Dateline: November, 2010, Issue 3
Do complex questions to child witnesses help or hurt the defense?
Each year approximately 10,000 children testify in the U.S., most often in criminal court about sexual abuse.
Research has found that defense attorneys often ask child witnesses complex questions. Complex questions use language beyond the child's developmental skills, contain legal terminology, and/or use complex sentence forms such as double negatives and tag questions. These complex questions make it harder for children to understand what is being asked, and lower the accuracy of children's responses (see, for review, Evans et al., 2009).
Is there strategic value in asking children complex questions?
Evans and colleagues (2009) investigated the effect of complex questions by the defense and prosecution on jurors' verdicts in 46 felony child abuse cases in Los Angeles, California tried between 1997 and 2001. Half of the cases resulted in a conviction, and half in an acquittal. Extensive linguistic analyses of trial transcripts were conducted, and then correlated with the juries' verdicts.
The researchers found that defense attorneys and prosecutors asked equally complex and wordy questions. While the complexity of the prosecution's questions was not related to trial outcomes, the complexity of the defense's questions of child witnesses was a significant predictor of jury verdicts.
Defense lawyers who used more complex questioning of child witnesses were over two times more likely to receive a guilty verdict for their client than those who used less complex questions. The trial verdict could be accurately predicted 83% of the time based on the complexity of the defense attorney's questions to the child witnesses.
Strongly determinative of conviction were complex defense questions resulting in "I don't know" responses from children or in a "no" response where the child then provided additional information. When the defense asked more complex questions leading to an "I don't know" response or a "no, and more information" response from children, the defendant was 4 and 12 times more likely, respectively, to be convicted than when defense attorneys asked questions that avoided such responses.
Complex questions asked by the defense fail to undermine the credibility of child witnesses. Instead, the more complex a defense attorney's questions to a child witness, the more likely the jury convicts the defendant.
Source Evans, A. D., Lee, K., & Lyon, T. D. (2009). Complex questions asked by defense lawyers but not prosecutors predicts convictions in child abuse trials. Law & Human Behavior, 33, pp. 258-264.