Questioning child witnesses: Exploring the benefits and risks of intermediary models

Abstract

EXECUTIVE SUMMARY The whole point of the exercise is that there should never be a question which is unfair to a child witness. … And so that’s why it has to be recrafted. And it’s not about the theatre and it’s not about having an argument with the witness or confusing the witness. The whole idea is that we are trying to establish a system … where the witness is not confused. That’s the point. (Defence lawyer 2) Ensuring that all accused persons have a fair trial is critical to the quality of justice delivered by the courts. This includes obtaining the most accurate and complete testimony from witnesses. The two most significant barriers to obtaining this best evidence from children who are witnesses are the long delays in processing their cases through the courts and poor questioning practices, particularly during cross-examination. While delays could be addressed through pre-recording children’s entire evidence prior to trial, questioning practices might be improved by training counsel and the judiciary, and by involving people with specialist skills in child language (“intermediaries”) to assist counsel to question children appropriately. New Zealand can learn from overseas jurisdictions that have already developed intermediary systems to improve children’s evidence. For example, in South Africa, intermediaries relay counsels’ questions one-by-one to the child, rephrasing each question into appropriate language. In England/Wales, intermediaries typically make an assessment of a child witness’s communicative competencies before trial, advise on the ground rules for questioning the child, then monitor counsels’ performance at trial, alerting the judge when a question is inappropriate (intermediaries may also assist earlier in the process, at the police interview). While both models offer some advantages over the status quo in New Zealand, neither can address the extent of the linguistic issues nor the difficulties caused by question sequences designed to confuse, because intermediaries are largely limited to relaying or intervening on individual questions at trial. The purpose of the current study is to explore the potential benefits and risks of different intermediary models at trial by conducting mock examinations of a “child” witness (roleplayed by an adult). Exploration of intermediaries was not undertaken on the basis that all children will be truthful. A thoughtfully constructed model might, by improving questioning, highlight false allegations more efficiently and effectively than now. The basis for this project is that regardless of whether a witness is thought to be truthful or not, the best approach to any child witness is one which does not increase the risks of contaminating his or her evidence. 6 Table 1: Intermediary models considered Full intermediary model: The intermediary is briefed by both counsel before trial on which aspects of the child’s testimony they want explored and tested. At trial, the intermediary takes responsibility for putting the requested exploration and testing into question form, including determining how questions are phrased and the order in which they are put. Question-by-question model: Counsel determines the questions and poses them one at a time to the intermediary, who translates the question into developmentally appropriate language for the child. Topic-by-topic model: The intermediary is briefed as per the “full intermediary model,” but counsel breaks the questions up into chunks or topics, based on the areas of challenge or exploration. At trial there is an iterative process whereby the intermediary questions the child on the first topic, then refers back to the lawyer for further instructions (e.g., to put a question differently or to pick up on an inconsistency), before moving on to the next topic. Mock examinations of the first two models in Table 1 were conducted on 14 May 2011 in a courtroom with a District Court judge, prosecutor and defence lawyer each taking their respective roles; the “child” witness was role-played by an adult and the intermediary role was shared principally between a forensic interviewer and a speech language therapist. The trials were observed by a judge, defence lawyers, prosecutors, a legal scholar and a paediatrician; each examination was followed by facilitated discussion. The participants’ perceptions of the full intermediary and question-by-question models were generally poor. However, towards the end of the day, participants began exploring the possibility of the third (topic-by-topic) model (see Table 1). The participants, both actors and observers, were subsequently interviewed individually to explore their perceptions of the examinations. During interviews, participants were asked to consider the potential benefits and risks of the topic-by-topic model, imagining that there was a pool of highly trained, highly skilled intermediaries. The anticipated benefits cited by participants included: ▪ Better evidence from children through better and appropriately sequenced questions ▪ Improved pre-trial preparation by counsel ▪ Clearer evidence for the fact-finders to assess ▪ Neutralising negative perceptions of the defence side ▪ Increasing counsels’ and judges’ understanding of appropriate questioning for children ▪ Allowing the child breaks in their testimony The anticipated risks included: ▪ Increased duration of cross-examination ▪ The potential for conflict between the intermediary and counsel ▪ Defendants being dissatisfied with the process and dismissing counsel after the examinations ▪ Interference with defence counsels’ ability to fulfil obligations to their clients to put the case and challenge evidence ▪ The risks associated with poor implementation of the model 7 During the course of interviews it became apparent that participants were interested in conducting a further mock examination to explore the topic-by-topic model in practice. This mock examination took place on 7 June 2011, followed once again by facilitated discussions with the actors and observers (this time including three judges). During those discussions, participants noted that a number of the anticipated benefits and risks had been realised. For example, there was evidence that the defence lawyer had indeed increased his understanding of developmentally appropriate questioning of children as a result of working with the intermediary during the pre-trial briefing; the potential of the briefing process to improve pre-trial preparation was also evident. However, some participants remained concerned about intermediaries’ ability to put the defence case effectively and counsels’ ability to respond effectively to the emerging, and in particular “bombshell”, evidence. In summary, there was broad consensus between project participants that children are often poorly cross-examined in New Zealand’s criminal courts and that intermediaries might improve the quality of children’s evidence. Most participants perceived the idea of an intermediary system as worthy of further careful exploration and, while cautioning against precipitous action, the authors also see promise in the idea. The topic-by-topic model was generally perceived to be more effective than the other two models considered; however, there is more than one viable model of operation. For example, intermediaries could conduct communications assessments of individual children and then monitor proceedings as in England/Wales; or they could assist counsel to prepare their questions in advance of trial and then monitor counsels’ questioning of the child at trial; or they could question the child directly under the directions of counsel and the presiding judge in something similar to the topic-by-topic model. Whichever model, a pre-trial assessment of the child’s communicative competencies would be an ideal component. While we are far from having developed a fully workable model, the exercise helped to highlight some of the issues that would need to be carefully considered in developing an intermediary system, including: ▪ The context of pre-recording children’s entire testimony ▪ The criteria for children’s access to an intermediary ▪ The need for highly trained intermediaries with skills in children’s language and relevant law ▪ Delineation of roles (including the intermediary’s and the judge’s, bearing in mind that the judge would remain responsible for controlling the questioning, as is the case now) ▪ The recruitment of suitable candidates 8 ▪ Guidelines on how the pre-trial briefing should be conducted and on maintaining a paper-trail of interactions in case of appeal. ▪ Consideration as to pre-trial interactions between the intermediary and child, on the one hand, and between counsel, the intermediary and the judge on the other. Next steps Reflecting on the mock examinations and participants’ views, the authors propose the following as next steps towards enhancing the courts’ facilitation of children’s best evidence: 1. Create a legislative presumption in favour of pre-recording children’s entire testimony and evaluate implementation of pre-recorded hearings. 2. Develop training programmes for the judiciary and counsel on communicating with children, particularly during cross-examination (Institute of Judicial Studies, New Zealand Law Society and Law Schools). 3. Establish a multidisciplinary Child Witnesses Working Group with terms of reference over an extended period to: Communicate research findings on children’s language and the problem of poor communication with children in the criminal courts to inform legal discussions about ways the courts can improve the quality of evidence from children. Draft guidelines to depict best practice in cross-examining children, drawing from expertise in children’s communication as well as the law. Explore the possibilities of mandatory training for judges and counsel on best practice with children. Develop an intermediary model for New Zealand including: o Framing the roles and responsibilities of the intermediary and counsel; o Developing a code of conduct for intermediaries; o Specifying the core components of a training package for intermediaries; o Outlining pre-trial processes of engagement between the intermediary and other parties; o Establishing protocols for courtroom practice; and o Determining criteria for children’s access to an intermediary. Contribute advice on legislation. Monitor and evaluate the first six cases which use an intermediary in a similar process to Whitney and Cook’s (1990) evaluation of the first six cases using closed-circuit television in New Zealand.