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



2.4 Dealing with Hypothetical Questions

Children can have difficulty responding to hypothetical situations that are presented to them by lawyers when they are on the stand. Questions such as ("What if I told you that the car was not able to fit in the garage? What if I told you that he wasn't tall enough to reach the window from the ground?") are not appropriate. Children under ten do not possess the abstract reasoning powers to allow them to integrate this new information and to apply it to their existing knowledge about the situation. They generally do not understand the term "What if?" Most children will simply deny that the suggested scenario is an accurate description. They will not be willing or able to entertain another hypothesis or integrate new and perhaps contradictory information, because this involves a level of abstraction of which they are not capable. Others will provide a response, which does not incorporate the provided information. This is because they lack the ability to change their own perspective and imagine another set of circumstances.

Children typically do not develop the ability to deal with hypothetical questions until they are at least ten or twelve and even then they are unsure of how they should answer. Advising lawyers not to use this type of question would be a good step towards ensuring that the responses provided by children are accurate and within their stage of cognitive development.

2.5 Using Scale Models to Explain a Situation to the Court

Young children are often asked to explain their knowledge of something by referring to a presented symbolic representation, "Show me on this drawing of your bedroom, where the bed was in relation to the dresser and where you were standing in the room". DeLoache (1990) in her chapter entitled "Young children's understanding of models" suggests that when we use a scale model of a larger space, young children may have difficulty simultaneously viewing the model as an object in its own right and as a symbol of something else. The ability to use models to explain situations increases gradually with age. Development of the ability to accurately reduce to scale both distances and heights in models is much more complex and takes longer to develop. Scale drawings and models made by children under ten may not accurately depict distances, such as how far away a bed and dresser are, or the exact placement of a door. This is because they have not developed accurate concepts of measurement, nor have they learned how to represent objects on a smaller scale in a relative manner to each other. When questioning children on the stand, everyone must remember that the ability to use representational models varies widely, especially in young children and their use should be considered cautiously.

The difficulty children have using a scale model is much less of a concern when children are permitted on the stand to use dolls or figures to represent themselves or others, or when they are asked to point out on a figure where on their own bodies they were tampered with. Props can be especially useful if children are too shy, or lack the language skills to describe the acts perpetrated (Morgan & Edwards, 1995). Caution should be exercised however with children under three to insure that they understand that the doll figure is meant to represent them. The development of a sense of self-separate from that of others, and the ability to imagine that the doll is representing that self is necessary. Luckily, most children over the age of three can do this competently.

2.6 Children's Tendency to Attribute Knowledge to Adults

It is generally reported that children do not as a rule appreciate that other people do not know something that they themselves know. This is the case even if the interviewer asking them the questions has not witnessed the to-be-remembered event (Saywitz & Nathanson, 1993). This tendency for children to assume the existence of knowledge in adults is related to a ‘social desirability' factor (Robinson & Robinson, 1982), which causes children to view adults as omniscient. Unfortunately, children's assumptions that adults know everything that has happened to them, can have a negative effect on the way they respond to questions by lawyers in the courtroom. On the stand, young children will often assume that the lawyer asking the questions really knows what has happened and so they do not offer spontaneous information. An example of this was the case of a child witness who expressed surprise during a court preparation session, when she was told that she had to identify the accused in the courtroom. "Don't they even know who he is?" she asked incredulously (Anonymous, 2001).

Children neglect to fill in the missing gaps in information when they are explaining what has happened to the court. They tend to offer little or no details in their accounts because they assume that the adult listener knows the details and has the same information as they do. Unfortunately this strategy does not work very well in the courtroom, because filling in the gaps is the child's role on the stand, not the lawyer's role. In order to obtain more complete information from children, direct questions are typically required. In this way, lawyers elicit details about an event from children who provide only the bare facts in their free narrative. The danger of course is when interviewers or lawyers in court use misleading or suggestive questions.

Informing children up front that one does not know what they know has been shown to reduce the suggestibility of misleading questions (Mulder & Vrij, 1996). This strategy should definitely be employed with children on the witness stand before they are asked any questions. In court preparation sessions, telling children that only they have the crucial information because they were there is a useful way in which to empower children to give more complete answers when they get to court.

2.7 Children Don't Know That They Don't Know Things

Another area of potential difficulty for young children on the stand is that they don't know what they don't know. This problem was identified over twenty years ago in a study by Markman (1979) entitled Realizing that you don't understand: Elementary school children's awareness of inconsistency. He was one of the first cognitive researchers to realize that children can have difficulty with "comprehension monitoring". Simply put, they often fail to realize that they have not understood material or questions put to them. For example, in the context of court, when children are asked if they know what a hearing is, they may nod affirmatively, but then if they are asked to explain, their responses can reflect a complete misunderstanding of the term.

In their research, Flavell et al. (1981) demonstrated that at times children fail to realize that they have insufficient information to correctly interpret the world around them. This has important implications for their role as a witness in court. When children are testifying, it is important that they actively monitor their own comprehension throughout the proceeding. When they are responding to a question, they must understand the meaning of the question so that their responses are accurate descriptions of what has transpired.

Although they are generally too young to have what can be described as "higher order" understanding, more specifically an ability to put into context the purpose of some of the questions put to them and the relevance of their answers to their overall credibility, they must at least be able to understand the simple questions put to them.

Children's monitoring of their own comprehension develops slowly over time. Children often need external assistance to help them monitor their comprehension. This is particularly true of children under ten who do not always do it on their own. Obviously one step towards making sure of children's comprehension in court, is to respect the cognitive limitations of children, by asking simple well-phrased questions that are age appropriate. This goes a long way to improving the odds that a child will understand what is being asked and respond appropriately. The other step is to continuously check their comprehension by asking them during the examination-in-chief or cross-examination, to either paraphrase what has been said to them, or explain what they believe the words mean.

Once children are ten and older, there are different issues to be aware of with respect to their ability to monitor their own understanding. Although their ability to monitor their comprehension improves with age, older children tend to be unwilling to share their ignorance with those around them, usually out of embarrassment. Their comprehension must therefore be monitored as well, but in a way that does not embarrass them and allows them the opportunity to concede their lack of understanding.

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