Index

June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2020 J.E. Côté

CROSS-EXAMINING CHILD WITNESSES

Many lawyers are well used to cross-examining adults, or seeing their adult witnesses cross-examined. But if the witness is a child, the usual sort of questions may have surprising results. Often experienced lawyers do not realize that. Harm can result though everyone in the courtroom has good intentions. Incorrect answers can come from a completely honest child witness.

Lawyers are so used to the usual sort of questions to witnesses that it rarely occurs to most that such questions could be puzzling or ambiguous. Or that they could seem to ask about a different topic entirely. Or ask for a different type of answer. That is a problem with many adult witnesses, and even more likely with a child witness.

A question may puzzle or mislead almost any witness if it is long, complex, negative or double negative, conditional, or subjunctive. Such questions are quite common in Canadian courtrooms. They often occur when counsel starts to ask a question before planning it. If the witness is a child, the results can be harmful to everyone. Serious misunderstandings can occur.

One expert on child witnesses gave examples along the following lines in a talk a few years ago:

  1. “Q. Do you remember Mr. Smith coming in and telling you to leave? A. Yes” The child may think that the question is simply whether he or she remembers, and so “yes” may mean that “I remember”, not that the lawyer’s description of the event is accurate.
  2. Putting a factual suggestion to a child is often hard for the child to understand. And if the question is negative (“You did not get anything to eat, did you?”) that makes it worse.
  3. If the child does not understand the question, usually he or she will not explain that. The child may answer nonsense to a question not understood.
  4. All negative questions are difficult, or can produce ambiguous answers. Those required by the rule in Browne v. Dunn are worse. A leading question in cross-examination expected to produce a denial, and asked for form, is a subtle concept. There was a suggestion a few years ago to abolish that rule for child witnesses. I imagine that the traditional wording of “I suggest to you that ...” or “I put it to you that ...” might completely mystify a child.

An answer actually good for counsel obtained through a somewhat difficult question, allows opposing counsel, the judge, or the jury to wiggle away or march past that answer.

I understand that the Bar of England and Wales developed a website for counsel in cases with child witnesses. I have not found the site after a quick look, and it may be open only to members of that Bar. But see many papers cited at https://www.theadvocatesgateway.org/resources. And the internet offers a large amount of public material about child witnesses and their cross-examination, some by psychologists, others by various Canadian and American bodies.

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.