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Chapter Ten
Investigative Interviewing in the
Courtroom: Child Witnesses under
Cross - Examination
Rachel Zajac
Psychology Department
University of Otago, Dunedin, New Zealand
Concern has long been raised regarding children ’ s ability to testify competently
in what is essentially a legal system designed for adults. Historically, this con-
troversy has centred on whether or not children possess the ability to recall
and recount their past experiences accurately. It is now well documented,
however, that the reliability of children ’ s eyewitness testimony has more to do
with the interviewer and interview conditions than with the individual child.
Over the past 30 years, researchers have fi rmly established the interview condi-
tions under which we can obtain the most complete and accurate accounts
from children and, conversely, the conditions that promote inaccuracy (see
Ceci & Bruck, 1993 ; Warren & McGough, 1996 ; Bruck & Ceci, 1999 , for
reviews).
In line with these research fi ndings, numerous countries have adopted strict
guidelines for interviewers who elicit children
’ s eyewitness reports (e.g.,
Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or
Intimidated Witnesses, Including Children; Home Offi ce, 2002 ). In addition,
many countries have reformed the law pertaining to child witnesses, allowing
them to avoid aspects of the adversarial trial procedure that may impair their
testimony. For example, videotaped evidential interviews, conducted by trained
interviewers shortly after an allegation is made, can often be played in court
in place of the child ’ s direct evidence, thereby reducing both the effect of delay
on children ’ s testimony and the need for repeated interviewing (Myers, 1996 ;
Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions
Edited by Ray Bull, Tim Valentine and Tom Williamson
© 2009 John Wiley & Sons, Ltd.
162
Handbook of Psychology of Investigative Interviewing
Pipe
& Henaghan,
1996 ). In addition, the widespread implementation of
screens and closed - circuit television (CCTV) facilities has meant that many
child complainants do not have to face the accused while testifying (Myers,
1996 ; Pipe & Henaghan, 1996 ; Saywitz, Goodman & Lyon, 2002 ). Research
suggests that these reforms to policy and practice have enabled children to
communicate more effectively in legal proceedings (Goodman, Tobey,
Batterman - Faunce, Orcutt, Thomas, Shapiro & Sachsenmaier, 1998 ; Goodman,
Quas, Bulkey & Shapiro, 1999 ).
Although the modifi cations described above have addressed many problem-
atic aspects of the adversarial process, some have argued that they have not
gone far enough. Specifi cally, almost all of the recent recommendations and
law reforms have focused on the interviewers who solicit children ’ s primary
evidence; one crucial component of the adversarial process has been over-
looked. Surprisingly, very little research has examined the effect of cross
-
examination on children ’ s testimony.
What is c ross - e xamination?
Cross - examination is the process by which opposing counsel scrutinizes a wit-
ness ’ s evidence for inaccuracies or inconsistencies that may render it unreliable
(Yarmey, 1979 ). Without cross - examination, evidence presented in the court-
room would go unchallenged. Cross - examination is considered by legal profes-
sionals to be a necessary and central aspect of any adversarial trial, but it is
deemed to be a particularly valuable tool in cases that hinge on verbal testi-
mony (Eichelbaum,
1989 ). In theory, cross
- examination aims to facilitate
accuracy. In fact, it has been described as
‘ the greatest legal engine ever
invented for the discovery of truth ’ (Wigmore, 1974 : 32). In practice, however,
cross - examination is commonly used with the aim of discrediting the witness ’ s
testimony, regardless of its accuracy (Henderson, 2002 ).
Techniques that can be used to discredit witnesses are commonplace in
legal textbooks (e.g., Stone,
1988 ; Glissan,
1991 ). For example, lawyers
might press witnesses to contradict themselves or to enlarge a story until it is
improbable or unbelievable. Textbooks also encourage lawyers to fi re damag-
ing facts at the witness during cross - examination, to attack the witness ’ s cred-
ibility or credentials, and to ask questions in an illogical sequence in order to
prevent the witness from becoming aware of the purpose of questioning
(Glissan, 1991 ). It is certainly not uncommon for cross - examining lawyers to
directly accuse witnesses of fabricating aspects of their testimony (Davies,
Henderson & Seymour, 1997 ). Given these types of strategies, it is not sur-
prising that witnesses have traditionally viewed cross - examination as a negative
and aggressive procedure relative to the other components of the evidential
process.
Investigative Interviewing in the Courtroom
163
Potential p roblems for c hild w itnesses u nder
c ross - e xamination
Recently, the question has arisen as to whether cross - examination is an appro-
priate questioning procedure for children. Particular concern has been raised
regarding sexual abuse cases, in which corroborating evidence is rare (Golden,
2000 ), making cross - examination the only available legal avenue with which
to resolve confl icting verbal evidence.
Why should we be concerned about child cross - examinations? The simple
answer is that the typical child cross - examination has been described as ‘ a
virtual how not to guide to investigative interviewing ’ (Henderson, 2002 : 279).
That is, the questioning style often used during cross - examination directly
contravenes almost every principle that has been established for obtaining
complete and accurate reports from child witnesses. On the basis of prior
empirical research, at least three aspects of cross - examination are likely to pose
problems for children. These are outlined below.
Problem 1: Leading and s uggestive q uestions
Children are particularly susceptible to the effects of suggestion (for reviews,
see Ceci & Bruck, 1993 ; Bruck & Ceci, 1999 ). For this reason, questions that
assume disputed facts (e.g., ‘ How fast was the red car going? ’ when the colour
of the car has not been ascertained), or suggest the desired response (e.g.,
‘ Was the car going far too fast? ’ ), or needlessly restrict the range of responses
that children can provide (e.g., ‘ Was it a red car or a blue car? ’ ) are strongly
discouraged when eliciting children ’ s primary evidence. In stark contrast, not
only are lawyers conducting cross - examination allowed to ask children these
types of questions, leading and suggestive questions are encouraged in many
legal textbooks (e.g., Eichelbaum, 1989 ; Glissan, 1991 ). The right to lead
witnesses has been desc
ribed as ‘ one of the great advantages of cross - exami-
nation ’ (Glissan, 1991 : 105).
Given the clear discrepancy in the types of questions permitted during
different phases of evidential questioning, it is not surprising that studies
of trial transcripts have shown that leading and suggestive questions are far
more likely to be posed during cross - examination than during direct examina-
tion or evidential interviews (Davies
& Seymour,
1998 ; Zajac, Gross
&
Hayne, 2003 ). In fact, these types of questions tend to make up the bulk of
the questions that are asked during cross - examination. In our study of tran-
scripts involving child sexual abuse complainants between the ages of fi ve and
13, over two - thirds of the questions that children were asked during cross -
examination were either leading (e.g., ‘ You talked to her two times, didn ’ t
you? ’ ) or closed (e.g., ‘ Did you go straight home after that? ’ Zajac et al. ,
2003 ).
164
Handbook of Psychology of Investigative Interviewing
Problem 2: Complex q uestions
Most current best practice standards for investigative interviews with children
recommend that the questions posed are developmentally appropriate for the
child ’ s cognitive skill and linguistic competence. Despite these recommenda-
tions regarding primary evidence, research suggests that the questions asked
during cross - examination often exceed children ’ s developmental capabilities
(Brennan & Brennan, 1988 ; Walker, 1993 ; Carter, Bottoms & Levine, 1996 ;
Davies & Seymour, 1998 ; Cordon, Goodman & Anderson, 2003 ; Zajac et al. ,
2003 ). As with leading and suggestive questions, complex questions are sig-
nifi cantly more common during cross - examination than during other aspects
of evidential questioning (Goodman et al. , 1992 ; Davies & Seymour, 1998 ;
Zajac et al. , 2003 ).
Several aspects of the language used during child cross - examinations have
raised concern among researchers. First, the vocabulary and syntax used to
construct cross - examination questions has been shown to be highly complex
across several studies (e.g., Brennan & Brennan, 1988 ; Flin, Bull, Boon &
Knox, 1992 ; Goodman et al. , 1992 ; Walker, 1993 ; Davies & Seymour, 1998 ;
Zajac et al. , 2003 ), many of which have directly compared the language used