Recently Judge Samuel A. Thumma and Chloe Braddock wrote an article entitled “Ten Tips for How Judges Can More Effectively Communicate with Children in Court,” that is directed at judges but is of value also for trial lawyers. The following is their article.
Courtrooms are not particularly comfortable places for most people. This is especially true for children. When children are involved in court proceedings, it is important that they understand the questions they are asked and that what they say is understood. Adults often do not understand children because children’s language and processing skills are different and are still in the early stages of development given their limited experience with language.1 If a child is not understood, the truth-seeking process gets distorted, and the purpose of the judicial process is undercut.
Even very young children are capable of accurately recalling events.2 Despite this, several experts have noted that communication errors with children in court are widespread.3 This communication gap is often attributed to the failure to question children appropriately and the fact that some questions asked of children use confusing language.4 It is important that judges do their best to ensure questions are tailored specifically for children to bridge this gap and allow children to understand and be understood.
To address this issue, some countries have attempted various alternative means for children to testify unknown in the United States. For example, in 1993, South Africa began using an intermediary when child witnesses were involved. The intermediary is an impartial professional trained to work with children who would rephrase questions to children in a separate room in order to, among other things, facilitate effective communication.5 This intermediary concept has proven helpful to aid the child’s understanding of questions being asked, and therefore facilitates more accurate and responsive answers. In addition, it helps make the child more comfortable during the process.6 As another example, in Canada, children often are interviewed outside of court at a “Child Advocacy Center,” and then have video assist testimony, so the child can answer questions in a way where they will be comfortable.7
Particularly where such alternative means are not used—as is the case generally in the United States—judges must be vigilant to ensure that child witnesses are understanding questions and being understood. There is a wealth of literature on the unique aspects of children as witnesses. The American Bar Association Center on Children and the Law, established in 1978, published a Handbook on Questioning Children. Written by Anne G. Walker, first published in 1994 and now in its third edition, this Handbook provides helpful guidance in questioning child witnesses and things to look out for in answers by child witnesses, includes references to nearly 200 articles on the topics, and discusses other important principles of questioning children in court. Focusing on selected portions of the Handbook and highlighting a small portion of that significant research, this article suggests 10 ways in which judges can speak with children so that they will understand and be understood, and what to do when judges suspect a child may not understand a question that is being asked. Although the focus here is on judges, these same tips may apply, in varying degrees, to attorneys asking children questions in court.
The most important thing to understand about speaking with children is that children are not just small adults—the language they speak is completely different from the language of adults. Children often do not understand the intricacies of language, and although they may use the same words as adults, these words often have different meanings, causing confusion.8 Children learn language by observation, including looking at the context in which words are used; it takes time and experience to pick up on the intricacies of language. For example, a child could learn that “Are you okay?” is asking about how they are feeling, not if they are “okay” at what they are doing, or more generally that they are an “okay” person. Understanding these intricacies is hard for children, and it may be especially difficult for children who have been abused or neglected. To help account for, and narrow, this communication gap, what follows are 10 practical tips on adapting to the child’s language to help make sure all are understood in court.
Use Simple Words
Using simple words seems obvious. Children will not understand complicated, long, or unfamiliar words. But language used in court often fails to be language that children understand. Studies have shown that one in four (or more) questions posed to children is too complex.9 Yet one study indicates children only ask for clarification or mention that they do not understand for just 1 percent of the questions they are asked.10
In everyday life, when speaking with children, most adults “modify their language so that children can understand what they say.”11 Although this same approach should be used in the courtroom, often that does not occur. One linguist analyzed a transcript of a five-year-old witness in a murder trial and noted that “there were a lot of big words like ‘opportunity,’ ‘subsequent,’ ‘amplified,’ and ‘included’”; one question asked her about “other people’s opinions” and another asked, “did you get the impression that . . .”. At one point, the five-year-old witness was handed some images and asked, “Can you look at these photos and tell me the color of the skin of the people depicted?”12 What are the odds that any five-year-old witness to a murder could understand, with any precision, what “depicted,” “impression,” “amplified,” “subsequent,” and “opportunity” meant, let alone that the witness understood all of those terms without any need for clarification?
That children typically do not seek clarification is particularly significant. There are several reasons why children do not say that they do not understand a question: They may not realize that they do not understand; they may not realize that they are allowed to ask for clarification; they may not want to admit that they do not understand; and they may feel pressured to not say that they do not understand given the perceived power difference between the child witness and the person asking the question (something that happens with adult witnesses).13
For all these reasons, as a judge, it is both important to use only simple language and to make sure that others who are asking children questions do the same. It also is important to be alert to when a child may not understand questions, recognizing children typically will not seek clarification. This is particularly true for acronyms and legal jargon. In juvenile court, for example, legal terms (adjudication, disposition, restitution, termination), acronyms (ICWA, UCCJEA, JIPS, and DOJC), and jargon (“What, if anything . . .,” “I don’t disagree with that statement,” or “Would you disagree with . . .”) may roll off the tongue of judges and lawyers like a second language.14 But there is no reason that most children would know that second language or have any idea what the terms mean. A judge taking the time to explain the concepts, briefly, to children involved in a court proceeding will further help bridge that communication gap.
Use Simple Syntax
Along with using simple words, using simple syntax, or the arrangement of words, may be even more important for children to understand what happens in court. The suggestion here is to make sentences as simple as possible. What makes sentences simple (or complex) is not necessarily their length, but how long it takes the listener to process the sentence.15 A key to using simple sentences is to use one subject and one verb and to keep the subject and the verb next to each other.
In practice this would sound like “Where was your dad at the time?” instead of “After this happened, did you know where your dad was?” The first question is much easier to process because it avoids clutter. It keeps the main idea (where was dad) at the beginning of the sentence. This helps a child know what he or she is supposed to answer, resulting in less processing time. Minimizing processing time by keeping sentences simple and starting with the main idea will help a child understand the question and answer properly.
Use Positive, Active Language
To illustrate this suggestion, consider two questions: “How did it feel when he hit you?” and “Did it not hurt when you were hit by him?” The first is easier to understand, even for adults, and it is especially easier for children to understand. These sentences illustrate how using positive, active language adds clarity and ease of understanding.
One reason is that the negative language of “did it not hurt” is difficult for children to understand. One study found that children’s answers are correct only 50 percent of the time when answering a question that used either single or double negatives, but are correct between 70 and 100 percent of the time when the question used positive language.16 The more negative words or phrases there are, the longer the question takes to process, meaning positive language is the clearer (and better) alternative.
Another reason why the first question is easier to process is that it avoids passive language; “he hit you” is easier to process than “you were hit by him.” Studies suggest that young children often ignore passive words and just process a sentence by the order of the words.17 As applied, if a child ignored passive words in the second alternative, “you were hit by him” would become “you hit him.” The odds of getting an accurate answer significantly decrease when viewed this way. Moreover, even when children do not ignore passive words, using passive words makes it harder for children to process the question. Simply put, to further clarity, use positive, active language and avoid negative and passive language.
Limit Questions to One Main Idea
When there are too many parts to a question, it can be difficult to keep track of and process all the parts. Especially for children in an unfamiliar environment, keeping track of multipart questions can be nearly impossible.18 One study found that, when multiple questions are combined, children give a relevant answer just 60 percent of the time.19 This is especially problematic given research showing the child will likely not ask for clarification, meaning an irrelevant (or incorrect) answer will follow.
Consider how the following examples might confound a child witness and how they might be improved: “But do you recall going to the hospital and will you tell us why you went to the hospital?” “Did somebody ever tell you that you were, when, this is a person that would babysit you and that you were afraid of Ettie Sue that Ettie Sue had a stick and she was going to get you?” Both questions, and many others like it, were used in court. Their compliance with the rules of evidence is dubious, and they are a challenge to process. But what if there is no objection and a child answers “yes” (or “no” for that matter)? What does that mean and what does that prove? And what is the likelihood that the child answered the entirety of the question, or just latched on to one part of the question? Limiting a question to one main idea can avoid these conundrums.
Another thing to avoid is embedding a question or statement into another question. One of the more common examples of what should be avoided is the use of clauses beginning with “who,” “where,” “which,” and “that.”20 Examples include things like “Do you recall whether the girl who was wearing the dress was awake or asleep?” or “Was the movie that you liked playing that night?” Sometimes embedding these descriptive statements into a question may be necessary, but most times it is not. Typically, two questions dealing with the issues separately adds clarity.
Another way to add clarity is to use one tense throughout. Consider the question “did anything happen to your pet cat on this day?” This shifts the tense from past (did happen) to the present (this day), which can be confusing. If the witness answered “no,” it could mean either that nothing happened to the pet cat on some day in the past (which could be a relevant answer) or that nothing happened to the pet cat on the day the question was asked (i.e., the day the witness testified), which almost always would be a useless answer.
Children are very literal in their use of language.21 To them, each word has a very specific meaning, and they may have a hard time thinking more broadly. Examples abound. A house may have a meaning that excludes an apartment; a car may have a meaning that excludes a truck; and touch may have a specific meaning that excludes a punch. What a word means to a child may depend on the child, but one thing that is consistent is that children often think quite literally. Consider this exchange involving two attorneys and a five-year-old witness:22
DEFENSE COUNSEL: Do you remember them [Don and Martha] having you build this kind of block place to supposedly be—excuse me. You had to build some blocks together, didn’t you?
ANSWER: It wasn’t blocks
Q: They weren’t blocks?
A: They were . . . They were little pieces of triangle wood.
Q: I’m sorry, I didn’t—I didn’t understand. Did you say “try wood”?
Q: Oh, I’m sorry. They were triangles?
Q: So, they were kind of triangles, is that what they were?
Absent the disclosure about “little pieces of triangle wood,” and the resulting follow-up, the testimony would have appeared to be that the child did not play with blocks (but only because, in the child’s mind, a block is not a triangle).23 As another example, a child was asked, “Did you ever put your mouth on Daddy’s penis?” The answer was no “because it did not reflect the literal truth. It wasn’t the child who did the putting, it was Daddy.”24 Or if a child was asked, “Are you in school?” and the answer is “no,” it may be because the child was in court (not in school) when asked the question. The answer, however, could be viewed as indicating the child was not enrolled in school, necessitating follow-up questioning to clarify the testimony and avoid ambiguity.25
When asking questions of a child, thought should be given about how the child will think, just in case the child might translate words to mean something else. If a judge suspects that there could be a misinterpretation by the child, asking a follow-up to clarify can help make sure that the child understands correctly.
Be Specific and Avoid Pronouns
Day-to-day language is often ambiguous. That is normally acceptable as we have similar experiences to those around us that help us understand what we mean.26 Children, however, are different. They lack this experience and knowledge, and they may need specific information or they will not understand a question. Even phrases that seem very easy to understand, such as “it’s cold in here,” can be interpreted in more than one way (most people understand that phrase to mean that the temperature of the room is cold, but someone could interpret it as people’s demeanor being cold, or perhaps in other ways).
Similarly, while pronouns frequently are used in day-to-day conversation, when used in questioning in court, pronouns can be very difficult for a child to track.27 One study suggests anything like a full mastery of pronoun use may not come until middle-school years or beyond.28 Because of this, pronouns should be avoided when questioning children. Using, instead, the name of the person or object can avoid confusion and add clarity.
Framing questions is like giving a set of questions a title: It makes clear the focus of the question. In practice, it might be as simple as something like “Okay, we just talked about Topic One; now we’re going to talk about Topic Two.” One of the reasons why framing is necessary is that sudden shifts between topics can be jarring and result in confusion. Absent proper framing, consecutive questions addressing unrelated topics can confuse a child and should be avoided.
Framing a question also helps the child witness focus on the individual topic. Once properly framed, the child can begin to think about that topic specifically. This may help recall during questioning, which allows for more reliable answers.29
Children may not have the practical language skills necessary to discern what a questioner is trying to address in a broad question. Recognizing that leading questions are improper in some contexts, some unbounded words that may cause confusion or be overwhelming include “any,” “anything,” or “anyone” or unbounded phrases like “what happened” because they are too broad in scope. When, for example, a question is based on “any,” the child may think she is being asked about everything that could have possibly happened, not just what the questioner was seeking to address. Often this leads to the child’s not being able to answer. Here is an example of a broad question asked to a seven-year-old victim in an abuse case:
Q: Can you tell me what he did the other time?
A: He pulled me inside the house, and then, and then I fell asleep on the couch.
Q: What happened?
Q: Did something happen?
The questioner was expecting the child to detail the abuse that happened in between when she was pulled inside the house and she fell asleep, but the child did not understand that, so she said nothing.30 At this point, the questioner would need to specify that she was asking about what happened between when he pulled the witness in the house and she fell asleep. If that did not happen, incomplete (or no) information would be provided in the answers.31
This does not mean that questions need to be leading or otherwise suggest answers. It does, however, mean that any expectations applicable to most adult witnesses do not apply with equal force to most child witnesses. More specificity through being direct likely will be beneficial in questioning a child witness.
Avoid Suggestive Questions
A limit, of course, on being direct is the problematic nature of questions suggesting answers. This is particularly true with child witnesses. Children often trust that the adult is telling the truth, making it difficult for a child to tell an adult, who has clear power over him or her, that what the adult is suggesting is not true.32 Researchers have found that children are twice as likely to acquiesce to a suggestive question than to resist.33 Other research described suggestive questions to children as “disastrous,” while more open-ended questions have become the “gold standard.”34 Suggestive questions also tell a child how to answer, meaning the answers provided are less useful.
As a judge, it is critical to not use suggestive questions when speaking with a child and to be a check on suggestive questioning of a child by others. Judicial vigilance of cross-examination of a child witness also should be significant.35 Suggestive questions can be inherently manipulative, and children often do not have the tools to address them when responding, undercutting the truth-seeking process.
Although absent an objection, judges rightly are reluctant to be too involved in an attorney’s questioning of an adult witness. For a child witness, however, the proper approach may be quite different. Evidentiary rules of all types are designed to ascertain the truth to help facilitate better decision making. As an example, the Federal Rules of Evidence are to be construed, among other things, “so as to administer every proceeding fairly . . . , to the end of ascertaining the truth and securing a just determination.”36 The court also is directed to “exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to . . . make those procedures effective for determining the truth . . . [and] protect witnesses from harassment or undue embarrassment.”37 Keeping these directives in mind properly may embolden judges to be more involved when presiding over suggestive questioning of a child witness.
Ask Follow-Up Questions
While these suggestions are designed to help obtain more full, complete, truthful, and reliable testimony from child witnesses, some misunderstandings are inevitable. Remember that every child understands language differently based on his or her experience and upbringing. The best way to account for this is to ask follow-up questions to clarify about any potential misunderstandings. If in doubt, a follow-up question may help confirm, clarify, and correct an erroneous view of what prior testimony appeared to provide.
Courtrooms are not particularly comfortable places for most people, both adults and children alike. And children are not simply short adults. When children are asked to provide testimony, it is important that they understand the questions they are asked and that what they say is correctly understood. To further the truth-seeking process, judges presiding over proceedings involving child witnesses should be attentive to ensure that children understand questions they are being asked. These 10 common-sense tips can help judges in that process and can help all to more effectively communicate with children in court. n
The views expressed are solely those of the authors and do not represent those of the Arizona Court of Appeals.
1. Anne G. Walker, Handbook on Questioning Children: A Linguistic Perspective 11–12 (3d ed. 2013) (“Language is shaped by experience.”); id. at 97–98 (“children are not adults”).
2. See Ruth Marchant, How Young Is Too Young? The Evidence of Children Under Five in the English Criminal Justice System, 22 Child Abuse Rev. 432, 432 (2013).
3. See Rachel Zajac, Sarah O’Neill & Harlene Hayne, Disorder in the Courtroom? Child Witnesses Under Cross-Examination, 32 Developmental Rev. 181 (2012).
4. See Samantha Andrews & Michael Lamb, The Structural Linguistic Complexity of Lawyers’ Questions and Children’s Responses in Scottish Criminal Courts, 65 Child Abuse & Neglect 182, 190–91 (2017).
5. See generally Carmel Matthias & Noel Zaal, Intermediaries for Child Witnesses: Old Problems, New Solutions and Judicial Differences in South Africa, 19 Int’l J. Children’s Rights 251 (2011).
6. See generally Kimberly Collins, Natalie Harker & George A. Antonopoulos, The Impact of the Registered Intermediary on Adults’ Perceptions of Child Witnesses: Evidence from a Mock Cross Examination, 23 European J. Crim. Pol’y & Res. 211 (2016).
7. Jeffrey Nels Westman, No Matter How Small: Child Witnesses in Canadian Criminal Trials, 23 European J. Crim. Pol’y & Res. 65 (2018).
8. Walker, supra note 1, at 12 (“Children and adults do not speak the same language.”).
9. Andrews & Lamb, supra note 4, at 183.
10. Walker, supra note 1, at 47 (citing Cathleen A. Carter, Bette L. Bottoms & Murray Levine, Linguistic and Socioemotional Influences on the Accuracy of Children’s Reports, 20 Law & Hum. Behav. 335 (1996)).
11. Id. at 47.
12. This sentence and the prior sentence come from Anne G. Walker, Questioning Young Children in Court: A Linguistic Case Study, 17 Law, Psychol. & Children 59 (Feb. 1993).
13. Walker, supra note 1, at 18, 70.
14. The acronyms, in order, stand for the Indian Child Welfare Act; the Uniform Child Custody Jurisdiction Enforcement Act; juvenile intensive probation, and the department of juvenile corrections.
15. Walker, supra note 1, at 47 (“What makes a complex sentence complex? Most people would probably answer ‘length’ to that question, and length can certainly be a factor, but the correct answer is anything that increases processing time.”).
16. Id. at 50 (citing Nancy W. Perry et al., When Lawyers Question Children: Is Justice Served(Mar. 1993) (“Paper presented to the Biennial Meeting of the Society for Research in Child Development, New Orleans” and also apparently published in 19 Law & Hum. Behav. 609 (1993)).
17. Id. at 52 (citing Peter A. Reich, Language Development (1986); Colin Fraser, Ursula Bellugi & Roger Brown, Control of Grammar in Imitation, Comprehension, and Production, 2 J. Verbal Learning & Verbal Behav. 121 (1963)).
18. Id. (“Putting two or more questions into one.”).
19. Nancy E. Walker & Jennifer S. Hunt, Interviewing Child Victim-Witnesses: How You Ask Is What You Get, in Eyewitness Memory: Theoretical and Applied Perspectives 55 (Charles P. Thompson et al., eds. 1998).
20. Walker, supra note 1, at 49.
21. Id. at 14.
22. The questions and ambiguity in this paragraph come from Walker, supra note 12.
24. Walker, supra note 1, at 15 (citing Lucy Berliner & Mary K. Barbieri, The Testimony of the Child Victim of Sexual Assault, 40 J. Soc. Issues 125 (1984)).
25. Id. at 78–79, 95–96.
26. Id. at 48.
27. Id. at 32–34.
28. Id. at 27.
29. Id. at 19–20.
30. The questions and ambiguity in this paragraph come from id. at 64.
31. Anne G. Walker & Amye R. Warren, The Language of the Child Abuse Interview: Asking the Questions, Understanding the Answers, in True and False Allegations of Child Sexual Abuse: Assessment and Case Management 153–61 (T. Ney ed. 1995).
32. Walker, supra note 1, at 57.
33. Andrews & Lamb, supra note 4, at 184.
APRIL 2019 | AROUND THE ABA