Imagine a 4-year-old girl called to the stand to testify as courts reopen from the coronavirus shutdown. As the small child looks around, she sees grownups in masks scattered an eerie six feet apart.
Then, one of the masked grownups asks her a question like this: “Do you recall talking to him on the Wednesday after they found — discovered something had happened to your mom, and asking him, ‘Do you know Phil?’ and then saying, ‘That is who did it’? Do you remember telling him that?”
Sadly, for those of us who work in the criminal justice system, this scenario takes no imagination to picture. Child witnesses were asked questions like this in court all the time before the pandemic shutdown. The consequences were bad enough before the shutdown, and will be even worse as the courts reopen to altered conditions that will be even scarier for child witnesses.
These types of questions are incomprehensible to children. They are also fundamentally unfair. All other witnesses are questioned in language they can understand. Those who don’t speak English are provided interpreters who speak their native language. Those who are deaf are provided with sign language interpreters. And yet, little effort is made to protect this same right for child witnesses: the right to understand the language of court proceedings so they can respond and be heard.
Two pandemic-related issues related to this problem are on a collision course for disaster. First, pediatricians and emergency room doctors are seeing an increase in severe child abuse throughout the country. Second, courtrooms all across the country have been largely shutdown. When the courts open back up, many of these child abuse cases will go to trial and children will testify.
Before the pandemic shutdown, approximately 100,000 children testified each year. With the increased rate of child abuse during the pandemic, the number of child witnesses is likely to be much greater when the court shutdown is over. If the same method of questioning child witnesses is used after the reopening as was used before, there will be injustice.
The purpose of examining children in court is to find out what they saw, heard, or experienced. The problem with the usual long, convoluted questions is that they don’t do this. Instead, these questions simply test ability to memorize a list of somewhat related concepts and hold that list in short-term memory while searching long-term memory for multiple answers.
Young children do not have the ability to do this. Thus, questions must be kept short and simple. In order for children to answer a question accurately, it must be simple enough for them to remember it from beginning to end.
In addition to being unfair to the child witnesses themselves, asking children questions they don’t understand is also unfair to the parties in the case because it leads to unreliable evidence.
If we want justice for both the accused and the victims when the courts reopen, we must have accurate testimony from children. This requires judges to make sure that attorneys use questions that children can understand and can respond to with accurate, truthful answers.
As the U.S. Supreme Court stated in J.D.B. vs. North Carolina, “judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7–year–old is not a 13–year–old and neither is an adult.”
Blake R. Hills is a prosecutor in Park City with more than 20 years of experience who focuses on special victims, domestic violence and child abuse cases.