Cross-examining Children: English Lawyers move the Goalposts
by Dr Emily Henderson*
Testing the evidence of children in the criminal courts is a perennial problem, but one the English bar and the English Court of Appeal are getting much closer to solving. It is worth considering just how they are managing – and taking a peek at the tools they use.
The problem: lawyers and communication
The hard truth is that, whatever we may believe, most of us are not very good at communicating with children in court.
While most lawyers have infinite faith in conventional cross-examination techniques, a vast number of studies over the last 30 years, including reasonably recent ones in New Zealand, (Hanna, K, Davies, E, Crothers C & Henderson E, Questioning child witnesses in New Zealand's criminal justice system. Is cross-examination fair?  (www.tandfonline.com/doi/abs/10/1080/13218719.2011.615813#.UgVCqKzy9VU) suggest it is, in fact, a peculiarly poor method of testing children. Cross-examination’s traditional emphasis on controlling and leading may (or may not) serve a purpose in preventing robust adult witnesses evading the point, but with children numerous studies have found there is a high risk that they simply comply with the examiner’s suggestions. Thus the evidence produced is often seriously unreliable.
Further, study after study (including recent New Zealand ones) have found that the language cross-examiners use with children is frequently inappropriate. While many of us in the criminal court pride ourselves on our ability to adapt (after all, many of us were children once ourselves) the sad fact is that the research shows we are often quite deluded about our skills.
A recent study of language in New Zealand criminal trials showed a high proportion of the questions were unsuited to their recipients. There was an overwhelming preponderance of highly suggestive questions, questions containing multiple embedded clauses (or hidden assumptions); two- (or three-, or four-) in-one questions; a high proportion of highly suggestive tagged questions (“he didn’t do it, did he?”) and a tremendous amount of developmentally inappropriate vocabulary and good old legalese.
English cross-examination has been found to be at least as bad as the Kiwi variety. There are well-respected studies which suggest as much as 50% of questions asked of children are incomprehensible. (Plotnikoff J & Woolfson R Measuring up? Evaluating implementation of Government commitments to young witnesses in criminal proceedings NSPCC www.nspcc.org.uk/measuringup 2009; Spencer J & Lamb M Cross-examination: Time for a Change? Hart 2012).
Not only this, but, unfortunately, research also shows that judges and prosecutors very rarely intervene, even where the cross-examination has slid completely off the rails. The likely reason is not only are judges and prosecutors wary of appearing over-protective of the witness but also most of us, at the bench or the bar, really know very little about spotting inappropriate questions.
The problem is not only with children. Studies also suggest a far higher proportion than previously realised of adult witnesses and especially adult defendants have significant undiagnosed learning disorders which interfere with their ability to communicate in court. Autism, Asperger’s, stroke victims, people with Downs Syndrome, the deaf, those with serious speech impediments – there are numerous obvious and not-so-obvious witnesses and defendants who struggle to understand and to make themselves understood in court.
Unreliable evidence helps no one.
It doesn’t help the jury to get evidence it can’t make head or tail of. It doesn’t help a child to be confused and baffled. It doesn’t help the innocent defendant. A prosecutor can always fall back on the “How can you pay any attention to that retraction given the way it was obtained? Rely on what she said to the nice evidential interviewer who could at least ask a question a kid could understand.” Nor does it help the legal profession in its struggle for economic survival if the media and academics (or politicians) can attack us for incompetence or even cruelty. Poor cross-examination hurts us all.
English reforms: judicial guidance and advocacy training
However, in the last three years the English courts and the English legal profession have made massive strides to turn things around – and they have done so off their own bat.
Since 2011 the English Court of Appeal has released a game-changing series of decisions identifying and cracking down on a variety of inappropriate tactics and endorsing judges who keep proper control of their courtrooms. (R v Barker  EWCA Crim 4; R v W & M  EWCA Crim 1926; R v Edwards  EWCA Crim 3028; R v Butt  EWCA Crim 805;Wills v R  EWCA Crim 1938).
The Court of Appeal has repeatedly said that these changes aren’t about bleeding hearts. This is about developing a style of cross-examination which is rigorous but also reliable: a method of testing which gets results and doesn’t rely on simply creating confusion.
The legal profession has also poured massive efforts (on a very restricted budget) into training barristers to cross-examine properly. The equivalent to NZLS CLE’s Litigation Skills course, the Keble advocacy training week on the South Eastern Circuit in England devotes two days to examining vulnerable witnesses. The UK Criminal Bar Association has produced an excellent how-to DVD just this year. (Criminal Bar Association: A Question of Practice, 2013, a training film on the questioning of vulnerable witnesses and defendants, introduced by the Lord Chief Justice, released April 2013). There is also a remarkable free website, run through the Bar’s Advocacy Training Council, developed by senior academics and endorsed by no lesser person than the (ex-defence counsel) Lord Chief Justice, giving clear advice and tips on cross-examining everyone from very young children to autistic adults, all of which can be printed off on a sheet of A4 and taken into court with you. Did I mention the free bit – and the bit where Kiwi lawyers can access it too? (The Advocate's Gateway at www.theadvocatesgateway.org/).Several English barristers and judges to whom I have spoken recently even make the point that the ability to deal well with vulnerable witnesses can be part of the Bar’s USP: a unique selling point in a world of cost cutting.
Training and judicial guidance – could they be the keys to better trials for vulnerable witnesses and defendants? And could New Zealand apply the same methods?
*Dr Henderson is the New Zealand Law Foundation International Research Fellow and Visiting Fellow, Clare Hall, Cambridge, England.
This article was first published in LawTalk 826, 30 August 2013, page 21.