CHAPTER 6: CHILDREN AND THE LAW

In most of the research on children’s suggestibility, children are exposed to one or two inappropriate interviewing techniques. In R. v. Sterling (described in Case Study 6.2), children were exposed to multiple and repeated suggestive techniques, so it is not surprising that their reports were bizarre and, according to the Saskatchewan Court of Appeal, false. Just as a poorly conducted interview can lead to false reports from children, a well-conducted interview can lead to reports that are comprehensive, accurate, and sufficient to convict a perpetrator.

Interviews with Children

When it is suspected that a crime has been committed against a child, at least three questions arise: Is the child in need of protection for the purposes of child protection legislation? Should a criminal charge be laid? Is the child in need of therapy? The answers to these questions usually must come from the child’s report of events, often in the context of a forensic interview. A good forensic interview should have as its core objectives (1) to identify the occurrence of child maltreatment and (2) to identify when an allegation or suspicion of maltreatment is false. The task of interviewing a child, particularly a young child, about suspected maltreatment is daunting. A forensic interviewer must remain cognizant of the possibility of false allegations and, at the same time, the reluctance/inability of some children to provide forensically adequate reports. The seemingly competing goals combined with the special challenges associated with talking to young children may lead (and have led) some interviewers to use techniques that seriously compromise the accuracy and the perceived credibility of the child’s report.

Characteristics of a Good Interview

According to Saywitz and Camparo (2009), “there is remarkable consensus among clinicians and researchers on a wide range of techniques and general guidelines for interviewing children in a forensic setting from a developmental perspective” (p. 104). These principles apply to all interviews with children, not just formal interviews conducted by professionals. We are able to recommend guidelines to police and other forensic interviewers, but what about all of the informal “discussions” with parents, peers, and other interested persons? The effect these informal discussions can have on a child’s report can be profound— and wholly unknown (Principe & Schindewolf, 2012).

Setting of the Interview

Poole and Lamb (2002) suggest that the location of the interview should be child-friendly but not distracting. It takes time for children to warm up to a new environment, and too much stimuli in the environment may extend the time and distract the child.

Provide a Supportive Environment

There is good empirical evidence that non-contingent social support has a positive effect on children’s resistance to suggestions and their accuracy, particularly if there is a delay between the event and the interview (Bottoms, Quas, & Davis, 2007; Carter, Bottoms, & Levine, 1996; Davis & Bottoms, 2002). Such support has been defined as warm vocal tones, supportive eye contact, frequent smiling, actions that build rapport, and a relaxed body posture (as demonstrated in Figure 6.2) Carter et al. (1996) reported that, in response to direct questions, 5-to 7-year-olds were more accurate, made fewer commission errors (that is, they reported fewer false details), and were less suggestible in a supportive interviewer condition than they were in a non-supportive interviewer condition. Similarly, Teoh & Lamb (2013) reported a positive relationship between interviewer support and children’s informativeness in a sample of 75 forensic interviews with children who reported having been sexually abused.

Build Rapport in a Practice Interview

As part of the rapport-building stage, interviewers should give the child a practice interview, in which the child has an opportunity to describe a non-threatening past event in detail. Interviewers should ask about the past event in the same way they will ask the child about the alleged maltreatment. The practice interview serves a variety of objectives. First, it helps to build rapport. Second, it gives interviewers a chance to observe the child’s linguistic competence. This will help interviewers set their own linguistic style. It also lets interviewers know if there is a language shift when the child talks about the alleged abuse (i.e., does the child revert to “baby language” or use language that is too maturesounding) and allows them to investigate reasons for the shift. Third, it lets the child know how they will be interviewed during the substantive portion of the interview and how much information the interviewer wants to hear. Finally, it gives the child an opportunity to practise responding to open questions about past events.

As should be clear from this list of objectives, it is important for the child to spend a considerable amount of time talking during the practice interview. This is encouraged by asking open prompts. If the interviewer asks too many questions, it may have a negative effect on the amount of information provided by younger children during the substantive phase of the interview. To study the effects of using open versus closed prompts in the rapport-building stage, Sternberg et al. (1997) reviewed 51 interviews investigating allegations of child sexual abuse with children between the ages of 4.5 and 12.9. During the rapport-building stage, interviewers used either open prompts or closed questions. The substantive part of the interview was similar for all children. In response to the first substantive question, children who had been given open prompts during the practice interview provided 2.5 times more information than children given closed prompts during practice, and they continued to provide more information in response to open prompts throughout the interview. Teoh and Lamb (2010) studied 75 forensic interviews with children in Malaysia. They found that the number of prompts in the rapport-building phase was negatively correlated with the informativeness of 5-to 7-year-olds, but it showed no relation to the informativeness of 8to 12-year-olds or 13to 15-year-olds (see also Teoh & Lamb, 2013). Roberts, Lamb, and Sternberg (2004) replicated this effect with a lab-based study. Children whose practice interview contained primarily open prompts provided more correct information about an earlier play session than children whose practice interview contained primarily closed prompts. This suggests that the practice interview is important and should not contain too many prompts from the interviewer.

Set the Ground Rules

Children should be told to say only what really happened but to report everything that actually happened. There is good empirical evidence that a promise to tell the truth has truth-promoting effects with children—we will talk about this later in this chapter when we discuss children’s competence. Although children should only report what they remember happened, they should not edit information. Interviewers must let children know they should report everything, even if the details are partial or seem unimportant.

Interviewers should empower children to become active participants in the interview. Interviewers should tell them to ask for clarification if they do not understand, to say “I don’t know” or “I don’t remember” if that is the appropriate response, and to correct the interviewer if something is not right. It is also recommended that they give children a chance to practise using these responses. For instance, the interviewer could ask the child, “When is my birthday?” The correct answer is “I don’t know,” and the child should be encouraged to respond that way. This may seem obvious to us as adults, but children often need permission, encouragement, and practice to use these responses when talking to adults—particularly adults in positions of authority.

There is mixed data on the efficacy of telling children to say “I don’t know” and “I don’t remember” if that is the appropriate response. Poole and Lamb (2002) reviewed several studies and reported that sometimes the instruction increased the number of “I don’t know” responses, and sometimes the instructions were not helpful with younger children. It is not the case that such instructions are sometimes helpful and sometimes innocuous; some researchers have found that they can actually increase omission errors, or the failure to report details.

If too much emphasis is placed on saying “I don’t know” or “I don’t understand” without also training the children when a substantive answer is appropriate, children may overuse the responses as a way of demonstrating how well they are following instructions. Saywitz and Moan-Hardie (1994) provided 7-year-olds with extensive training on the “I don’t know” response and measured the effect on correct and incorrect responses in a suggestibility study. In one experiment they found that the instruction decreased the number of incorrect responses, but it also decreased the number of correct responses. In a second experiment, children were given similar training but were also given extensive training on how to respond substantively if they were able to do so.

In this study, training decreased the number of incorrect responses but did not affect the number of correct responses. Gee, Gregory, and Pipe (1999) reported similar data. Half of the 9-to 10-year-olds and 11-to 13-year-olds in their study were instructed on the importance of saying “I don’t know,” and half were given no such instruction. All children were then asked misleading and non-misleading questions about a recent visit to an interactive museum. Children who had been given instructions committed fewer errors but also reported fewer correct details. In another experiment, when 9-to 10-year-old children were also instructed on the importance of providing an answer if possible, children who had been instructed committed fewer errors, and there was no effect on correct details reported.

Remain Objective and Neutral

Interviewers should remain objective and neutral with respect to the truth of the allegations they are investigating. Biased interviewers can and often do influence the interview in such a way that they are more likely to obtain responses that are consistent with their hypotheses. In research by White, Leichtman, and Ceci (1997), preschool children were interviewed by a trained social worker or an elementary school teacher about a Simon Says game that they had played about three weeks earlier. The interviewers were exposed to some correct and some incorrect information prior to talking to the children. As expected, the interviewers asked misleading questions that were consistent with what they believed had happened, and some children acquiesced to the suggestions. Similarly, Goodman, Sharma, Thomas, and Considine (1995) found that, in response to free-recall prompts, preschoolers reported more inaccurate information when the interviewer had been biased (i.e., informed of false details before the interview) than when the interviewer had not been biased.

Effects of interviewer bias are not restricted to interviews with professionals; they have also been observed when misled parents interview their children (Principe, DiPuppo, & Gammel, 2011). In this study, mothers were asked to discuss with their child a magic show their child had recently attended. Some mothers were told that a rabbit that was supposed to be in the magic show “may” have escaped from its cage (a rabbit had not escaped), while other mothers were not misled. The children of mothers who were misled were far more likely to report that the rabbit had escaped from its cage and that they saw it than children of mothers who were not misled. This is a powerful example of how a rather minor and tentative suggestion to the interviewer can have a dramatic effect on children’s reports.

One mechanism that could lead to inaccurate reports when the interviewer is misled is the use of suggestive questions, but that is not the only one. Interviewers may behave in ways that let the child know what is expected; they may nod or smile when the child says something that is consistent with their hypothesis, and the child may pick up on these subtle cues and respond in the way interviewers expect. Also, interviewers are more likely to recall and accept statements from the child that are consistent with their hypothesis.

Avoid Suggestions

The topic of suggestibility was discussed in more detail earlier in this chapter. At this point it is enough to say that suggestive questions are dangerous and may lead to reports that are inaccurate or are judged to be inaccurate.

Use Appropriate Question Format

Interviewers should use open-ended questions and encourage the child to elaborate. There is convincing evidence that responses to open-ended questions are more accurate than responses to specific questions. The substantive portion of the interview should start with an open invitation (e.g., “Can you tell me why you are here today?”). If the child provides a partial disclosure, the interviewer should use an open prompt to invite the child to say more (e.g., “Tell me everything that happened”) followed by open-ended prompts as appropriate (e.g., “What happened next?”). If the initial invitation does not lead to even a partial disclosure, the interviewer must decide whether to introduce the topic with more directive questions (e.g., “Has anything happened to you that you would like to tell me about?”) or to conduct the interview later.

When it appears that the child has said all that he or she can recall in response to open prompts, there may still be details missing from the report. In this case, some specific prompts may be necessary. The interviewer should begin with “wh” questions (who, what, where, when, but not why). Directive questions can be leading, so it is important to restrict direct questions to details already raised by the child (e.g., if the child mentioned a car, the interviewer may ask “What colour was the car?” or “Where did you go in the car?”).

Although leading questions should be avoided, they are sometimes necessary to obtain all forensically relevant information from a child. When they are necessary, interviewers should avoid the following circumstances, which may heighten the negative effect of suggestive questions (Perona, Bottoms, & Sorenson, 2006):

• Don’t ask leading questions repeatedly in the same interview or over a long period of time.
• Make sure they are not asked by a biased, an emotionally intimidating, or a high-status interviewer.
• Don’t ask leading questions in a coercive way (e.g., “You can play with the toy after you tell me what happened”).
• Don’t ask leading questions about peripheral, rather than central, details.
• Don’t use developmentally inappropriate language.
• Don’t ask very leading questions.

Some question formats should be avoided at any time, including coercive statements (“You can leave as soon as you tell me what happened”), tacked-on questions that ask for verification (“He hurt you, didn’t he?”), negative terms (“Didn’t he hurt you?”), suppositional questions (“Was she mad when that happened?”), and multiple-choice questions (“Was mom or dad in the house?”).

Closing

Interviewers should take care to close the interview well: prepare children for the next step, thank them for their effort (not for what was said), and invite questions.

Repeated Events

Most of the research described in this chapter concerns children’s reports of a unique event. However, about half of all allegations of sexual offences against children involve repeated abuse (Connolly & Read, 2006; Sas, 1993; Sas & Cunningham, 1995). Since the late 1990s, researchers have been studying issues related to reports of repeated abuse. Excellent reviews of research on the theory of children’s memory for repeated events have been done by Fivush (2002) as well as Hudson and Mayhew (2009). The purpose of this section is to apply the research to child witnesses.

In the areas of suggestibility and perceived credibility, children who report repeated abuse are sometimes disadvantaged compared to children who report abuse that occurred once. Those who experience an event repeatedly are likely to be more suggestible, particularly if suggestions are consistent with the theme of the events (Roberts & Powell, 2006) and if memory is measured by recognition rather than recall (Connolly & Lindsay, 2001; Powell & Roberts, 2002; but see Price & Connolly, 2004).

Children who report an instance of a repeated event are seen to be less credible than children who report a unique event when intuitive judgments are made (as is often the case when investigators, interviewers, and triers of fact assess children’s credibility; Connolly, Price, Lavoie, & Gordon, 2008), but they are more credible than single-event children when credibility is assessed using a systematic analysis of verbal content (known as Criterion-Based Content Analysis, which is discussed in the section on credibility) (Blandon-Gitlan, Pezdek, Rogers, & Brodie, 2005; Pezdek et al., 2004; Strömwall, Bengtsson, Leander, & Granhag, 2004).

There is a dearth of research on interviewing children who report repeated abuse. Most recommendations for interviews come from research on children’s memory for single events. However, principles that apply to good forensic interviewing of children who report a single episode of abuse can also apply to children who report repeated abuse (Hershkowitz, 2001), with two possible modifications. If it is known before the interview begins that repeated abuse is suspected, Brubacher, Roberts, & Powell (2011) recommend that the subject of the practice interview be an instance of a benign repeated event. One purpose of a practice interview is to provide the child with an opportunity to practise responding to the kinds of questions that will be asked during the substantive portion of the interview, so if the substantive interview will focus on reporting details of an instance of a repeated event, it would be helpful to include that context in practice. Several forensic interview protocols recommend that children be directed to report a particular instance that they remember best (Hershkowitz, 2002; Lamb, Orbach, Hershkowitz, Esplin, & Horowitz, 2007). A particular instance is investigated because information that is obtained during the interview will inform the charge, and that charge must be particular enough for the accused to raise a defence (Brodie v. The King, 1936; Connolly, Price, & Gordon, 2009; Guadagno, Powell, & Wright, 2006).

Competence of Child Witnesses

In the next two sections we discuss competence and credibility. It is important to keep these two concepts distinct. Competence is concerned with whether a witness is allowed to testify in court (admissibility), while credibility is concerned with how much emphasis (weight) the trier of fact places on the testimony after it has been admitted.

In Canada until January 2, 2006, children (i.e., people under the age of 14 years) had to pass a competency examination before they were allowed to testify in criminal courts. This meant that children were asked questions about concepts associated with telling the truth, such as their understanding of concepts like “truth,” “lie,” “promise,” and the morality of telling the truth (this is known as a truth-lie discussion). If the judge decided that a child understood these concepts and could understand and respond to questions, that child would, typically, be directed to promise to tell the truth and be allowed to testify. Today in Canada, persons under the age of 14 years are presumed competent to testify and shall do so after promising to tell the truth. A truth-lie discussion is prohibited, although a child’s ability to understand and respond to questions may be examined if the court is convinced that there is an issue as to competence.

In several jurisdictions the truth-lie discussion has been abolished (it has disappeared in Canada, England, New Zealand, and Scotland, as well as in all but two states in Australia), but it does still have a place in the forensic process. Most states in the United States continue to require that a judge conduct a truth-lie competence inquiry before a child is permitted to testify in court. Further, in jurisdictions where a truth-lie inquiry is not required by law, one may be conducted during forensic interviews with children (Bala, Paetsch, Bertrand, & Thomas, 2010).

When a truth-lie inquiry is required or allowed, it typically begins with questions about the difference between truth and lies, and about the nature of a promise, and ends with the child promising to tell the truth. It is useful to think about this as a two-step process: the truth-lie discussion (TL discussion), and then the promise to tell the truth. In order to determine if both a TL discussion and a promise to tell the truth are necessary, researchers had to develop procedures by which they could draw false statements from children. Two methods are common: a temptation paradigm and a transgression paradigm. In temptation paradigms, children play with a toy that includes hidden or secret parts. Sometime during the game the experimenter is called out of the room, and the child is asked not to peek or play until the experimenter returns and the game resumes; in spite of this, a substantial number of children peek or play while the experimenter is out of the room. When the experimenter returns, the children are asked if they peeked. In transgression paradigms, the child is in a room with an adult confederate when a transgression occurs (committed by the adult or both the adult and the child). The adult asks the child to not tell anyone what happened. The experimenter returns and asks the child what happened.

Talwar, Lee, Bala, and Lindsay (2002) used a temptation paradigm with 3-to 7-year-old children (Experiment 3). Half of the children engaged in a TL discussion (without being asked to promise to tell the truth) before they were asked if they peeked; the other children promised to tell the truth before being asked if they peeked. Fewer children who had promised to tell the truth lied compared to children in the TL discussion condition. Evans and Lee (2010) also found that a promise to tell the truth, but not a TL discussion, reduced lying behaviour among 8-to 16-year-olds.

In the context of temptation paradigms, when children were asked if they committed a transgression, a TL discussion did not promote truth-telling behaviour, but a promise to tell the truth did. A similar effect was found by Lyon, Saywitz, Kaplan, and Dorado (2001), who used a transgression paradigm with maltreated children. While the experimenter was out of the room, 6-and 7-year-olds with documented histories of maltreatment were enticed to play with the toy by a confederate, who said, “We might get into trouble if anyone found out.” During a subsequent interview, half of the children were asked to promise to tell the truth and half were not (the control group). About 50 percent of the children in the control group lied about playing with the toy, but only 20 percent of the children who promised to tell the truth lied.

Lyon and colleagues have continued to study children with documented histories of maltreatment. In one study (Lyon & Dorado, 2008) they used a transgression paradigm with 5to 7-year-old children. A confederate joined the child and together they played with the forbidden toy while the experimenter was out of the room. When the experimenter returned, one-third of the children were asked to promise to tell the truth, one-third of the children were assured that they would not get into trouble if they told the truth and were asked to promise to tell the truth, and one-third of the children were given no instructions before the interview began (the control group). Honesty scores were higher in both groups that had promised to tell the truth than in the control group. This demonstrates that a promise to tell the truth also promotes honesty when asked about another person’s transgression.

Talwar, Lee, Bala, and Lindsay (2004) also demonstrated the truth-promoting effect of a promise to tell the truth when the incident under investigation is a parent’s transgression. In their study, parents of children between the ages of 3 and 11 accidently “broke” a puppet while the experimenter was out of the room. All parents asked their child not to tell the experimenter how the puppet got broken because the parent might get into trouble. When the experimenter returned, the child was asked four questions about how the puppet got broken. A second experimenter arrived, asked half of the children to promise to tell the truth, and asked all children the four questions again. Of the children who lied in the first interview, those who promised to tell the truth before the second interview were more likely to change their response to an honest answer than children who did not promise to tell the truth.

This research suggests that a formal competency inquiry seems unnecessary, but a promise to tell the truth is important across a range of ages, transgressions, and transgressors.

Credibility of Children

In many cases that involve children as complainants, findings of credibility are determinative at each stage of the process. That is, the first person to whom the child discloses must believe the report is credible before contacting the police; the police must believe the report is credible before launching a full investigation; the Crown must believe the report is credible before deciding to go to trial; and the trier of fact must believe that the report is credible before convicting the accused. Because there is rarely any corroborating evidence, these decisions rest on the perceived credibility of the child. Black’s Law Dictionary defines credibility as “worthiness of belief” (p. 366). Although this definition is wholly unsatisfactory to research psychologists, it captures the amorphous character of credibility. “Using their experiences with human affairs,” the trier of fact is charged with the task of deciding if some, part, or all of a witness’s testimony is worthy of belief (R. v. Beland, 1987, p. 418).

An overall evaluation of perceived credibility involves two constructs: perceived honesty and perceived cognitive ability (Bottoms, 1993; Ross, Jurden, Lindsay, & Keeney, 2003). The relative importance of honesty and cognitive competence in the overall assessment of credibility is central to understanding when younger children will be seen as more or less credible than older children and adults. In a nutshell, when the abilities to encode, store, and retrieve details do not require sophisticated cognitive skills, honesty will be more important, and younger children will probably be seen as more credible than older children and adults. When encoding, storing, or reporting details requires more advanced cognitive abilities, cognitive competence will be more important, and younger children will likely be viewed as less credible than older children and adults. The analysis rests on the level of cognitive sophistication required to accurately remember a past event. When the event occurs in a familiar location and involves familiar people and/or predictable behaviours (as child abuse often does), the level of cognitive sophistication needed to encode, store, and retrieve details of the event is relatively low; if a witness is attempting to be honest, that witness will probably be accurate, at least on central details. On the other hand, if the crime occurred in an unfamiliar context and forensically relevant details are not easily remembered (e.g., a licence plate number, the colour of the light when the car went through the intersection, exactly what the bank robber said), cognitive competence will be more important, and younger children will be seen as less credible than older children and adults.

When honesty is more important, why are younger children viewed more positively than older children and adults? This is due, in large part, to (a) children’s perceived impoverished cognitive sophistication and consequent inability to fabricate a convincing lie concerning events about which they have little knowledge (i.e., sex; Bottoms, 1993), and (b) children’s perceived innate innocence. Indeed, lying is cognitively complex, and the ability to lie convincingly develops throughout childhood (e.g., Peterson, Peterson, & Seeto, 1983). Finally, child victims are seen as innocent and vulnerable (e.g., Meyer, 2007).

In many European countries, an instrument called statement validity analysis (SVA) “is probably the most popular instrument for assessing the veracity of child witnesses’ testimony in trials for sexual offences” (Vrij, 2005, p. 3). SVA consists of three components: (a) a structured interview to obtain a complete statement, (b)a systematic analysis of verbal content (the criterion-based content analysis or CBCA), (c) and a validity checklist, an evaluation of the outcome of CBCA and the testing of alternative hypotheses (Raskin & Esplin, 1991; Steller & Köehnken, 1989). CBCA is the central component of SVA and consists of a set of 19 criteria, listed in Table 6.1. An individual’s statement is rated for the presence or absence of these criteria—the more of these criteria are present, the greater the credibility of the statement. These criteria are subsumed under five subscales: (a) general characteristics, (b) specific content, (c) peculiarities of content, (d) motivationrelated content, and (e) offence-specific details (Raskin & Esplin, 1991; Steller & Köehnken, 1989).

 Although SVA is popular in many European countries, an expert opinion on credibility that is based on CBCA analysis is not admissible in criminal courtin Canada (R. v. Jmieff, 1994; R. v. R. J. H., 2000; R. v. S. C. H., 1995). In R. v. Marquard (1993), the Supreme Court of Canada stated that “it is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion. A judge or jury who simply accepts an expert’s opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. Credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter” (para. 49).

The law is clear; in criminal courts in Canada, experts will not be allowed to render an opinion on the credibility of a child based on CBCA or any other procedure. However, experts have been permitted to testify as to their findings based on CBCA in child protection hearings (e.g., Newfoundland (Director of Child Welfare) v. B. P., 1998; Children’s Aid Society of Halifax v. PM. H., 2006; Children’s Aid Society of Inverness-Richmond v. S. S., 2009, but see Catholic Children’s Aid Society of Toronto v. T. B., 2010, for a contrary decision).

Some scholars have raised concerns about using CBCA as the basis of courtroom testimony. Based on a review of 37 studies of CBCA, Vrij (2005) concluded that credibility assessments based on this instrument are better than lay judgments; however, they are insufficiently precise to form the basis of expert testimony (see also Lamb, 1998).

An alternative approach to credibility assessment that is gaining traction is based on reality monitoring (RM) theory ( Johnson, Hashtroudi, & Lindsay, 1993; Johnson & Raye, 1981). According to this theory, memories of real and imagined events contain different information. An imagined event will contain more information about thoughts and reasoning. An event that is real, on the other hand, will contain more perceptual information (i.e., visual and auditory details, as well as details of taste, touch, and smell), more semantic information (i.e., meanings and connections), more contextual information (i.e., details relating to time and place), and more affective information (i.e., details of feelings and emotions during the event). According to RM theory, because memories of real and imagined events contain different information, reports of them will also contain different information. There are fewer studies of RM than of CBCA, but the findings are generally positive (Alonso-Quecuty, 1992; Hernandez-Fernaud & AlonsoQuecuty, 1997; Johnson, Foley, Suengas, & Raye, 1988; Sporer, 1997; Strömwall, Bengtsson, Leander, & Granhag, 2004; but see Roberts & Lamb, 2010).

Testimonial Supports

Any witness may testify with the aid of testimonial supports, to reduce the trauma of testifying in court and to help the witness to provide a full and candid account of the allegation. Some examples of testimonial supports include having the testimony presented in court on closed-circuit TV (CCTV) while the witness testifies from outside the courtroom (Criminal Code s. 486.2), testifying from behind a screen (Criminal Code s. 486.2), or testifying with a nearby support person (Criminal Code s. 486.1(1)) (Figure 6.3a and 6.3b – See Canvas). Section 715.1 of the Criminal Code allows a videotaped interview to be admitted to replace the witness’s evidence-in-chief (i.e., responding to questions from the Crown). Screens, support persons, and CCTV must be permitted if the witness is under the age of 18 years at trial and allowing the testimonial support would not interfere with the proper administration of justice. A pre-recorded videotape must be allowed if the witness was under the age of 18 at the time of the alleged offence and allowing the videotape would not interfere with the proper administration of justice.

When videotaped evidence is tendered, the videotape must have been made “within a reasonable time of the incident,” and the witness must “adopt the contents of the statement.” A “reasonable time” is not precisely defined; in R. v. L. (D. O.) (1993), the Supreme Court of Canada directed trial judges to consider the ability of the forensic interviewers to make a videotaped statement and the effect the actual delay from the alleged crime to the videotaped statement may have had on the witness’s memory. “Adopting the contents” means that witnesses recall having made the videotape and agree that they were being honest at the time. Note that the child does not have to recall the incident itself (R. v. F. (C. C), 1997). Multiple supports may be used (R. v. Flores, 2007).

A judge has the power to deny the use of any testimonial support if using it would interfere with the proper administration of justice. The proper administration of justice could be compromised if, for instance, the defence intends to cross-examine the child with the aid of documents that will be difficult for the court to review on closed-circuit television (R. v. G. A. P., 2007), or if testimonial supports may decrease the perceived solemnity of the occasion and cause a child to be disrespectful of the court and the process (e.g., R. v. Black, 2007). In these situations, a different testimonial support may be ordered (e.g., a screen blocking the child’s view of the accused instead of CCTV), or testimonial supports may be denied.

It has been argued that testimonial supports infringe fundamental rights under the Canadian Charter of Rights and Freedoms: namely, the right to a fair trial (s. 11(d)) and the right to fundamental justice (s. 7). The Supreme Court of Canada has heard the Charter arguments, and its clear ruling has been that testimonial supports do not infringe these rights (R. v. J. Z. S., 2010; R. v. Levogiannis, 1993; R. v. L. (D. O.), 1993). Unlike in the United States, where the confrontation clause in the Sixth Amendment of the U. S. Constitution is infringed when some testimonial supports are used, in Canada the accused does not have a Charter right to face the accuser, and the Supreme Court of Canada declined to read it into the right to a fair trial.

Testimonial supports were initially introduced to help the court obtain a full and candid account of the alleged offence. Parliament accepted that the trauma associated with testifying in open court, particularly when facing the accused, could interfere with the truth-seeking function of the court because it could lead to evidence that was less than complete and candid (Bala, 1999; Hall & Sales, 2008). Reducing stress by using testimonial supports would help the discovery of truth. Importantly, testimonial supports were and continue to be allowed if their use does not interfere with the proper administration of justice.

Stress and Testifying

The use of testimonial supports for children raises questions about the stress of testifying in court. For example, is testifying in court stressful for children? If so, does the stress impair children’s ability to testify and does the stress have long-term consequences? Do testimonial supports alleviate some of the stress, and do they interfere with the administration of justice—in this case, to the accused person’s right to a fair trial? Researchers have looked into these questions.

Stress associated with testifying can occur at two distinct points: before trial (anticipatory stress) and at trial (testimonial stress). In terms of anticipatory stress, Goodman et al. (1992) studied 120 children who had alleged child abuse; 60 of them testified and 60 did not. (The children involved in the study were matched on abuse severity, age, and pre-court behavioural adjustment.) Many of the children expressed fear of the prospect of testifying and, in particular, fear of the possibility of facing the accused. Quas et al. (2005) followed up with these children 12 to 14 years later and reported that anticipatory stress was associated with mental health problems in adulthood. Virtually every other relevant study has concluded that anticipatory stress is a major problem for children around the time of trial, and it may lead to mental health problems in adulthood.

In the case of testimonial stress, there is good empirical evidence that testifying in open court and facing the accused is a significant source of stress for some children. Other sources of stress among testifiers include lack of maternal support, testifying multiple times, lack of corroboration, and lengthy cross-examination (Goodman et al., 1992). Perhaps the most potent source of stress for a child testifying in criminal court is the need to describe the allegation in the presence of the accused, particularly if the accused is known to the child (Sas, Austin, Wolfe, & Hurley, 1991; Sas, Hurley, Hatch, Malla, & Dick, 1993). As discussed in more detail below, these stressors can impair a child’s ability to provide a full and candid account of the event (Hall & Sales, 2008), and they can have a significant negative impact on short-and long-term mental health (Goodman et al., 1992; Quas et al., 2005; Sas et al., 1993).

Evidence from actual trials and experiments indicates that stress associated with testifying in court can be reduced with the aid of testimonial supports. Hamlyn, Phelps. Turtle, and Sattar (2004) reported that, in the United Kingdom, 87 percent of the children who were offered CCTV used it, and 90 percent of those children reported that it helped because they did not have to face the accused. Davies and Noon (1993) also reported that child witnesses in criminal court who testified live were judged to be more unhappy than children who testified via CCTV. Similar conclusions can be drawn from experimental studies. In Goodman et al. (1998; discussed below), children preparing to testify via CCTV reported less stress than children preparing to testify in open court. In Landström and Granhag (2010), children reported being more nervous and said that testifying was more difficult live than via video.

Administration of Justice

Researchers have also examined the question of whether the accused’s case is prejudiced when children testify with the aid of testimonial supports. Goodman et al. (1998) conducted perhaps the most ecologically valid experiment on testimonial supports. In their study, 88 6and 8-year-old children participated, individually, in a play session with a male confederate. The children each starred in a movie, during which they put on a costume and the experimenter placed stickers on the child’s bare flesh (guilty condition) or on the child’s clothes (not guilty condition). Two weeks after the play session, each child came to an actual courtroom and was told that the experimenter may have done something wrong: he should not have made a movie of stickers being put on bare skin, and a judge wanted the child to testify about what had happened. Actors played the parts of the judge, the prosecutor, and the defence lawyer. In groups of 9 to 12 persons, community members listened to the child testify either live in the courtroom or via CCTV. The trial condition affected actual accuracy in such a way that children were more accurate in the CCTV condition than in the live condition. However, the community members’ perceptions of children’s accuracy were lower in the CCTV condition than in the live condition.

The methodology in Orcutt, Goodman, Tobey, Batterman-Faunce, & Thomas (2001) was very similar. In the live condition, the child was judged to be more accurate, more attractive/intelligent, more honest, and less likely to fabricate. Importantly, mock jurors were more likely to vote to convict the accused in the live condition than in the CCTV condition. Neither of these excellent studies found that the use of CCTV had a detrimental effect on perceptions of the accused (i.e., there was no evidence that the accused looked more guilty when the child’s testimony was delivered via CCTV). In fact, testimony via CCTV may reduce the chances of a conviction by reducing perceptions of the child’s accuracy.

To explain the differences in perception of child witnesses in the two types of testimony, Landström and Granhag (2010) proposed that perceived credibility is influenced by the vividness of the report. A more vivid report is seen as more credible than a less vivid report. Two factors that make a report vivid are temporal and locational proximity. That is, a report that is closer to the viewer in time and space is seen as more believable than a report that is more spatially and temporally distant. In terms of children’s evidence, the spatial and temporal distance is greatest between live and video, intermediate between CCTV and video, and smallest between live and CCTV. To test their theory, Landström and Granhag compared ratings of children’s testimony that was viewed live, via CCTV, or via videotape. Children were viewed most favourably in the live condition, followed by the CCTV and video conditions. Consistent with the vividness hypothesis, the biggest differences were between live and video conditions, the second biggest differences were between CCTV and video conditions, the smallest differences were between live and CCTV conditions.

Another measure of vividness, arguably, is memorability. A more vivid report should be remembered better than a less vivid report. In Landström et al. (2007), mock jurors viewed children’s reports of a staged event (similar to the one described in Landström & Granhag, 2010) via CCTV or live and measured their perceptions of their memory for the child’s report and their actual memory of the report. Relative to mock jurors who viewed the child’s testimony on CCTV, those who viewed it live rated their memories to be “better,” more complete, and more detailed. When mock jurors were asked to report the child’s testimony verbatim, those in the live condition were more accurate than those in the CCTV condition.

The law in Canada recently changed to allow testimonial supports upon request for any witness under the age of 18 unless the judge finds that testimonial supports in the circumstances may interfere with the administration of justice. This is consistent with the data on testimonial support—they may lead to a more accurate report, and there is no evidence that their use prejudices the accused. In fact, use of testimonial supports may have a detrimental effect on the perceived credibility of the child.

Child Advocacy Centres

As should be clear from this chapter, the needs of child witnesses are complex and require the coordinated effort of many diverse professionals. In the past few years, the federal government has made a significant financial commitment to young victims of crime. Funding has been used to establish child advocacy centres (CACs). As of April, 2013, six CACs are fully operational in Canada, and 19 others are in various stages of development (McDonald, Scrim, & Rooney, 2013). CACs provide a multidisciplinary and integrated approach to children who are involved in the justice system. The services available may include law enforcement, child protection, prosecution, mental health support, advocacy, forensic interviewing, and medical evaluations. Not all CACs offer all of the services, but they share a single goal: to reduce the trauma that child victims and witnesses of crime experience when involved in the criminal justice system.

Summary

In the past few decades, dramatic changes have occurred in law and in psychological research that have moved us from being a country where “sexual offences involving children were virtually impossible to prosecute to conviction” (Van Tongeren Harvey & Dauns, 2001, p. 148) to being a country where children may, and often do, testify with the aid of innovative and effective testimonial supports, and where crimes against children are prosecuted to conviction. When children are interviewed in ways that are consistent with evidence-based recommendations, they can report a substantial amount of correct information about things that happened to them in the past. Children can and will report honestly, and a promise to tell the truth promotes truthful reports in children as young as four years old. However, children’s reports can be compromised when inept and/ or partisan adults are involved. When exposed to biasing influences, children may report false details of a past event or entire events that did not happen. Testifying in open court while facing the accused can be terrifying and can lead to reports that are less complete and candid than would otherwise be available. What can we take from this? Persons working with children in the criminal justice system should be well trained and should always conduct interviews in ways that are consistent with generally accepted and evidence-based practices. Failure to do this is our failure, not the failure of children.

Key Terms

closed prompts

commission errors

competence

credibility

omission errors

open prompts

recent complaint doctrine

children’s suggestibility

testimonial support

truth-lie discussion

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Suggested Readings and Websites

Bala, N., Lindsay, R. C. L., & McNamara, E. (2001). Testimonial aids of children: The Canadian experience with closed circuit television, screens and videotapes. Criminal Law Quarterly, 44, 461–486.

Ceci, S. J., & Bruck, M. (2007). Loftus’s lineage in developmental forensic research: Six scientific misconceptions about children’s suggestibility. In

M. Garry & H. Hayne (Eds.), Do justice and let the sky fall: Elizabeth Loftus and her contributions to science, law, and academic freedom (pp. 65–77). Mahwah, NJ: Lawrence Erlbaum.

Department of Justice, Canada. (2011). Child and youth victims and witnesses of crime in Canada. Retrieved from www.orcacentre.ca/research-a-information

/reports-and-discussion-papers.

Centre for Children and Families in the Justice System: www.lfcc.on.ca. Child and Youth Advocacy Centres: http://cac-cae.ca/.