England rewrites rules on cross-examining young children
There is always a certain fascination in watching a revolution, provided of course you aren’t in the thick of it.
In a couple of previous articles for LawTalk I have written in general about the English courts’ radical new approach to the cross-examination of vulnerable witnesses in criminal trials. This article outlines the new rules they are evolving, although in all honesty none of them are that new – or rather, the principles behind them are very old.
Essentially, the English Court of Appeal has put the onus on counsel to communicate clearly and non-suggestively with children. They have then taken notice of the research on what children of various ages can and can’t understand (of which, as I’ve said before, there is a tonne) and they are urging trial judges to police accordingly. And trial judges, may I just say, are, by and large, loving it.
Judges over there have to have accreditation to take sex cases, where most children appear, so they are primed and ready to spot a developmentally inappropriate question. There are still glaring exceptions, but generally they are very keen to manage cross-examination proactively.
That means pre-trial discussion of the language issues and, if your judge is really hot under the collar about this stuff, having to submit a list of questions – your actual questions, verbatim – in writing for his/her approval.
This is a quick taster of the rules English advocates are expected to comply with:
Keep it simple
- use developmentally appropriate language;
- keep questions short;
- address one issue at a time;
- no long, multi-clause questions; and
- no asking several questions at once.
Keep it straight
- Avoid contaminating a vulnerable witness’s answer with suggestive leading questions, and, in particular:
- No tag questions: with “isn’t it” or “didn’t you?” and the like; and
- never accuse a young or vulnerable witness of lying: the stress of the accusation will deprive their responses of real evidential value.
Keep it short
- 15 to 20 minutes total is a good rule of thumb;
- only ask what you actually need; and
- use other witnesses to address issues if possible.
Keep it meaningful
- Do not ask questions the witness can’t answer – even if they are part of your case.
- Instead, get permission to put the rest of your case to other witnesses or in submissions, with an appropriate judicial warning to the jury.
For a full list, see the Advocate’s Gateway at www.theadvocatesgateway.org, now virtually required reading for anyone about to examine a vulnerable witness in England.
What do the rules mean in practice? Here are a couple of examples from the case law:1
R v Edwards2 concerns a six-year-old complainant – unusually young for us, but in England these days “unusually young” means four or even three.
The allegation was that the child’s stepdad had punched her repeatedly in the back and stomach. The defence was denial: the child had had a play fight with an older friend the day before the injuries were discovered, and had fallen out of her bunk bed during the night.
At the outset of the trial the judge turned to the jury and delivered the following direction. He had, he said, told defence counsel that he: “can and should ask any question to which he actually wants answers, but he should not involve himself in any cross-examination of [C] by challenging her in a difficult [sic] way. In this case the defendant has already set out in some detail what his defence is. It is not a question of putting it to the witness and challenging her about it.”3
Alternative explanations for her injuries were to be covered largely by cross-examining the Crown’s medical witnesses. Questions like “[The defendant] didn’t punch you, did he?” were out. In fact, the judge forbade any question ending with “didn’t it?” or “isn’t it?”
In R v W & M,4 an eight-year-old complained that a 10- and an 11-year-old had sexually violated her. The defence, again, was denial. Near the end of cross-examination, she was asked the following:
Q. [The defendant] did not put his willy in your bum, did he?
Q. [The defendant] did not put his willy in your minnie, did he?
A. No. 5
Defence counsel, understandably, sought to have the case withdrawn from the jury. The judge refused, saying it was open to the jury to regard the retractions as the result of heavy suggestion.
Both cases resulted in convictions. Both cases were appealed. Both appeals were rejected.
What the English Court of Appeal has done is actually very simple and entirely in line with previous case law.
If, they reason, cross-examination’s essential function is to investigate the evidence – to live up, in other words, to Wigmore’s description of it as the greatest legal engine ever invented for the discovery of truth – there can be no justification for tactics proven to be entirely useless to the investigation – or, worse, to produce blatantly unreliable results, however time-honoured they may be.
Accordingly, as it has been inescapably and repeatedly proven that heavily suggestive tagged questions are likely to produce unreliable answers from children, they are out. Equally well-proven is that children can retain good memories of the central events of an assault while entirely losing track of peripheral details, so trying to impeach a child on the basis of their lack thereof is a waste of court time.
Further, the Court of Appeal also re-read the case law.
The original cases make it very clear that the duty to put the case isn’t owed to the defendant but to the witness, who has a right in natural justice to answer allegations. OK, reasoned the Court of Appeal, then if the witness is incapable of responding meaningfully to an allegation, the duty is void and the question should not be put.
But, quid pro quo: counsel cannot be penalised for not putting the case in such a circumstance and must be given a specific opportunity to tell the jury what they would have raised, had the witness been more robust.
Finally, the court turned a steely eye on the very oldest cases on cross, from the late 18th century, which outlaws questions used to comment.
Let’s be honest here: this is one of those rules to which everyone pays lip service and everyone ignores. Not any more if you’re appearing in England, even if you dress it up with a question mark on the end.
This is heady stuff, and alarming. However, unsettling as it may appear, because it is actually principled and based on a clear understanding of the case law and because it is so strongly based on the research, this is, I suggest, an approach we could learn from.
If, that is, what we want is truly rigorous and reliable method of cross-examination – and not just the opportunity to play games with those who can’t keep up with us.
Dr Emily Henderson, is the New Zealand Law Foundation’s 2012 International Research Fellow. A former Crown prosecutor in Whangarei, she has also practised as a family lawyer. The reform of cross-examination is Dr Henderson’s primary research interest. Her 2001 PhD from Cambridge was awarded for her thesis on Cross-examination: A Critical Examination. As the International Research Fellow she will research the principled reform of cross-examination in the criminal trial, comparing more radical options under discussion in New Zealand recently with the situation evolving in the English criminal courts.
- See also R v Barker  EWCA Crim; Wills v R  EWCA Crim 1938.
- R v Edwards  EWCA Crim 3028.
- Edwards .
- R v W & M  EWCA Crim 1926.
- W & M . There is also a possibility the child’s response could be misinterpreted given the notorious complexity of tagged yes/no questions. See Fairness in Courts and Tribunals – A Summary of the Equal Treatment Bench Book (2010) London, Judicial College; Plotnikoff & Woolfson in Spencer & Lamb 2012 at 29-30.
Last updated on the 17th March 2016