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:
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“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.
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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.
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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.
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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.
