Questioning a child witness is one of the most challenging tasks for the advocate. To do it well requires patience, skill, and a thorough command of the language, so that respondent answers are elicited to the questions asked.
Introduction
Questioning, a child witness, is one of the most challenging tasks for the advocate. To do it well requires patience, skill, and a thorough command of the language, so that respondent answers are elicited to the questions asked. Children attract the sympathies of juries who can well appreciate that a courtroom is a foreign, if not hostile, environment for most everyone, especially children. Many of us lack the experience and sensitivity to deal effectively with the child witness. We forget that children are not little adults. They do not understand the legal system, and they cannot speak like adults. The life experiences of children are far more limited than that of adults, and, as such, they cannot comprehend the reasoning or motives of adults. Besides, words often have different meanings, so that elaborate, and compound questions tend to be out of reach of the child’s ability to understand. Given their desire to please, children are often unwilling to admit that they do not understand a question and will not seek clarification as they will want to be helpful to the adult questioner, and will often provide answers to questions they do not understand.
Outlined below are some of the more common issues confronted by the plaintiff’s counsel when dealing with child witnesses in a civil case.
Specific Issues to Keep in Mind When Dealing with Children
1. Memory
“Generally, current research holds that children do not remember as well as adults, but that information provided through a child’s free recollection is generally accurate1.”
From the perspective of the child plaintiff’s counsel, it is critical to interview children promptly and to record their account of events immediately, or as soon as possible after the actionable wrong, as children’s memories generally fade over time.
2. Suggestibility
Children, more so than adults, are prone to suggestions made by the questioner. As previously stated, children tend to want to please the adult and to conform to what they believe to be the expectations of the adult questioner. Also, research confirms that leading questions are likely to elicit inaccurate information from children.
The most successful strategies for obtaining accurate, descriptive recall were found to be encouraging and accepting of unprompted descriptions, accompanied by sparing use of general questions to prompt recall. Questioning for specific details is likely to result in inaccurate information. Above all, when questioning, it is essential to convey as powerfully as possible to the child that questions do not have to answer, moreover, that it is better to say “I don’t know” than to give an uncertain answer2. (emphasis mine).
When you first meet with the child, ask open-ended questions that do not suggest you know anything about the case. You want to extract his or her version of the events correctly as he or she remembers it. Keep a detailed record each time you meet the child to see if his or her story remains consistent.
3. Fear
Any child will likely be fearful, or at least a little bit apprehensive, about the prospect of meeting with a lawyer, let alone going to court. It is, therefore, essential to interview a child in comfortable and familiar surroundings. If you must interview the child in your office, try to have some age-appropriate items at hand to put the child at ease. For example, when I was counsel to the Children’s Lawyer, I had a collection of trolls on my credenza that always seemed to captivate the interest of my child clients. Always keep in mind that your goal is to make the child feel comfortable and to foster a relationship of trust.
Bogoroch & Associates LLP has extensive experience in Personal Injury cases and passionately believes that victims of personal injury are entitled to access to justice.
Notes:
1 Ralph Underwager and Hollida Wakefield, The Real World of Child Interrogations (Springfield, 11.: Charles C. Thomas, 1990) at p. 28; as stated in Bryan Finlay, Q.C. and T.A. Cromwell, Witness Preparation Manual, (Second Edition, Canada Law Book Inc., 1999) at p 93.
2 Helen R. Dent, “The Effects of Interviewing Strategies on the Results of Interviews with Child Witnesses,” in A. Trankell, ed. Reconstructing the Past (The Netherlands: Kluwer, Deventer, 1982), at p. 292, as cited in Finlay, supra note 2 at p. 94.