Kids in court: how cross-examination can kill the truth

By Lynley Hargreaves 07/05/2014

Dr Rachel Zajac
Dr Rachel Zajac

Dr Rachel Zajac works at the intersection of psychology and law. She’s looked at how jurors make their decisions, why eyewitnesses are often mistaken, and why forensic science evidence might not be as reliable as it looks on TV. With clever experiments and careful research, she works to prevent miscarriages of justice. Now she’s focused on an area that can strike horror into any heart – cases of abuse, and the difficulties that children face when testifying in the courtroom.

Do kids have worse memories than adults?

The first thing to note is that everyone’s memory is unreliable. While it’s nice to think that our recollections are faithful renditions of what we’ve experienced, the truth is quite different. I tell people that memory is like putting something into storage with a dodgy storage company: not everything makes it in, you won’t get everything back, some of what you get back will be damaged, and some of it will be stuff that never belonged to you in the first place.

Children don’t necessarily have poorer memories than adults, but they are particularly vulnerable to the social factors that can affect memory reports, such as pressure from an interviewer. So what I’d say is that children are capable of providing very accurate reports of their experiences, as long as the adults who solicit their testimony do so in a way that promotes accuracy.

Haven’t interview techniques for children been developed already?

Yes! Decades of research have taught us how to question children so that their reports are as complete and as accurate as possible. During cross-examination, however, the whole game changes. Suddenly, lawyers are allowed – and often encouraged – to use precisely the types of questions that we know wreak havoc on consistency and accuracy.

So while the concern we often hear is that children questioned inappropriately might allege abuse that didn’t occur, we’re looking at a different problem: that child complainants under cross-examination might retract genuine allegations.

Would a child really retract a true story of abuse?

Quite possibly. From studying court transcripts, we know that 75% of child complainants of abuse make at least one significant change to their testimony during cross-examination. Some of these changes comprise complete allegation retractions. But court transcripts tell us nothing about accuracy. To look at accuracy, we need to take cross-examination into the laboratory.

Using court transcripts, we’ve developed a laboratory analogue of cross-examination, which we use to question children about events that we stage. We conduct an initial interview based on best practice, and then later we use the cross-examination analogue to try to talk them out of their initial responses, regardless of accuracy. As in the courtroom, the majority of children make numerous changes to their earlier responses. But they are often just as likely to change a correct response as they are to correct an earlier mistake. Overall, cross-examination questions exert a significant detrimental effect on accuracy—we’ve shown this repeatedly, with children ranging in age from 5 to 16 years.

So how do you get at the truth?

With quite some difficulty, actually! We originally wondered whether cross-examining children very soon after the event would help, but it doesn’t. We also tried warning children that they would be asked tricky questions and that it was okay to correct the interviewer; that didn’t work either—even if the warning was delivered by the person doing the cross-examining. We’ve finally had success with giving children practice at answering cross-examination-style questions, and feedback on their responses. Importantly, the practice questions relate to a topic unrelated to the child’s ‘testimony’, making allegations of coaching less feasible.

Is this new intervention in use?

We need to know a fair bit more before implementing it. What we know right now is that—in the lab—our programme helps accurate children to stay accurate. But there’s another dimension we’d be neglectful if we didn’t consider: could our programme also help untruthful children to stay untruthful? So far, it doesn’t look like that’s the case, but our ‘untruthful’ children up until now have always been genuinely mistaken. We know nothing about children who are being dishonest. We’ve just started collecting some exciting new data – where we get parents to ask their children to lie about the level reached on a computer game – looking at this very issue.

These interviews showcase researchers supported by the Marsden Fund which, since 1994, has been supporting fundamental, investigator-led research in New Zealand.