Children on the Witness Stand: How the Language of Cross-Examination Confuses Child Testimony

by Adeline Van Buskirk

The purpose of a courtroom trial is to reliably reach the truth of the matter at hand and administer justice as required. To arrive at the truth, it is usually necessary that lawyers question witnesses. Ideally, this process involves straightforward questioning that rationally leads the witness to reveal what they know; witnesses should not feel coerced or misled by the line of questioning. However, this is often not the case. Due to the nature of the lawyer-client relationship, in which the lawyer is frequently more dedicated to protecting their client’s interests than preserving the procedure's integrity, lawyers are incentivized to deceive witnesses on the stand (Tiersma 1999, 164). Lawyers, who are trained in legal jargon and proceedings, are in control of the questions asked and the extent to which witnesses can answer. This power imbalance allows them to use tactics, such as leading or loaded questions, to mislead witnesses on the stand. For the highly-educated witness, a deceitful line of questioning may not pose a problem. These people can reject the assumptions of lawyers and carefully articulate responses to complicated questions (Tiersma 1999, 174). But for the less fortunate and experienced witnesses, such as someone with little education or who speaks a dialect other than Standard American English, this style of questioning poses a serious barrier to reaching the truth and gives lawyers the power to unjustly influence the outcomes of cases (Lippi-Green 1997, 184). One type of such vulnerable witness is children, who frequently appear in domestic abuse, divorce, and sexual assault trials. Due to their limited ability to comprehend the meaning of the language used in questions, children are especially vulnerable to confusion as witnesses during cross-examination in a court of law.

Children have underdeveloped language skills that keep them from fully understanding questions and responding appropriately. For example, many children up to age three struggle to interpret sentences using passive verbs because they have been taught that the subject of a sentence should appear first (Shuy 2005, 10). So, a question such as “were you yelled at by him?” could be misinterpreted as “did you yell at him?” which may elicit a response opposite to the truth. In a similar vein, children as old as five or six can have immense difficulty deciphering pronouns and indexicals in questions (Walker 1999, 26). Pronouns are words that replace and refer to other nouns, such as “she” or “its,” and indexicals are words that change associations depending on the context, such as “here” and “that.” Children often fail to identify which nouns and pronouns refer to the same person, so a sentence such as “do you know if he saw him?” could prompt several contradictory responses from children. This is because children struggle to keep track of the information in situations with multiple characters, situations, or clauses. Kids up to age eight struggle to recognize the contrast of certain indexicals, such as “here/there” and “this/that” (Shuy 2005, 7). This could cause confusion when questioners explicitly utilize these contrasts, such as in the question: “did you put it here or there?”

Questions with negatives can pose a challenge for understanding by children of any age, and even some adults (Walker 1999, 42). Like in verb use, children typically learn that negatives appear in main clauses, and fail to understand them when they appear in dependent clauses. So questions such as “did you explain that he was not nice?” might become “did you not explain that he was nice?” which are nearly opposite in meaning. Further, double negatives can be extremely confusing for children to decipher, such as in the question, “do you deny that you never returned?” (43). Before children enter the intense courtroom environment, they are prone to misunderstanding even straightforward questions. Once these questions become more complicated or misleading, they become much more difficult for children to comprehend.

There are several types of questions and techniques that lawyers use during cross-examination to obtain information from their witnesses. A leading question indicates to the witness that there is an expected answer, such as the question, “didn’t you go to the park this weekend?” (Tiersma 1999, 164). This particular leading question utilizes a negative yes/no question to indicate that the answer should be positive, though the true meaning of the sentence is complicated. This same tactic can be achieved by adding tag questions to the end of statements: “you went to the park this weekend, didn’t you?” (168). Lawyers use leading questions to guide the narrative of witness testimony. To avoid falling into this trap, witnesses must be able to understand the question and have the confidence to go against the guidance of the lawyers. Another frequently used tactic is asking loaded questions. Loaded questions hold within them presuppositions, or propositions that may or may not be agreed upon by the receiver (Walton 1999, 381). A loaded question could be: “did you plan on yelling?” This question presupposes that the yelling has occurred because this is not the ‘at-issue’ content; what is up for discussion was whether or not it was planned. Responding to loaded questions requires the answerer to recognize the unshared presupposition and demonstrate that they do not agree with the context. Due to the nature of courtroom proceedings, lawyers tend to speak very formally (Tiersma 1999, 168). While some lawyers do this with the intention of increasing their credibility, this often has the impact of adding confusing or unnecessary words. Take this question from the trial of the murder of Sandra Jackson, for example: “Now, what if any effort was made on your part or on the part of Dr. Weatherall, Doctor, to determine whether this young man immediately prior to his death had ingested any heroin?” (169). This sentence adds unnecessary words, such as “if any.” It uses “on the part of” rather than the simpler “by” and “prior to” rather than “before.” To get to the heart of the question and respond honestly, the witness must be able to keep track of multiple subjects and parse through verbose language.

The courtroom evidently requires a higher level of linguistic ability than everyday life to understand and respond to leading questions, loaded questions, and wordy language. Thus, children, with their especially limited language skills, are particularly susceptible to misinterpreting questions in court. For example, the following testimony came from a six-year-old boy in a cross-examination (Myers 1987, 883):

Q: Now, Billy, if I said my shirt was red, that would be a lie, wouldn’t it? A: Yes. Q: So I shouldn’t say my shirt is red, should I? A: Yes.

These leading questions utilize negative tag questions to add an element of persuasion and confusion. The repeated tag questions are meant to elicit a yes and then a no answer. But, due to the child’s limited understanding of negative questions, he is unable to respond as the lawyer plans – depending on the lawyer’s intentions when using confusing language. Either way, the child contradicts himself and ultimately discredits himself as a witness. This is no fault of his own, but only due to the confusing questioning by the lawyer and his limited understanding of language. Another example of a lawyer using their persuasion on a child comes from the testimony of a four-year-old boy in a domestic violence case (Myers et al. 1989):

Q: Do you remember the last time that we talked, and that me and you were going to get an ice cream, and do you remember my friend that was with me? The other guy that had a beard like I do? Do you remember him? A: Yes, I remember that.

The lawyer and child had never met, and everything in the question was fabricated. This line of questioning uses numerous confusing clauses and involves multiple characters. Further, this loaded question presupposes that the two had met (and planned to get ice cream with a third person). The addition of unnecessary clauses, such as the anecdote about the ice cream, increases the amount of information the child must handle at once. The creation of the third character, the unknown man, adds to the confusion, especially when the “him” pronoun is used in the final sentence. This question requires the child to keep track of multiple actions and remember which person the pronoun is referring to. Rather than admit that this question is too much for him to understand, the child pleases the lawyer by stating he remembers these falsified events. Once again, the child is completely discredited; the judge and jury are unlikely to believe a child who readily admits to remembering events that never occurred.

Testifying in court requires a high level of linguistic ability to comprehend the questions asked, avoid unjust persuasion by lawyers, and keep track of relevant information (Tiersma 1999, 168). Not only do children struggle with these tasks, but they often have a hard time completing much more basic ones, such as identifying pronouns, recognizing negatives, and comprehending passive voice (Shuy 2005, 7). So when children take the witness stand, they struggle to understand what is asked of them and are often overwhelmed, nervous, and easily manipulable. This struggle, compounded with the culture of the courtroom which prompts lawyers to protect their client's interests above the child’s well-being, allows and encourages lawyers to discredit the accounts of children. But when the testimony of a child is a critical factor in a case, children must be able to use their voices to state the truth. To do this, children need more protections and assistance in court. There is no easy answer when it comes to child testimony – age limits on testimony and required corroboration will only serve to silence children further – but first understanding the limitations of children’s

language will allow interrogators and their observers to have a better understanding of what is true and what is a product of confusion (Hedderman 1987). Allowing children to tell their stories in their own words, without the forced question-answer structure, will take some control away from the lawyers and let children express themselves to their ability (Shuy 2005, 18). That said, these are necessary changes in the courtroom procedure, and they will serve to fulfill the court’s intended purpose of reliably reaching the truth.

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