Judges perceive child witnesses as being more honest than adults when testifying in court, but recognize that children's limited memory and communication skills, and greater suggestibility may make them less reliable than adults.
The multi-disciplinary research, the first of its kind to examine judges' perceptions of child witnesses, was led by Queen's Child and Family Law scholar Nick Bala. It addresses how judges assess the honesty and reliability of children's court testimony, and how accurate their observations are. It also makes recommendations for how to train child protection professionals and judges to most effectively frame their questions to child witnesses.
The research, to be published in next month's Alberta Law Review, has important implications for educating child-protection professionals, including judges.
The findings are based on two related studies that merge traditional legal scholarship on children's truth telling, and a national survey of child-protection professionals that assesses perceptions of child witnesses and truth telling, with judges' responses to mock interviews.
"Assessing the credibility of witnesses - deciding how much to rely on their testimony - is central to the trial process," says Bala. "The assessment of credibility is an inherently human and imprecise enterprise. ''
The research showed that social workers and other professionals working in child protection, and judges correctly identify children who are lying at only slightly above chance levels after watching mock interviews. Judges perform comparably to other justice system officials and significantly better than law students.
While the mock interviews don't replicate the judge's courtroom experience, "the results show that judges are not human lie detectors," says Bala.
The research also indicates that defence lawyers are more likely than prosecutors or others who work in the court system to ask children questions that are not appropriate to their developmental level. These questions use vocabulary, grammar or concepts that children could not reasonably be expected to understand. This leaves child witnesses at a disadvantage to respond honestly.
The survey asked Canadian judges about their perceptions of child and adult witnesses on such issues as suggestibility, leading questions, memory and perceptions of honesty in child witnesses. It found that children are perceived as:
- more susceptible to suggestibility during pre-court interviews
- more influenced by leading questions
- less likely than adults to intentionally set out to deceive during court testimony.
Funded by The Social Sciences and Humanities Research Council, the research suggests that all new judges should be trained in how children should be questioned, and about the types of questions that children should be able to understand. Effective communication with children and developmentally appropriate questions which children can reasonably be expected to answer make them far more reliable witnesses.
To minimize the deterioration in children's memories, the delay between the reporting on an offence and the trial should be shortened, the study also recommends. Several meetings between a child witness and the Crown prosecutor before testifying will also help minimize a child's anxiety, the study notes.