Litigation

Cross Examination of Children

The cross-examination of children requires a different approach than one that you would take with adult witnesses.


The cross-examination of children requires a different approach than one that you would take with adult witnesses.

The evidence of children must be handled carefully when conducting a cross-examination. Firstly, it is important to recognize that children respond to questions in a different manner and that the framing of the questions must be carefully considered. Secondly, there is always a concern about the reliability of the memory of young children, and in particular concern as to whether there have been unintentional or intentional influence placed on the child.

The questions to a young child should be framed using simple language that is easy for a child, of the age in question, to understand. Children are often suspicious of strangers so a confrontational tone would not be appropriate unless the child themselves adopts a highly confrontational tone with the lawyer. It may assist to try to gain the child’s confidence at the outset of the cross-examination. You may talk about the child’s interests, or you may tell the child you need their help in understanding the facts of the case.

With respect to the content of the child’s evidence, the cross-examining lawyer should always be alert to reliability issues generally with regard to the child’s memory, and specifically with regard to the issue of any influence placed on the child. Children are more susceptible than adults to being influenced by their surroundings such as what they see on television. They can also be influenced by leading questions by investigators or therapists. They may also be exposed to adults who are convinced that an offense had occurred.

With respect to the content of the child’s evidence, the cross-examining lawyer should always be alert to reliability issues generally with regard to the child’s memory, and specifically with regard to the issue of any influence placed on the child. Children are more susceptible than adults to being influenced by their surroundings such as what they see on television. They can also be influenced by leading questions by investigators or therapists. They may also be exposed to adults who are convinced that an offense had occurred.

Any adults can potentially have an impact on the evidence of a child. These could include police officers, therapists, or family members. If these people are speaking to the child in a way that assumes that the alleged offense occurred, and not attempting to determine what parts of the version are accurate, then they may reinforce a false disclosure.

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