Week 3Graham Davies

Child Witnesses and the

Courtroom

Vulnerable witnesses in court

• English law traditionally lays great emphasis upon giving evidence in person

• This creates enormous difficulties for vulnerable witnesses, such as children, the elderly and those with learning disabilities

• In the last 25 years, law and procedure in England and Wales has changed more for these groups than the previous 150 years

Children as Witnesses

• Children's evidence has traditionally been regarded with suspicion by the courts

• Issues around suggestibility; poor memory and lack of moral sense

• However, concerns arose over miscarriages of justice involving child sex abuse-the Peter Adamson case (1983)

• In 1988, the Hedderman Report concluded that with appropriate support and interview procedures, children could be credible and useful witnesses in court

Milestones in Children’s Evidence

• The ‘Live link’

• Videotaped interviews

• The Memorandum of Good Practice (1992)

• Ceci on suggestibility

• Achieving Best Evidence (2002)

The ‘Live Link’

• Fears of seeing the accused

• Concern over alien surroundings

• Research by Davies and Noon (1991)

• Positive effects

• Negative effects

Orcutt, Goodman et al. Law and Human Behaviour, 2001, 25, 339-372

• Half had stickers placed on body; half pretended they had

• All cross-examined by lawyers in court, either via CCTV or live in courtroom

• Children aged 7-9 years; 3 weeks delay• Jurors were at chance at detecting

deception• No impact on accuracy:live vs CCTV

Videotaped Interviews

• The ‘Half-Pigot’ compromise

• Pigot on the value of skilled and early interviews

• Evaluation by Davies, Wilson et al. (1995)

• Impact of stress and support

By 1998, Widespread Use and Acceptance

• CPS Inspectorate Report

• 93% applications for ‘Live links’

• 95% applications for videotapes

• But no impact on conviction rate

The Memorandum of Good Practice (1992)

Phased approach to interview:

• Rapport and ground rules

• Free narrative phase

• Questioning phase

• Closure

Types of Question

• Open-ended questions

• Specific, but non-leading questions

• Closed questions

• Leading questions

Waterman, Blades & Spencer Applied Cognitive Psychology,2001,15, 521-

532)

• Participants aged 5-9 yrs and adults• Hear story and then answer questions• Half open (Wh..?) and half closed• Half answerable, remainder not• High accuracy, irrespective of age, on

answerable questions• Very strong age effect on closed

unanswerable questions

Research by Steve Ceci

• Negative stereotyping and repeated

suggestions

• Committed interviewers

• Repeated requests to remember

Some Limitations on Ceci’s Work

• Children aged 3-6 years

• Strong age effects

• Familiar known events

• Multiple interviews a feature

Memorandum Interviewing Anticipated these Problems

by • Minimising the number of interviews

• Recording what questions were asked

• Interviewing as soon after the

accusation as feasible

Sternberg, Lamb, Davies & Westcott, Child Abuse and Neglect, 2001, 25,

669-681• Content analysis of over 100 interviews by

13 police forces• Low rates of open-ended questions,

distributed across interview• High rates (40%) of specific and closed

questions• Low rates of leading questions

Revised Guidance addresses these Problems

Achieving best evidence in criminal proceedings: Guidance for vulnerable and intimidated witnesses, including children

(Home Office, 2002)

Revised Document Wider in Scope

• Covers all vulnerable and intimidated adults as

well as children

• Court preparation and appearance as well as

interviews

• All professionals to subscribe to the same

principles

• Attempt to create a ‘joined up’ CJS

Criticisms of the Memorandum by users

included

• Inflexibility of the ‘one hour rule’• Lack of guidance on the very young,

special needs and ethnic minorities• Emphasis on evidence gathering at the

expense of support for the child• Not enough examples of good practice

Aspects of the revised Guidance for children

• Disappearance of the ‘one hour rule’ –length now up to professional judgement

• Special treatment of very young witnesses and those with special needs

• Extended coverage of the planning phase of the interview

• Verbal formulae for ‘ground rules’

Other features of the Guidance include

• No assumption of ‘step wise’ questioning• Instead a general emphasis on open-

ended questions• No lower age limit for interviews• Intermediaries and video-cross

examination• Recognition that children, like all

witnesses, will sometimes lie or make errors

Unresolved Issues

• Resistance from lawyers to use of intermediaries and pre-recorded cross-examination

• Need for training for all parties in the Guidance-and understanding of recommendations

• Special needs of defence witnesses