zajac et al ., ).…”