The effects of cross‐examination on children's reports of neutral and transgressive events

Abstract

Purpose. In many jurisdictions child witnesses who testify in court about their own sexual abuse are cross-examined by a defence attorney. Children find this process to be distressing, and despite recent child-focussed modifications to other aspects of the legal process, cross-examination has remained largely unaltered. This lack of modification is due, in part, to the assumption that cross-examination promotes truthful testimony (Wigmore, 1974 Evidence in trials at common law). However, little empirical research has investigated the effects of cross-examination questions on children's reports of neutral and transgressive events. To examine these effects a laboratory-based study was conducted.Method. One hundred and twenty kindergarten (M = 6 years) and grade 2 (M = 8 years) students participated individually in a staged event. Children witnessed an adult commit a transgression and were then interviewed twice about it. Children first underwent a direct-examination interview followed by either a direct-or crossexamination interview.Results. Children's reports of neutral events were significantly less accurate in Interview 2 cross-examination, than they were in Interview 1 direct-examination, whereas children interviewed twice with direct-examination were equally accurate in Interviews 1 and 2. Furthermore, children whose second interview involved crossexamination were less accurate in their reports of neutral events than were children whose second interview was a direct examination. Cross-examination also affected some children's disclosures of a witnessed transgression. More of the older children provided truthful disclosures of the transgression in the initial direct examination compared with the Interview 2 cross-examination.Conclusions. Findings suggest that cross-examination as used in this study may not be the most effective procedure for eliciting truthful testimony for both neutral and transgressive events from children aged between 5 and 8 years.

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

“…Suggestive questioning places pressure on children to reconsider and change their previous responses; both experimental (e.g., Zajac & Hayne, ; Fogliati & Bussey, ; Jack & Zajac, ) and field (Zajac et al, ; this study) research has shown that children are most likely to change their answers when questioned using closed‐ended suggestive prompts. In the present study, suggestive questions were more likely to elicit self‐contradictions than closed‐ended option‐posing prompts, open‐ended directives, and invitations, while option‐posing questions were more likely to elicit self‐contradictions than invitations.…”

“…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.…”

“…Many laboratory analogue studies have shown that children are more likely to change their correct responses when cross‐examined suggestively (e.g., Fogliati & Bussey, ; Jack & Zajac, ). For example, Fogliati and Bussey () interviewed 120 5‐ and 7‐year‐old children twice about a staged transgression. All children first underwent a direct‐examination and then either a second direct‐ or cross‐examination immediately afterwards.…”

Examining children in English High Courts with and without implementation of reforms authorized in Section 28 of the Youth Justice and Criminal Evidence Act

“…Researchers instead encourage the use of open‐ended prompts such as free recall invitations (e.g., “Tell me what happened”) and directive prompts (e.g., “What did he do after your mum left?” when the child has previously disclosed that he did something after the mother left; see Lamb et al, ; Melton et al, for reviews; see Table ), which tend to elicit more accurate (Dent, , ; Jack, Leov, & Zajac, ; Lamb, Orbach, Hershkowitz, et al, ) and more detailed (e.g., Andrews & Lamb, ; Lamb, Orbach, Hershkowitz, et al, ; Sternberg, Lamb, Davies, & Westcott, ) responses. Furthermore, field studies have shown that few, if any, self‐contradictions are elicited using open‐ended invitations and directives (Andrews & Lamb, ; Fogliati & Bussey, ; Lamb & Fauchier, ). Despite these findings, lawyers predominantly use “risky” option‐posing and suggestive prompts when questioning children in court (e.g., Andrews & Lamb, ; Klemfuss, Quas, & Lyon, ).…”

Self-Representation: Pro se Cross-Examination and Revisiting Trauma upon Child Witnesses

“…Of interest, neither questioning style resulted in answers from the children that discriminated between liars and truth-tellers: Accuracy of the child liars increased in response to cross-examination, but accuracy of the child truth-tellers had a corresponding decrease. To the neutral questions, children's responses were consistent with their earlier responses regardless of whether or not those responses were truth or lies (see also Fogliati and Bussey 2014;Bussey 2015, Zajac et al 2017). Thus, overall, cross-examination was not helpful.…”