Developmentally Appropriate Questions for Child Witnesses

Abstract:     
Recent legislative reforms in Canada have made it easier for courts to receive the testimony of children and for children to endure the experience of testifying. However, both lawyers and judges, unaware of the fundamentals of child development, often fail to question children effectively. Subjecting children to confusing and developmentally inappropriate questioning makes them unable to communicate accurately what happened to them and what they observed. Not only does this make the witnesses' experience upsetting, it makes it difficult to determine the truth. The authors explore ways in which justice system professionals' interactions with children may be improved: lawyers and judges can learn to ask questions appropriate for the age and capacity of the child witness, and judges can play a larger role in monitoring and assessing the questions children are asked in court. First, the authors argue that effective questioning of child witnesses requires an understanding of child development in three critical domains (linguistic, cognitive and emotional) and the use of appropriate questions for children's specific levels of development. With education, practice and sensitivity, justice system professionals can effectively question a child witness. Second, examining Canadian caselaw, they argue that the courts have a role to play in monitoring and assessing a child's ability to testify. Judges may choose to give less weight to the evidence of children if it was extracted by confusing or aggressive cross examination. Lawyers may also have an obligation to call expert evidence on child development to assist the courts in assessing the evidence of children. When children are questioned properly, most of them can be very effective witnesses. By learning to ask developmentally appropriate questions, lawyers and judges can improve the utility of children's testimony as well as reduce the likelihood that children will be traumatized by their courtroom experiences.

Number of Pages in PDF File: 50

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