The Interaction Between Children's Developmental Capabilities and the Courtroom Environment: The Impact on Testimonial Competency
Conversational speech involves a give and take of questions and answers. The question and answer format used in court during examination-in-chief and cross-examination is not generally how young children converse. They like to introduce their own topics, ask their own questions and express how they feel, much of it unsolicited. They have difficulty just answering the questions put to them, and they do not like to wait for their turn to speak. This of course is not acceptable behavior in a witness, and often times children are cut off in mid sentence when they are testifying. The less formal "give and take" of everyday conversational speech, is quite different than the interrogation they are subjected to on the stand.
Though children demonstrate an increase in the number of actual words they can produce by the time they are in elementary school, they still need to have simple sentences put to them. The general rule of thumb is that you match the number of words in the question with the age of the child. This unfortunately is not standard practice, as a review of child abuse court transcripts by Walker (1993, 1999) has illuminated. She was appalled by the complexity and length of the questions put to children by lawyers and she pointed out that "
bad questions hurt not just the child, but those who stand both with and against the child" (1993, p. 80).
Greenstock and Pipe (1996) in their analysis of forensic interviews of preschool and primary aged children noted that children have great difficulty with tag questions (e.g. "She wanted you to go with her, didn't she?" or "There were many people sitting in the dark room, is that a fact?"). They also have difficulty with negative termed questions (e.g. "Didn't you feel angry at him?"). Children only begin to understand those types of questions when they are around eleven or twelve years of age.
Saywitz and Nathanson (1993) suggest that children under 12 generally have problems when questions ask more than one thing at a time. For example, if an eight year old child is asked the following question, "On Monday night, you did, didn't you, go to your baby-sitter's house after school and have ice cream, before you went to the store with your dad?"), she will not know how to answer. It is apparent to many professionals who work with children that a young child will have difficulty breaking down such a question and answering each part separately. In a question like the above, how can the questioner know if the child does respond with a ‘yes', what part of the question the "yes" refers to? It is highly recommended that asking several simple questions in order to get the same information is a better strategy.
It is no secret that the language employed in the courtroom is anything but everyday language. Walker (1993) describes the forensic context as one where the exchange of information follows unique and unfamiliar rules for socio-linguistic interaction in an unfamiliar setting. Children routinely are expected to respond to age inappropriate questions, containing language that is too difficult and sentences that contain multiple parts.
If one were to review court transcripts of child witness testimony, it would likely reveal that words such as "frequency, remind, recollection, refresh, estimate, recall, expect, view, regular, routine, occupation, interests, respond, time frame, address, surname, relation, related", and phrases such as "my esteemed colleague, my duty prevails me, without consideration of the facts, notwithstanding what you've been told", to name but a few, are routinely used by lawyers during their examination of children. These words and phrases are not typically used or understood by children in their everyday language, yet are often used in court during questioning.
One obvious recommendation is that more effort be made to tailor the language employed in the courtroom to the child's individual stage of development. This involves some assessment of the child's communicative abilities before they testify, and knowledge and motivation on the part of those asking the questions to phrase them appropriately. Table 3 offers some guidelines from the literature on language acquisition in four age groupings: preschool children, early primary school aged children, late primary school aged children, and early adolescence.
|Language Skill||Preschool (3-5)||Early Primary (6-9)||Later Primary (10-12)||Early Adolescence (13-14)|
|Understanding of grammatical rules of language||No||Unsophisticated||Yes||Yes|
|Total Lexicon of words||Limited||Adequate||Yes||Yes|
|Understanding of higher order referents||Minimal||Developing||Yes||Yes|
|Understanding of complex sentences||No||With difficulty||Yes||Yes|
|Proper use of prepositions||Minimal||Developing||Yes||Yes|
|Availability of adjectives and adverbs||Limited||Developing||Yes||Yes|
|Familiarity with different tenses||Limited||Yes||Yes||Yes|
|Fluidity of speech, proper pronunciation||Varies greatly||Yes||Yes||Yes|
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