Child Victims and Inconsistency
NCA’s director, Teresa Huizar, recently wrote calling attention to a study about how the manner and type of questions children are asked at trial can lead to inconsistent statements. Here it is:
As professionals in the field, we know that having to testify in court can be an excruciating experience for children. Aside from the logistics of having to see their alleged perpetrator, the questions themselves can be confusing, intimidating, and nerve-wracking. Most distressing of all, when questions are posed to children that are developmentally challenging for them, their responses may seem to contradict earlier statements. Defense attorneys may seize on such inconsistencies to call the child’s credibility into question.
To address these issues, researchers in a newly published study examined cases to determine factors in the types of questions and manner of questioning that can lead to inconsistent statements by the child. The study is entitled “Developmental Challenges Underlying the Impeachment of Child Witnesses with Prior Inconsistent Statements.”[1] In all, the researchers analyzed 120 testimonies of 6- to 12-year-old child witnesses in 96 cases. In these cases, the child witnesses were “specifically asked about potentially inconsistent prior testimony, either at a preliminary hearing or at trial, which enabled us to examine the precise language in both attorneys’ questions and children’s answers and identify potential developmental challenges.” Id., p. 2. From the analysis, the researchers created “a categorization scheme that identifies question-types and topics that research has found are particularly challenging for younger children….” Id. The researchers then examined “whether these were present in children’s inconsistencies.” Id.
The researchers start by noting that inconsistent statements are by no means limited to the testimony of children. A 2009 study “compared 15 transcripts of 5-to-12-year-olds’ testimony to the testimony of 15 adults and found 93% of children changed their story at least once. However, so did 100% of the adult witnesses.” Id. The point is not that witnesses will have inconsistencies, but rather that we need to take a step back – at least insofar as child witnesses are concerned – and examine what question types are more or less likely to elicit inconsistencies. One important factor is the age and developmental level of the child at issue. There has been ample research indicating that “suggestive questions lead to inconsistencies.” Id., p. 3. But, as the researchers here note, “[b]eyond suggestive questioning, however, research has failed to find other predictors.” Id.
After analyzing the testimonies in the current study, the researchers “identified a total of 96 instances in which attorneys confronted children about inconsistent statements. In 29% of the instances, the inconsistency involved preliminary hearing testimony, and the remainder involved inconsistencies within trial testimony.” Id. From there, the researchers created 12 categories – and accompanying definitions – of difficulties inherent in the types of questions the children were asked that could lead to inconsistent statements. The categories include “tag questions,” “time and number” questions, “negative polarity” items, and “reluctance,” among others. Id., p. 4. As an example of the definitions assigned to the terms, tag questions are “[l]eading questions in which a declarative statement is followed by a yes/no tag (e.g., “You were scared, weren’t you?”) Id.
In analyzing the data, the researchers found that in 11% of the impeachment situations, “children were not in fact inconsistent, but attorneys misstated or misrepresented their testimony.” Id. However, in “the remaining 89% of instances, children’s statements were in fact inconsistent.” Id. Often the question types fell into more than one category and, interestingly, “[a]ll inconsistencies coded as including tag questions also fell into another category (or categories).” Id.
The researchers examined several cases in which the arguments that children’s statements were inconsistent, and therefore not credible, resulted in an acquittal. In one of the case examples, the researchers found that the combination of tag questions and time and number questions was particularly potent. The researchers believe that the “case illustrated how the defense attorney elicited inconsistencies through a combination of tag questions and temporal questions, requiring [the child] to recall specific events.” Id., p. 6. In another case, the researchers point to the use of forced choice questions and an “elliptical negative question” to elicit inconsistencies. Id.
And it was not limited to defense attorneys – in the cases analyzed in the study, the prosecutors were just as likely to engage in formats of questions that resulted in the child making inconsistent statements. For example, in one case, the prosecutor used “negative polarity” questions, which are questions “about abuse using the term any or ever.” Id., p. 4. Often, negative polarity questions “suggest a “no” response,” which in this case necessitated the prosecutor having to ask pointed questions to encourage the child to disclose what more was said or done. Id. The defense attorney then referred to this as a “dramatic change in testimony,” though the child was simply confirming what she had testified to previously, in a preliminary hearing. Interestingly, the researchers point out that the distinction drawn by the defense attorney to the seemingly glaring inconsistency actually made no difference under the law – the act would be considered a felony whether or not the prosecutor had prompted the additional statements out of the child, so “any inconsistency was an attack on [the child’s] credibility rather than evidence against illegality.” Id., p. 7.
The results of the analysis demonstrate that “although children’s inconsistencies may be due to untruthful testimony, they may also be attributable to the ways in which children are questioned about abuse, which overlook developmental limitations that lead to errors and miscommunication.” Id., pp. 9-10. While there are numerous other examples throughout the study of how not to ask questions, the researchers point to the training and practices that forensic interviewers use to improve questioning in children’s testimony, since “interviewers are taught to avoid tag and other suggestive questions.” Id., p. 10. And this is where we as CACs and MDTs come in – and it is where we can highlight another of the many benefits of working as a multidisciplinary team. I strongly encourage you to download this article and share it with your team members and colleagues, particularly your prosecuting attorneys. Working with them to ensure that they are asking age- and developmentally-appropriate questions, in formats that children can comprehend, and then either clarifying or objecting to questions asked by the defense that they cannot, can help make the courtroom less intimidating and overwhelming for child witnesses. And it will further the ends of justice.
As always, I appreciate all your work on behalf of the children and families we serve.
Warmest regards,
Teresa
[1] Full text of this publication may be found in the National Children’s Advocacy Center’s Child Abuse Library Online (CALiO™) or by contacting the NCAC Research Digital Information Librarian. CALiO™ is a service of the National Children’s Advocacy Center (NCAC). Please note: The CALiO™ login system has changed. Access details and registration form here. Once you have accessed the system: click on Registered CAC Resources; then click on Registered CACs & Chapter Access; then click on PrimaryJournal Collection; then click on Child Maltreatment; then click on View Onlinefirst Articles; then scroll down. These instructions apply at the time of this writing.
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Remember, all CACs and MDTs in NJ are NCA members, and have access to the CALiO child abuse library mentioned above. If you need help with it, contact your MDT coordinator, or us at NJCA.
