Questioning Child Witnesses in New Zealand's Criminal Justice System: Is Cross-Examination Fair?

The way in which children are questioned in forensic contexts can impact on the accuracy of their responses. Past studies have shown that children were often questioned in the New Zealand courts in ways that profoundly contradict best practice. This study analyses the questions posed to 18 child witnesses by forensic interviewers, prosecutors, and defence lawyers during criminal trials held in New Zealand courts in 2008. The results suggest that, as was found in earlier studies, many of the questions posed to children during cross-examination in particular were inconsistent with best practice in terms of eliciting full and accurate information from children. Indeed, the heavy reliance on closed, leading and complex questions, along with other common practices, casts doubt on the forensic safety of cross-examination, calling into question its fairness for children. The implications of these results for policy and practice are explored. Key words: child witnessescross-examinationNew Zealand Acknowledgements This article reports on part of a larger study into child witnesses in New Zealand's criminal courts (Hanna et al., Citation2010) funded by the New Zealand Law Foundation, Ministry of Social Development, Ministry of Justice, and New Zealand Police. The authors are grateful to the Advisory Group that guided that study for their comments on drafts of the chapter that appeared in Hanna et al. (Citation2010); to administrators at the offices of the Crown Solicitors in Auckland and Christchurch for sourcing and anonymising the transcripts upon which this study was based; and to Dr Robin Hankin of AUT's School of Computing and Mathematical Sciences for his assistance with statistics. Notes A version of this paper was presented at the 3rd Annual Conference of the International Investigative Interviewing Research Group, Norwegian Police University College Training and Conference Centre, Stavern, Norway, 22–24 June 2010. 1. These studies examined how children (5–12 years (n = 15) and 5–13 years (n = 18 direct and n = 21 cross-examinations) respectively) were questioned by prosecution and defence. 2. In New Zealand, children who allege abuse, who are strongly suspected of having been abused, or who have witnessed crime often give their statement to police via video-recorded forensic interview. New Zealand's forensic interviewing service comprises statutory social workers and Police officers who have completed training on communicating effectively with children. Since 1989, taped forensic interviews can be shown at trial as the child's evidence-in-chief. 3. This study examined 12 forensic interviews and 26 direct and cross-examinations by lawyers in 16 trials. 4. "Crown Solicitors are private legal practitioners appointed on the recommendation of the Attorney-General and by warrant of the Governor-General. The Crown Solicitors are appointed for a particular district, usually in a High Court centre, and are responsible for the conduct of indictable trials in the High Court and District Court on behalf of the Crown" (Retrieved from the Crown Law Office website: http://www.crownlaw.govt.nz/). 5. Although young children may understand some types of passive, scholars have suggested that full "control" of this form may not occur until the age of 10–13 or possibly even later, in early adulthood (Walker, Citation1999). 6. Some utterances contain a matrix yes/no question and a subordinated question, e.g., "Can you tell me [what happened next?]". In the vast majority of cases, children answered the question in the subordinate clause. With these question types, the form of question in the subordinate clause was coded. 7. This definition is consistent with s4 of the Evidence Act 2006: "a question that directly or indirectly suggests a particular answer to the question." 8. In all but two cases, each child was examined by at least two different interviewers; a Mantel test was conducted testing the hypothesis that interviewers' questions differed no more between children than to the same child. No significant result was found, consistent with the assumption that differences between questions are driven solely by the interviewer, not the child. We also conducted Mantel tests assessing the hypothesis that the *age* of the child affected the types of questions. While the types of questions posed by forensic interviewers did not significantly differ with age of the child (p = .323), there were differences for defence lawyers' (p = .0176) and prosecutors' (p = .0383) questions; further study would be needed to elucidate how lawyers' questions differed in this respect. 9. Subordinate clauses are not uniformly difficult to comprehend; nor does the presence of multiple subordinate clauses in a single sentence necessarily indicate that the sentence will be difficult to comprehend (consider the nursery rhyme, This is the house that Jack built, with its multiple (right-branching) subordinate clauses). However, some utterances contained so many subordinate clauses that they were in all likelihood difficult to unravel. Utterances like this which contain multiple subordinate clauses before the main question (i.e. left-branching) are considered particularly difficult to comprehend (Bailin & Grafstein, 2001). 10. Namely, negative rhetorical and multifaceted questions, ones with no grammatical or semantic link, sentences containing verbs in the passive and nominalisations, and tag questions. 11. Complex questions were defined in this study as those involving inappropriate negation, embedded clauses, complex vocabulary, complex concepts, unannounced topic shifts, and those involving two or more questions. 12. Complex questions in this study included multipart questions, abrupt changes in topic, legal jargon, complex non-legal language, embedded clauses, inappropriate negation, and references to measurements. 13. A single intervention might involve a single utterance or several in succession. 14. Salhany (2006) is an exception to this tendency. 15. The average delay between the first offence and appearing at trial was 31 months for a sample of New Zealand child complainants (n = 46) who testified during 2008–2009 (Hanna, Davies, Henderson, Crothers, & Rotherham, Citation2010). 16. As noted by one British judge, "You can only interrupt or send the jury out so many times" (Plotnikoff & Woolfson, Citation2010).