'The cross-examination of a child is probably the most challenging courtroom situation a criminal lawyer faces', and accordingly should be handled 'very cautiously', Thompson (1993). I would strongly advise lawyers to follow the Memorandum published by the Home Office, as no jury will tolerate the examiner attacking the witness or breeching the guidelines. Instead, I would advise the lawyer to use clever psychological interviewing techniques to discredit the child's testimony.
Children are called to testify for many reasons and on numerous occasions, however many judges still find it difficult to assess the credibility of a child witness, without any other evidence. There have been numerous investigations into children's credibility and the effects of interviewing practices on their reports; primarily due to the impetus created by previous major cases (Krackow and Lynn 2003). Historically, psychological research is partly to blame for children being considered as unreliable witnesses, Freud disregarded many reports of childhood abuse, Smith, Cowie and Blades, 2003).
Initially the lawyer should scrutinize all evidence, specifically initial interviews. Lying is a distinct possibility, as children do not understand the implications and consequences that their lies may have. It is important to also check for evidence of interviewers exploiting children's suggestibility through coercive interviewing techniques. This is also to check strict guidelines have been followed as testimony can be rejected if this is the case.
'Bad interviewing practices are widespread', as even what are perceived as supportive statements such as 'don't be afraid to tell' are influential, Ceci and Bruck (1995). The lawyer should think about the source of the information, as input could have come from parents, peers or the television, especially if the child seems to comprehend or discuss complex concepts. Ceci et al (1994) showed that by implanting information into children's memory it is possible to make them believe that elaborated events actually happened.
In addition, the lawyer should investigate the child has been given training or is using rehearsal or repetition schemes and act accordingly to override these. The lawyer should then highlight to the judge some of the various problems with children's memory. Both time and age affect memory. Children fail to encode information properly, have low attention skills, lack adequate retrieval cues to access the information, and depend on adults' questions to cue their recall, Fivush (1993, in Williams and Banyard,1999).
Children are highly suggestible; therefore, on cross-examination the lawyer should use various tactics during his interview that attempt to prove the unreliability of the child. Coercive interviewing techniques produce high rates of false yet detailed event reports that are potentially compelling to observers, Krackow and Lynn (2003). Questions involving free recall are best, as children are renowned for saying very little when not prompted to do so; Kobaasigawa's 1974 study found that six year old children do not spontaneously use cues to help them remember, Smith et al (2003).
Leading questions are frequently used by defence lawyers, but also by interviewers; Lane et al 2000 (Krackow, 2003) discovered that even professionals found it difficult to recall whether they had used leading questions, this is another way the prosecutions evidence can be disregarded. Children lack the confidence to oppose suggestive questions and thus accept them. The lawyer should use open-ended questions that elicit free recall as they produce brief indecisive statements, Williams and Banyard (1999). However, questions that require a direct yes or no response can also produce derogatory results.
Dale Loftus and Rathburn (1978) (Krackow 2003) found that the questions wording is important, and special attention must be paid to the use of a definite article such as 'the' opposed to a quantifier such as 'a', to increase inaccurate responses. This can also be done by adding suggestive tags such as 'did you' to a question, Krackow and Lynn (2003). Through repeated questioning inconsistencies can be seen in children's testimony, this is presumably because children believe that their first answers were incorrect.
Cassel and Bjorkland (in press, cited in Ceci and Bruck,1995), give evidence that kindergarten children are more likely to change their answers and incorporate the suggested reply in their second responses. Repetition across interviews can also lead to confusion, as children cannot distinguish whether their memory trace has come from the original event or a previous examination. Furthermore, people will omit qualifiers such as ' it might have been' if repeatedly questioned and consequently sound more confident. Also, Petit et al (1990) showed that when children want an interview to end they will give an increased quantity of false statements.
Posing unanswerable questions can discredit child witnesses by showing that they do not understand what is being asked. Hughes and Grieve (1980, in Waterman 2000), found that when presented with bizarre questions children invariably respond, often giving false testimony. Children's metacognitive skills are relatively undeveloped leaving them generally unaware when they do not understand a question, Williams and Banyard (1999). The lawyer could also introduce a stereotype of his defendant to help skew the child's memory.
This was explained and shown to be successful by Ceci and Bruck (1995) in the case of 'Sam Stone', where children where induced to fabricate events. Children perceive lawyers as extremely authoritative figures; this should be exploited and emphasized. Children are sensitive to the status and power of their interviewers and thus willingly comply with their agenda. Toby and Goodman (1992) emphasise the importance of making this superiority known, if children feel intimidated, they are more likely to make greater inaccuracies, Williams and Banyard (1999).
Bottoms et al (1991 cited in Williams and Banyard,1999) found that even if a child had adequately stored and easily accessible memories an uncomfortable situation causes them to withhold salient details. So as far, as is ethically possible the lawyer should make the witnesses time in court stressful. The lawyer can exploit the presence of 'accommodation syndrome'; a child's desire to be liked by those in authority. Thus it is initially important to establish a relationship based on trust and to use simple language the child can understand, which leads to easier implantation of suggestions into children's minds, Thompson (1993).
Despite suggestions that simple language should be used, there is much evidence supporting the use of complex legal terminology. Perry et al. (1995) found that 'lawyerese' language makes children's responses less accurate and Saywitz (1990) found that children rarely understood words such as 'competence' and 'allegation' (Waterman,2000). Thus, the lawyer should make a specific assessment about the language needed. Moreover to ensure he pays attention to any non-verbal cues and the voice tone used as these are highly influential, Thompson (1993).
It is clear that through effective cross examination, 'with skilful attention to well posed and carefully presented questions' a child can be shown not to have credible evidence to present in court, Thompson (1993). Children's suggestibility can easily be undermined. Furthermore, cases are often decided on the basis of children's comparative credibility, and thus using thorough knowledge of the situation in hand the defence lawyer can easily achieve his aim of making the child look incredible, and hopefully winning hid defendants case in court.