How to treat child witnesses in court proceedings

Sep 25, 2020 | Judiciary, Justice
Children come into contact with the criminal justice system in different capacities, most often as victims or witnesses of crimes. However, crime can also have an indirect effect on children. For example, domestic violence has a major impact on children, even if they have not witnessed the violence itself.

Through my work with other international experts within the framework of the Model Court Initiative of the EU Project Pravo-Justice, we are now concentrating on building a system for working with vulnerable court users. Children are indeed vulnerable court users, and working with them requires a special understanding and adapted approaches.

While child victims and witnesses are, in fact, particularly vulnerable because of their child status, there may be additional circumstances that make some children more vulnerable than others. In particular, mental illness or diseases associated with the peculiarities of psychological development and perception of the world (e.g., children with autism) enhance vulnerability. Therefore, it is necessary to apply an individualized approach to each child during court proceedings, paying close attention to the specific circumstances faced by the child. This individualized approach helps the child feel safe, equal and important.

There are several reasons for which it is necessary for the child to feel safe and important. First and foremost, this minimizes the risk of secondary victimization (in other words, it helps the child to avoid the potentially harmful impacts of justice, except for the harm already caused by criminal victimization or crime monitoring). That is, the child should not feel as if he/she is reliving the same traumatic situation which victimized him/her in the first place. However, it's not merely about protecting the child. It is also a question of advancing justice. Providing a child with the best conditions for testifying means a better chance of successfully solving the crime and bringing the perpetrator to justice.

But how exactly can we make sure that the child provides the best evidence? This is a situation where even the best intentions can easily be repulsed if we do not understand the child's emotional state and way of thinking. Children, especially young children, and adults are fundamentally different in terms of their thinking in many ways. We will consider some of these differences below.

Re-examination

In the case of child victims and witnesses, it is highly recommended that the number of re-examinations be reduced to a minimum, ideally to one, as not only does the process force the child to relive the traumatic experience over and over again, but it also imperils the entirety of the investigation as it can distort the evidence. For a small child, an adult is a figure of authority. As such, if the first time is "wrong" and as a result they are susceptible to changing their testimony simply to seek the adult’s approval. The modified response, however, should not be considered a lie. It is a direct consequence of misunderstanding child psychology. This can be avoided by following evidence-based child interview protocols.

Closed-ended questions

Dr. Thomas Lyon, author of a reputable protocol for interviewing children, highlights in a recent presentation a case of sexual violence against children in which jurors refused to convict the defendant because some jurors questioned the veracity of the testimony given by child victims, notably because they questions were posed in a closed-ended format. The problem was that when young children witnesses were repeatedly asked closed-ended questions, they invariably answered "yes." "Did he touch you 5 times?" - "Yes", "Did he touch you 50 times?" - "Yes". The right approach, which might help to obtain a better testimony and avoid the erroneous acquittal of the defendant, would be to ask open-ended questions. This method invites children to tell the story in their own words.

It is difficult to find words

Very often following a traumatic experience, the child victim is unable to speak about the event. Sometimes it is merely due to the child’s lack of words and concepts that could explain what happened. But most often, especially in cases of sexual and physical violence, the child experiences a psychological block when attempting to speak about the event, as the act of speaking about it returns the child to the situation of violence. The use of anatomical dolls can help in these cases. Through the use of dolls, children can show which parts of the body were touched and what precisely was done to them. Another way of eliciting the information is to indirectly tell the story of violence through drawing, composing a fairy tale, or other creative outlets for expression.

Questions with several options

If the interviewer asks the child a question where the answer involves choosing from several options, the child may feel pressured to answer, even if he or she does not fully understand the question. Often younger children simply choose the option that is presented last. For example, if asked, "2, 3, or 4 people?", The child may answer "4" regardless of actual circumstances.

Not an examination, a conversation

The child should feel as comfortable and protected as possible during the interview. The interview should be conducted in a way it feels like an informative conversation with an adult. Therefore, it is not necessary to demand answers to each question asked. One can reformulate questions, as well as break up questioning with trivial questions about details which are not related to the subject of discussion. For example, questions such as "Do you often go to this river? Do you go there with friends? Do you know its name? Can you swim?") can help to establish psychological contact with the child so that he/she will believe the interviewer and feel at ease to express him/herself. If the child is closed in one aspect, there is no need to pressure the child and continue with this line of questioning. Simply switch to another.

Comfortable setting

The room in which the conversation is held with the child is also of great importance. Ukraine has begun to adopt the world-renown practice of equipping "green rooms" – spacious, comfortably equipped rooms with green or blue walls, the very setting of which is soothing and does not cause negative associations. It is also important to allow the child to be distracted - to draw, to take different toys, to not look at the interviewer during the conversation. Pressure exerted on the child during the interview will only lead to re-victimization and may be the cause of false testimony, if the child just wants "to be left alone."

These key points above highlight why it is so critically important to understand children in order to interview them correctly. In some countries, children may be assigned a trained mediator when being interviewed for investigative purposes, in order to ensure that the interviewer-child communication is consistent and accurate. This approach differs from the mere presence of a psychologist during the interview, as the mediator would be specifically trained to communicate with the child and wields a greater knowledge of the methods of examination for trial purposes.

Irina Urumova, international short-term expert of EU Project Pravo-Justice (Armenia) for Yurudychna Gazeta