The Interaction Between Children's Developmental Capabilities and the Courtroom Environment: The Impact on Testimonial Competency

1. INTRODUCTION (continued)

1. INTRODUCTION (continued)

1.6 The Inquiry into the Oath: A Child's First Foray on the Stand

Courts around the world have historically employed special inquiries to assess whether or not children are competent to testify. In Canada, a more discretionary approach has evolved in which the evidence of children is considered individually and in context (Paccioco, 1996). Children under fourteen are currently subjected to a judicial inquiry, the goal of which is to determine if they have the intellectual ability and the moral capacity to give evidence. This procedure is outlined in Section 16 of the Canada Evidence Act (1985). The two major areas of focus in a voir dire are the child's communicative abilities and the child's understanding of the meaning of the oath. Recently, there has been criticism of this inquiry process in Canada, based largely on courtroom observations of child witnesses having difficulty engaging in these inquiries (Bala, Lee, et al., 2001; Department of Justice Canada, 2001; Park & Renner, 1998).

One recommendation that has been suggested is that in light of what we know about children's cognitive development, we need to modify our expectations and revise our procedures when conducting inquiries into the oath. Another more radical recommendation is that we should totally dispense with the inquiries and simply have children agree to tell the truth on the stand.

Bala, Lee, et al. (2001), deal with this very issue in their recent article on assessing competency in child witnesses. They point out that Canadian law requires that a child witness must have an understanding of such concepts as the truth, a lie, an oath and a promise, in order to be considered competent to testify. Bala, along with his colleagues conducted a survey of the judiciary on the nature of questions asked by them of children during inquiries into the oath3. They found that many complex moral, religious and social issues are raised with children during these inquiries and that the level of abstract reasoning that is required by child witnesses is often beyond their cognitive abilities.

In earlier research conducted by the Child Witness Network (Child Witness Network, 1999) and more recently by the Toronto Child Abuse Center Court Observation Study (Department of Justice Canada, 2001), court observers noted great variability in the nature of questions put to children as part of their inquiries. In general, they too found that developmentally inappropriate questions were often put to the children, questions that included complex ideas and difficult vocabulary. They also surmised that much of what was asked during the inquiries was beyond the understanding of most child witnesses who were under fourteen and had to undergo the examination.

Another criticism of the inquiries that has come to light is the continued dependence of the court on a religious understanding of the oath. In some instances, very complex religious issues are raised with young children. Bala in his survey, found a consistent judicial expectation that child witnesses have religious training and a religious understanding of the oath. The Court Observation Study at the Toronto Child Abuse Center also found a judicial expectation that child witnesses have a religious understanding of the oath. In fact, observers in this study commented that children who did not have a religious upbringing found the questions embarrassing and uncomfortable.

Overall, the research suggests that inquiries appear to reflect a lack of understanding on the part of the court regarding the developmental trends in cognition and language in children. For these stated reasons, the practice of having an inquiry has been abolished in a number of other countries such as England, Scotland, and New Zealand. One proposal that was discussed here in Canada, in a recent Department of Justice consultation paper on child witness involvement in court (Department of Justice Canada, 1999), is one wherein the inquiry into the oath is abolished, allowing children regardless of their age, to just promise to tell the truth, after having been explained its importance in a court of law.

1.7 Cross-Examination of the Child Witness

Just over ten years ago in a Canadian magazine article called The Lawyer's Weekly, (Schmitz, 1988), a defense lawyer wrote the following advice for lawyers regarding the crossexamination of child witnesses, "You have to go in there as a defense counsel and whack the complainant hard at the preliminary...get all the medical evidence, the Children's Aid Society've got to attack the child complainant with all you've got, so that he or she will say, I'm not coming back in front of 12 good citizens to repeat this bullshit story that I've just told the judge" (p.22). In criminal court, the process of cross-examination is confrontational, accusatory and at times intimidating. Carter, Bottoms and Levine (1996) in their discussion of criminal proceedings, suggest that the discrepancy between competence and performance is a likely scenario in court for child witnesses of all ages. They conclude from their study, that lawyers are skilled at discrediting child witnesses in the courtroom through the use of conventional strategies that intimidate them into silence, lead to contradictions in their responses and produce emotional disorganization and distress.

When children are asked about their cross-examination experience, they generally report that the cross-examination was the most stressful part of the trial. In a three-year follow-up study of child witnesses (Sas et al., 1993), child witnesses were asked for their perspectives of the cross-examination. One adolescent child made the following statement when asked to describe the cross-examination: "It was all misleading questions and trickery" (p. 113). Another younger child referred to their memory of the cross-examination in this way: "The only thing I remember is how the defense lawyer grilled me, twisted everything I said, made me feel like a criminal and my step father the victim" (p. 114). A very small child reported "I hated him [the defense lawyer] because of the way he asked the questions, he scared me" (p. 118).

There is no doubt that this stage of the process is particularly difficult for children and often contributes to their demise as credible witnesses. Although this may be the intended goal of the cross-examination, the method by which this is accomplished does not recognize the imbalance that exists between the adult questioner and the child who responds.

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