Eric G. Mart, Ph.D., ABPP | April 6, 2013
Preliminary research indicates that child witnesses produce more inaccurate responses when asked complex questions by defense attorneys. Although this has been thought by some to undermine jurors’ perception of the reliability of statements made by child witnesses, beyond some preliminary studies there has been little research on the effect of complex questions directed to children in trials. However, a study entitled “Complex Questions Asked by Defense Lawyers But Not Prosecutors Predicts Convictions in Child Abuse Trials” was published in the June 2009 issue of Law and Human Behavior, which is the journal of the American Psychology-Law Society (the Forensic Psychology Division of the American Psychological Association) which provides important preliminary information about this issue.
The authors of this article, utilizing techniques derived from applied linguistics, analyzed the complexity of questions put to child witnesses drawn from felony child sexual abuse cases in Los Angeles County, California. Their analysis found that, on average, there were no significant differences between the number of words used by defense attorneys and prosecutors, nor was there a significant difference between the complexity of questions used by either group of attorneys. However, these researchers found that while the relative complexity of questions asked of children by prosecutors did not affect the outcome, the use of more complex questions by defense attorneys was associated with juries returning more guilty verdicts. Further, this trend was a powerful one, with the use of more complex questions by defense attorneys having been shown to be associated with double the rate of convictions of the defendant.
What is the explanation for this powerful relationship between the complexity of questions that defense attorneys ask child witnesses and increased conviction rates? It is not possible to know for sure from one study. The authors suggest two alternative theories: the first is that complex questions from defense attorneys that produce confusion or “I do not know” answers from children may be seen as unfair and increase juror empathy for the child. An alternative theory is that defense attorneys may be asking more complicated questions of child witnesses in situations where the prosecution has a stronger case. In either case, defense attorneys may wish to give serious consideration to how they structure questions asked of child witnesses in sexual assault cases and attempt to make the questions easy to understand and answer.
References
Evans AD, Lee K, Lyon TD. Complex questions asked by defense lawyers but not prosecutors predicts convictions in child abuse trials. Law Hum Behav. 2009 Jun;33(3):258-64.