Questioning Child Witnesses: Exploring the Benefits and Risks of Intermediary Models in New Zealand

Abstract

The presumption of innocence is the primary value underpinning the trial. It is important to work out how to maintain the rights of defendants while better accommodating child complainants and witnesses in the pursuit of fact. One approach is to improve how children's evidence is challenged in order that the fact-finder may have a better opportunity to assess the evidence. This article looks at the viability of achieving this aim through the use of intermediaries to question children on behalf of counsel. Three intermediary models were explored through mock examinations of a “child” witness. Reflecting on these, the article documents some of the issues and the potential benefits and risks of different intermediary models to improve this questioning of children, particularly during cross-examination.

Key words:

• child witnesses
• intermediaries
• cross-examination

Acknowledgements

The authors gratefully acknowledge our funders, the New Zealand Law Foundation, the JR McKenzie Trust and AUT University, for making this research possible. We are also deeply indebted to the individuals who participated in this research, as actors and observers, to the court staff who assisted, to reviewers of the report from which this article derives, and to Joyce Plotnikoff for her insightful review of this article. Any deficiencies remain the responsibility of the authors.

Notes

1. The complex constructions common to courtroom language include the use of tag questions (e.g., You went to town, didn't you?) and sentences containing multiple subordinate clauses (e.g., If he told the police that that was what he thought you wanted to do, are you saying that you don't think he could have thought that?).

2. The Youth Justice and Criminal Evidence Act 1999 also allows for the use of intermediaries with vulnerable adults, such as those with disabilities or intellectual impairments.

3. Some of the more assertive intermediaries, however, are addressing the issue of inappropriate sequencing in their reports and may challenge such sequences at trial on the grounds that the sequence may produce unreliable answers (J. Plotnikoff, personal communication, 14 September 2011).

4. Forensic interviewers were approached to take these roles because of their experience in questioning children; this choice is not to be construed to mean that the researchers believe the current forensic interviewing service should take this role in the event that an intermediary system were introduced in New Zealand.

5. For most of the examinations, the intermediary questioned the “child” from the courtroom via CCTV. For one portion, however, the intermediary joined the child in the CCTV room. The adult who role-played the child reported that, due to the small size of the room, it was uncomfortable to be questioned at such close quarters. However, the experience in England/Wales is that having the child and intermediary in the same room is critical to ensuring the intermediary picks up on non-verbal communication that might be lost via video-link, such as signs of stress or loss of concentration (J. Plotnikoff, personal communication, 7 May 2012).

6. That is, the forensic interviewer and the speech language therapist.

7. A similar point is made by Plotnikoff and Woolfson (2012) who note that intermediaries in England/Wales have helped to raise “…awareness about risks of miscommunication in cross-examination practice and how to remedy them.”

8. J Plotnikoff, personal communication, 14 September 2011. See also R v Wills where a judge determined the ground rules for questioning child witnesses (there was no intermediary involved). These included that counsel should not challenge the witnesses and that defence was “not expected to put the appellant's case”. One defence lawyer abided by the rules, while the lawyer for a co-defendant “had only passing regard for the limitations imposed by the judge”, despite judicial efforts to enforce them. The Court of Appeal ([2011] EWCA Crim 1938) found that the cross-examination undertaken in accordance with the ground rules was just as effective as the cross-examination which adopted “a more traditional and robust approach to cross-examination”.