Cross‐examination: The Testimony of Children With and Without Intellectual Disabilities

Abstract

This is the unspecified version of the paper.This version of the publication may differ from the final published version. Cross-examination of children with and without intellectual disability 2 Permanent repository link: AbstractThe present study assessed how children with a range of cognitive abilities fared during a mock cross-examination. Ninety children (aged 4 to 11 years; 18 with intellectual disabilities [ID], 13 with borderline intellectual disabilities [BID], and 59 who were typically developing [TD]) witnessed a staged event, participated in an initial forensic interview (a few days later), and were cross-examined by a barrister-in-training (ten months later). During cross-examination, 98% of all children changed at least one response from their initial interview when challenged. However, group differences in performance (total number of changed responses, 'resistance' to challenges), controlling for age and memory for event details, were not significant or did not prove reliable at the level of individual group contrasts. Overall, little robust evidence for group differences in performance on crossexamination could be identified, and memory for event details was the most reliable predictor of performance. Keywords: Child witnesses; cross-examination; intellectual disabilitiesCross-examination of children with and without intellectual disability 3 Cross-examination of children with and without intellectual disabilitiesIn an adversarial system of justice such as that of the UK, Australia and the USA, there is a strong emphasis on oral testimony from witnesses about the facts of a disputed case (Ellison, 2001). In court, following the presentation of direct evidence by the prosecution (testimony from the victim, witness or defendant), cross-examination is undertaken by opposing counsel to challenge the reliability of a witness's evidence and, ostensibly, to search for the truth (Wellman, 1986;Yarmey, 1979). Effective cross-examination highlights inconsistencies in witness testimony. Yet the techniques employed to do this, such as pressing the witness to change their response (Zajac, Gross & Hayne, 2003), accusing the witness of lying (Davies, Henderson & Seymour, 1997;Plotnikoff & Woolfson, 2009;Spencer, 2012), repetitive and complex questioning (Plotnikoff & Woolfson, 2012;Zajac, 2009) and deliberately setting the sequence of questioning to confuse the witness (Glissan, 1991) are, in reality, concerned with discrediting a witness (Henderson, 2002). The demands on a witness to produce reliable oral evidence, often many months or even years, after an event are high, and witnesses find the process stressful, aggressive and anxiety provoking (Plotnikoff & Woolfson, 2009Zajac, 2009 However, the questions (and questioning style) used during cross-examination often run counter to available research/protocols, and the use of ABE guidelines does not extend to the process of cross-examination. In fact, legal professionals show considerable resistance to proposals to alter cross-examination procedures (see Spence...

Changed Responses Under Cross‐examination: The Role of Anxiety and Individual Differences in Child Witnesses

“…We expected age and memory for unchallenged responses to be negatively related to vulnerability to cross‐examination challenges, while suggestibility (measured on the GSS) would be positively related. The effects of IQ on cross‐examination challenges were harder to predict, as previous research has only assessed group differences, and not in relation to other individual difference variables (Bettenay et al, ); however, these findings are suggestive of IQ not being predictive of performance during cross‐examination. Importantly, all of our predictions were tentative given this is the first study to explore the role of these factors in relation to cross‐examination style of questioning.…”

“…The sample comprised 83 children (38 males) aged 4 years 6 months to 11 years 0 months (mean = 9 years 0 months, standard deviation ( SD ) = 1 year 8 months) with a range of intellectual abilities (mean IQ= 84.64, SD = 18.54; range = 47–121). Further details concerning the characteristics and recruitment of the sample are presented by Bettenay et al ()…”

“…High levels of changed responses during cross‐examination have also been found in a recent study exploring the effects of cross‐examination on children with a range of intellectual abilities (IQs ranging from 47 to 121). Bettenay, Ridley, Henry and Crane () found 98% of children (aged 4 to 11 years) changed at least one of their previous responses during cross‐examination. However, there were no significant differences in how children with and without intellectual disabilities responded to challenges during cross‐examination.…”

“…This pattern is also observed in studies exploring the relationship between age and suggestibility (Ceci & Bruck, ; Ceci & Friedman, ). To our knowledge, the only study that has considered intelligence in relation to cross‐examination questioning was by Bettenay et al (). Dividing participants into one of three groups (typically developing, moderate ID or borderline ID), no significant group differences as a function of ID were observed.…”

How do Lawyers Examine and Cross‐Examine Children in Scotland?

“…Children interviewed in the direct/direct condition were equally accurate in the two interviews, whereas children in the direct/cross condition were significantly less accurate when cross‐examined. Although some researchers have shown that these effects are stronger for younger than for older children (e.g., Zajac & Hayne, ; Bettenay, Ridley, Henry, & Crane, ), Fogliati and Bussey () reported no age differences in the number of errors elicited in cross‐examinations, perhaps because the age difference between the groups was so small.…”