‘[Expletive], that was confusing, wasn’t it?’ Defence lawyers’ and intermediaries’ assessment of the language used to question a child witness
| Date | 01 October 2018 |
| DOI | 10.1177/1365712718796527 |
| Published date | 01 October 2018 |
| Author | Kirsten Hanna,Emily Henderson |
| Subject Matter | Articles |
Article
‘[Expletive], that was confusing,
wasn’t it?’ Defence lawyers’
and intermediaries’ assessment
of the language used to question
a child witness
Kirsten Hanna
School of Social Sciences and Public Policy, AUT University, Auckland, New Zealand
Emily Henderson
Independent researcher; Consultant, Henderson Reeves, Whangarei, New Zealand
Abstract
While language specialists and legal professionals have voiced concerns about the language
used to question child witnesses in the Aotearoa/NZ courts, it is unclear whether both
groups share a common understanding of what those language problems are. This study
compares five Aotearoa/NZ defence lawyers’ and two England/Wales intermediaries’
perceptions of the developmental (in)appropriateness of the language used to question an
11-year-old witness, based on their assessment of the witness’ anonymised trial transcript.
The comparison showed that both groups agreed on the categories of language features
that might confuse children, however, intermediaries identified many more instances of
problematic language within those categories than lawyers. Training on developmentally
appropriate language and pre-trial preparation of questions would certainly help lawyers
improve the comprehensibility of their questions. However, the implementation of a full
intermediary scheme, such as that in England/Wales, probably offers the best prospects
for a sustained sea change in questioning practices.
Keywords
advocacy, children, cross-examination, developmentally appropriate language, intermediaries
Corresponding author:
Kirsten Hanna, School of Social Sciences and Public Policy, AUT University, Private Bag 92006, Auckland 1142, New Zealand.
E-mail: Kirsten.hanna@aut.ac.nz
The International Journalof
Evidence & Proof
2018, Vol. 22(4) 411–427
ªThe Author(s) 2018
Article reuse guidelines:
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DOI: 10.1177/1365712718796527
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Introduction
...because it can’t be right that it’s the...proper function of the lawyer to create ambiguity. (Defence
lawyer)
There has long been disquiet within adversarial jurisdictions internationally about the criminal
courts’ treatment of child witnesses, with concerns raised about (inter alia) the developmental
appropriateness of the language used to question them and the potential for poor questioning to
diminish the quality of their evidence. Such concerns in England/Wales led to the development of
the Registered Intermediary Scheme, where accredited intermediaries (most of whom are speech
language therapists (SLTs)) are engaged to facilitate effective communication between vulnerable
witnesses and the courts (Ministry of Justice (England/Wales), 2015). Their role includes assessing
a witness’s communicative competencies, then advising the court on how best to question that
witness (e.g., which language and other features the witness can or cannot handle), monitoring
courtroom questioning and alerting the judge if a question is unlikely to elicit best evidence.
1
A
recent experimental study shows the positive impact of intermediaries on the quality of children’s
evidence,
2
while a series of qualitative studies have shown that the majority of the police, counsel
and judges consulted were highly positive about intermediaries’ ability to facilitate the testimony of
young and vulnerable witnesses (Hanna et al., 2010; Henderson, 2015; Plotnikoff and Woolfson,
2007, 2015; Victims’ Commissioner (England/Wales),2018).InAotearoa/NewZealand,s.80of
the Evidence Act allows for intermediaries (‘communication assistants’) to similarly facilitate
witnesses’ participation in proceedings. However, communication assistants are rarely engaged to
assist in child witness trials, despite the fact that many questions posed by lawyers are likely to
exceed children’s comprehension and diminish their ability to produce best evidence, particularly in
cross-examination (Davies and Seymour, 1998; Hanna et al, 2012; Zajac and Ca nnan, 2009; Zajac,
Gross and Hayne, 2003).
Lawyers and judges in Aotearoa/NZ have also voiced unease about the language used to cros s-
examine children. When asked which language features they considered problematic, the lawyers and
judges were vague, citing ‘age inappropriate’ and ‘confusing’ questions, ‘playing on semantics’ and poor
phrasing (Davies et al, 2011). They acknowledged that courtroom examinations can easily go awry
because they cannot always recognise when questions are beyond a child’s comprehension. They
lamented their lack of knowledge about, and available training on, how to match questions to young
witnesses’ competencies. While intermediaries in England/Wales can help counsel adapt their language
for the witness, the rarity of communication assistants in the Aotearoa/NZ courts means that the vast
majority of counsel and judges must simply do the best they can unaided.
Language specialists will inevitably be better equipped to recognise problematic language than most
lawyers. What is less clear is where the overlaps and gaps lie between language specialists’ and lawyers’
perceptions of what constitutes developmentally inappropriate language: When these groups say there
are problems with the way children are questioned, are they talking about the same thing? Judging by
transcripts of children’s courtroom questioning in Aotearoa/NZ (Davies and Seymour, 1998; Hanna
et al, 2012; Zajac and Cannan, 2009; Zajac, Gross and Hayne, 2003), one would conclude that the gaps
1. This is only part of the intermediary role, which can also include a tremendous amount of pre-trial preparation (Plotnikoff and
Woolfson, 2015).
2. This study found that intermediary assistance during a mock investigative interview resulted in typically developing children
remembering more correct details of a staged event (without an increase in incorrect details or confabulations) compared to
children who received a standard Best Practice police interview (Henry et al., 2017). The same was not found for children with
autism spectrum disorder, although the basis for this finding has been challenged (Dando et al, 2018). Another experimental
study demonstrated that the presence of an intermediary had a positive ef fect on adults’ perceptions of the mock cross-
examination of a child witness. Specifical ly, the adults perceived the children’s beha viour and the quality of the cross-
examination to be higher when an intermediary was involved (Collins, Harker and Antonopoulos, 2017).
412 The International Journal of Evidence & Proof 22(4)
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