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

Abstract

In the first study to systematically assess lawyers' questioning of children in Scotland, we examined 56 trial transcripts of 5-to 17-year-old children testifying as alleged victims of sexual abuse, focusing on differences between prosecutors and defense lawyers with respect to the types of questions asked and effects on witnesses' responses. Prosecutors used more invitations, directives, and option-posing prompts than defense lawyers, who used more suggestive prompts than prosecutors. Children were more unresponsive and less informative when answering defense lawyers than prosecutors. All children contradicted themselves at least once, with defense lawyers eliciting more self-contradictions than prosecutors. Suggestive questions were most likely to elicit self-contradictions, with suggestive confrontational and introductory questions eliciting significantly more self-contradictions than suggestive suppositions. Children also acquiesced more in response to tagged suggestions than untagged suggestions. Overall, lawyers altered their behavior little in response to variations in children's ages.

Interviews of Children in a Portuguese Special Judicial Procedure

“…As in other studies focused on in‐court questioning (e.g., Andrews & Lamb, ; Andrews et al, ; Klemfuss et al, ; Stolzenberg & Lyon, ), and as we anticipated, option‐posing questions were used most frequently by all DMF participants. Such questions thus seem to characterize the approach adopted by legal professionals questioning witnesses.…”

Does implementation of reforms authorized in Section 28 of the Youth Justice and Criminal Evidence Act affect the complexity of the questions asked of young alleged victims in court?

“…Problematically, children often attempt to answer complex closed‐ended questions even if they are incomprehensible or unanswerable (Waterman, Blades, & Spencer, ) likely because a simple “yes” or “no” often satisfies the questioner (Walker, ). Field research consistently demonstrates that both prosecutors and defense lawyers mostly ask option‐posing “yes/no” questions (Hanna et al, ; Klemfuss, Quas, & Lyon, ; Zajac & Cannan, ) and that defense lawyers ask more suggestive questions than prosecutors do (Andrews & Lamb, ; Klemfuss et al, ; Stolzenberg & Lyon, ; Zajac & Cannan, ). Not only do closed‐ended and suggestive questions elicit erroneous responses and self‐contradictions (Lamb, Orbach, Hershkowitz, Horowitz, et al, ; Zajac et al, ; Zajac & Hayne, ) but they also tend to be more linguistically complex (Andrews & Lamb, ; Walker et al, ).…”

“…Not only do closed‐ended and suggestive questions elicit erroneous responses and self‐contradictions (Lamb, Orbach, Hershkowitz, Horowitz, et al, ; Zajac et al, ; Zajac & Hayne, ) but they also tend to be more linguistically complex (Andrews & Lamb, ; Walker et al, ). Research has also determined that suggestive questions vary, with some being more complex than others (e.g., tagged prompts; Andrews & Lamb, ; Evans, Stolzenberg, & Lyon, ; Walker, ). For example, Andrews and Lamb () reported that tagged suggestive questions (e.g., “And then you lied to your mom, isn't that right?”) were more complex than untagged suggestive questions (e.g., “Why did you lie to your mom?” when the child had not admitted lying).…”

“…Despite the abundance of research identifying the difficulties that children and adolescents have with adult language, few researchers have examined the complexity of the questions lawyers ask when examining children in court. Andrews and Lamb () and Zajac et al () found that defense lawyers asked more complex questions than prosecutors, perhaps because defense lawyers use more suggestive prompts (Andrews & Lamb, ). Hanna et al () not only found that defense lawyers used more double negatives and questions with two or more subordinate clauses than prosecutors but they also found that prosecutors asked more questions containing passive voice than defense lawyers.…”

“…Despite this, child witnesses are commonly subjected to developmentally inappropriate questioning in and out of court that adversely affects the richness and accuracy of their responses (Andrews & Lamb, ; Carter, Bottoms, & Levine, ; Hanna, Davies, Crothers, & Henderson, ; Lamb et al, ; Zajac & Hayne, ). Not only are children frequently asked risky close‐ended and suggestive questions (Andrews & Lamb, ; Zajac, Westera, & Kaladelfos, ; see Table for definitions) that have been found to contaminate the information provided (Lamb, Orbach, Hershkowitz, Esplin, et al, ) and elicit self‐contradictions (Andrews & Lamb, ) but they are often also asked questions whose complexity exceeds their developmental capabilities (Andrews & Lamb, ; Hanna et al, ; Zajac, Gross, & Hayne, ). Accordingly, British lawyers have been instructed to adapt their questions to children's developmental abilities (Criminal Practice Directions, ) but when children are asked complex, close‐ended, and suggestive questions, they are unable to give their best evidence in court.…”