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A Review of International Developments
The Examination & Cross-Examination of Children in Criminal Proceedings:
o Current options for child witnesses in Canada
o Factors influencing developments in this area International legal covenants
Research on children• impacts of delay in giving evidence• impacts of improper questioning
o Five major developments in seven countries
Overview
o Opportunity for children to use testimonial aids: screens, support persons, CCTV, publication bans
Current Options for Child Witnesses in Canada
Current Options for Child Witnesses in Canada
Other procedural opportunities:
alternatives to oath, changes to competency rules, appointment of counsel to cross-examine a child when accused is self-represented, adoption of forensic interview as evidence-in-chief
o Convention on the Rights of the Child (1991)
o Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2005)
o 2005 - UN Guidelines on Justice Matters Involving Child Victims and Witnesses of Crime
o 2009 - Implementation Guides for UN Guidelines
o Other International Covenants - 2001 European Council Framework Decision and legal decisions
Influence of International Covenants
o Research
children’s cognitive, language and memory development
vulnerabilities of children’s development have not been taken into account
impacts of delay in giving evidence impacts of inappropriate questioning
Research:Experiences of Child Witnesses
o Mental health issues: worry, anxiety, sleep and appetite, decline in academic performance and attendance, depression, panic attacks, self-harm
o Failure to enter treatment in timely way due to fear of contamination
o Impact upon quality of evidence, particularly for young children
o Long delays coupled with inappropriate questioning is particularly problematic
Impacts of Delay
o Considerable amount of research into developing quality forensic interview protocols (e.g., NICHD) to achieve best evidence from children
o Yet, historically-accepted norms of cross-examination in traditional, adversarial system pervasive
Impacts of Inappropriate Questioning
o Additional problems with questioning children
Influence of authority figures Lack of knowledge of complex conversational rules Agree to end questioning Intentionally exploits children’s developmental limits, manipulates, confuses
and traumatizes children, fails to promote truth
o Behaviour of defence counsel
Children regularly accused of lying Hostility and aggression intimidates children Secondary victimization
Impacts of Inappropriate Questioning
Australia – 6 States, 3 Territories
England (and Wales)
Israel
New Zealand
Norway
South Africa
United States – several states
Some Countries Doing Things Differently
1. Entirety of a child’s evidence video-recorded before trial (full pre-recording)
2. Use of Intermediaries to increase communication between children and the court
3. Prohibitions on improper questioning of child witnesses through legislation or strong policy guidelines
4. Use of specialist examiners to take children’s evidence outside of court
5. Provision of legal or quasi-legal representatives to child witnesses at court
Five Major Developments inCountries Reviewed
Western Australia
Since 1992 opportunity for children to have all of their evidence video-recorded
before trial for use at trial in lieu of child’s in-court testimony
England and Wales
1999, enacted legislation currently being piloted
1. Full Pre-Recording
Western Australian Model
CCTV in another room at court (support person and court officer present)
monitors show judge and counsel; in court, accused, judge, counsel view child
juries later view pre-recorded evidence on large monitors
child watches forensic interview prior to hearing
hearings expected to be completed within six months of report to police
1. Full Pre-Recording
England and Wales
Legislative provisions in 1999 - intermediaries to assist child witnesses to communicate their evidence to the court
Registered Intermediaries since 2008• Assess child’s communication needs• Assist at the ABE or police interview• Prepare written report based on assessment for use during
“ground rules hearing”• Assist at trial: intervene during miscommunication• Skilled intermediaries who can tailor questions to children’s
abilities
2. Intermediaries
South Africa since 1993, during examinations and cross-examinations sit with child in separate room, take questions from counsel and
judge through headphones, translate and deliver questions to children in developmentally-appropriate language
Israel since 1995, child interrogators provide this role at trial
Other Countries e.g., Western Australia, New South Wales, a few States (U.S.A) provide for use of communication assistants but rarely used
2. Intermediaries
Legislative: Australia, New Zealand, parts of the U.S.A.
specific legislation to prevent improper questioning of child witnesses, particularly during cross-examination
Policy: England and Wales
strong and extensive guidelines for barristers and judiciary Advocacy Training Council’s 2013 toolkit re questioning child
or young person 2011 Achieving Best Evidence guidelines – significant
departures need to be justified in court
3. Prohibitions Against Inappropriate Questioning
Norway
police officers with specialized training conduct one video-recorded interview for use at trial
Field Investigative Interview of Children
input from counsel and judge sitting in another room
held within 14 days of report to police
breaks and continued interviews until case “clarified”
4. Specialist Examiners
Israel
first country to reform procedures for child witnesses in 1955
child interrogators – interview and take all evidence from child for use at trial
power to prevent children from testifying in court (due to trauma)
often video-recorded interview conducted by child interrogator only evidence at trial
can provide hearsay testimony and “reliability” findings but no conviction on uncorroborated evidence of the child
4. Specialist Examiners
United States
Guardian ad litems • provided under federal and some state legislation• appointed as additional support person to access
statutory rights to special measures• can make recommendations to court re child’s
welfare
Attorneys• Federal legislation provides • appear unused
5. Legal Representation for Child Witnesses in Court
Norway
for alleged child and adult victims of certain sexual and violent offences since 1981
state-funded counsel
separate legal representation
counsel appointed by court
5. Legal Representation for Child Witnesses in Court
