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

7. RECOMMENDATIONS FOR THE SYSTEM: HOW TO OBTAIN GOOD EVIDENCE FROM CHILDREN

Child developmental research generally supports the involvement of children in the courtroom, suggesting that children have forensically relevant information for the court. The research findings also indicate that there are many aspects of courtroom procedure that must be targeted in order to improve the quality of children's evidence in court. The developmental research findings on language acquisition and cognitive abilities, speak dramatically to the need for court persona to modify the complexity and nature of questions put to children in the witness box. Recent findings on the emotional vulnerability of child witnesses demonstrate the importance of handling child witnesses in a sensitive and enlightened way, so that children succeed in sharing their victimization experiences with the court. Child witnesses are simply not adult witnesses.

Unfortunately even before child complainants open their mouths to speak on the stand, the investigative interview that was carried out months earlier may preclude a positive outcome in their case. Increasing criticism has arisen over suggestive interviews of children. It is therefore incumbent on mandated agencies such as the Children's Aid Society and the police to conduct proper investigative interviews that do not taint children's evidence, but maximize the probability that the child will tell the interviewer what transpired. In order to accomplish this, more effort must be devoted to better training on interviewing. A number of recommendations are offered in this section.

Professional training of those individuals conducting the forensic interviews must take place to insure that the interviews are properly done: Adoption of widely known acceptable interview protocols now available should be mandatory.

Research conducted on children's knowledge of the legal system has uncovered a surprising naivety about the process. This is because of a lack of specific domain knowledge in children of all ages with respect to the criminal justice system. Children simply do not understand much of the legal terminology employed, nor are they familiar with the formal procedures that are carried out. They need assistance to navigate the system in general, and when on the stand they need strategies to resist inaccurate suggestions that are posed to them. They require warnings to only answer what they know and remember to be accurate. The importance of court preparation for children cannot be overstated.

It is strongly recommended that court preparation services be offered to all child witnesses so that they are more equal participants in the process.

Because the testimonial performance of children is most definitely an interaction between their language and cognitive abilities on the one hand and the nature of the questions they are asked on the other, it is necessary for the court to exert some control on the way in which children are questioned on the stand, either during the inquiry, the examination-in-chief, or the cross-examination. There appears to be great variability amongst legal professionals in the ability to properly question children. As a result, many child witnesses are subjected to developmentally inappropriate questions that confuse them and undermine their performance.

It is recommended that mandatory training sessions be developed for professionals who interact with child witnesses in court, on the use of age appropriate vocabulary and appropriate questions.

A trial is of course adversarial, and as such the goal of the defense lawyer will be to discredit the child witness's testimony on the stand. In this climate, there is always the danger that questions put to children are purposefully crafted to either exert pressure on them so that they tend to agree with erroneous facts, or confuse them by talking above their level of comprehension. The research clearly points to the discrepancy that exists between an adult's and a child's language skills, and the fact that there is the likelihood of misrepresentation of children's evidence when they are confused by the nature of the questions put to them. The court must voice concern when inappropriate and misleading questions are asked of children during a cross- examination. There is a need for clear guidelines that stipulate an acceptable approach to obtaining information from children during court proceedings. These guidelines should include a range of appropriate examples of questions, which can be used to illicit details about an event from children of different age ranges, without suggesting misinformation or exposing a bias.

A manual should be created which outlines the nature and type of questions that can be asked of child witnesses of varying ages on the stand: Compliance with this guideline should be encouraged in court.

The research to date strongly supports the use of provisions to accommodate child witnesses on the stand. In particular, closed circuit television and screen provisions, availability of support persons, and admission of videotaped statements in lieu of examination-in-chief, are all important because they can reduce the anxiety of child witnesses.

It is recommended that courts routinely accommodate children through legislative provisions to reduce their stress level and improve their testimonial competency.

Much research has taken place here in Canada and in other countries on the value of having children undergo an inquiry into the oath. The general consensus appears to be that the inquiry into the oath is a cumbersome overly abstract process, which is not in the end helpful in insuring that children tell the truth in court.

It is recommended that the courts dispense with the inquiry into the oath for children under fourteen and in its place simply have children indicate that they will tell the truth on the stand.

The longer matters take to resolve in court, the more difficult it is for child witnesses to remember all the details surrounding what has happened to them. Research has shown that anticipatory anxiety in the months leading up to a court hearing can be unbearable for many child witnesses, as well as impeding their performance. For the sake of the quality of the evidence offered to the court, as well as the emotional well being of children, cases should not be permitted to drag on for months and years.

It is recommended that everything be done to expedite matters involving child victims. Dispensing with preliminary hearings and moving right to trial may be one way of shortening the time between the charge and outcome.

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