Methods are available to Ensure Reliability

From – Missouri Lawyers Weekly

November 9, 1998


Lawyers who interview young children in preparing a case must take certain steps to ensure that the information they get is reliable, experts say.

For while many children have good memories, the way they perceive and express “facts” is often colored by a child’s-eye-view of the world.

And a child’s statements can also be tainted by leading questions, parental influence, strange surroundings and the demeanor of the interviewer. To elicit reliable information from children, experts say lawyers should: understand the stage of development of the child; make the setting as comfortable as possible, prepare questions that are “age appropriate”; probe to see if parents have been coaching the child; and keep it short.

“Children can give you a lot of information,” says Kansas City attorney Leah M. Gagne. “But you have to know how to structure your questions.

“If you don’t think about it in advance, children won’t understand your questions and you wont understand their answers.”

Child Development

One of the most important tools for interviewing children is a basic understanding of child development, say experts.

“Many attorneys don’t realize that what a 6-year-old understands differs from what a 10-year-old understands,” says Gagne. “These are very different ages in terms of language skills and ability to reason.

“For example, it’s difficult for a 6-year-old to understand abstract concepts of time. Their world doesn’t revolve around hours, minutes, days, weeks, and months. They mark tune and remember things by events that are important to them – their birthdays, Christmas, when school starts or gets out.

Children also have a different conception of space, according to Catherine Ward Keefe of St. Louis. “Everything is bigger, larger, different to kids,” says Keefe. “If they’re in a small auditorium with 100 other people, they’ll say they were in this huge building with ‘a million’ people.

“Children have a smaller range of comparison – they just haven’t seen and experienced as much.”

Because children experience the world in ways that are different from adults, attorneys who are seeking information from children should try to imagine the world as the child sees it. “You should try to remember what it was like to be a kid,” says Keefe. “And attorneys should try to talk to children on their level.”

In addition to knowing the basic stages of child development, experts also stress the usefulness of learning about the particular child from parents, teachers, and doctors. “It’s important to know where this child is developmentally,” says Keefe. “There’s a lot of variation. Some 5-year-olds may not be able to be a witness, while others could turn out to be wonderful witnesses.

“You should find out about any problems or impairments that a child may have. Does he have reading problems, or medical problems? You should especially look for things that may affect their understanding of what they will be saying.

The Interview

In order to conduct a successful interview, attorneys should try to reduce the intimidation factor. “You’re a big stranger to the child,” says Keefe. “He doesn’t know why he’s there, he’s not familiar with you. You need to make yourself someone he’ll want to talk to. ”

The setting for an interview can play a large role in its success. “I prefer to do home. visits,” says Gagne. “It’s more comfortable there, less intimidating. I’ve seen attorneys try to interview a child at court, or stuck in the comer of some office and it doesn’t go well.”

Others prefer to interview children in their offices, but still make an effort to meet the child at their level. “I’ll get down on my knees to talk to a child,” says Terry A. Tolbert of Strafford. “But that’s partly because I’m 6 feet 6 inches tall. I try not to stand in front of them.”

“I try to sit at their level,” says Alan N. Zvibleman of St. Louis “I don’t like to stay behind my desk. I like to get on the floor with them. And if I’ve got my suit on, I’ll loosen my tie and try to make it less formal.”

Some attorneys like to use toys to break the ice and reduce the tension felt by the child. “Sometimes I’ll bring in toys and let them play with them,” says Tolbert. “I’ll also ask them what they like to do, things like that. I don’t like to start off with point-blank questions. ”

“I’m a big believer in using props to help them get over feeling nervous,” says Leigh Joy Carson of St. Louis. “I have a computer game where the kids can made up people out of parts, kind of like Mr. Potato Head, and they love that. Or I let them draw with crayons and markers.

“It’s kind of a trick, I guess, but it helps to get them involved with doing something. Sometimes they’ll talk more when they’re doing something.”

In addition to having toys at the office, experts will encourage children to bring something in to talk about. “One father had his little girl bring in pictures of the family,” says Carson. “So I asked her to tell me who everyone was, and that got her talking.”

Questions And Answers

After establishing a rapport with the child, the attorney usually begins asking direct questions. And experts say it is important to formulate questions in the child’s own vocabulary.

“You’ve got to keep your questions as simple as possible,” says Deborah C.M. Henry of St. Louis. “You should use their words for things.

“In abuse and neglect cases, for example, if you use anatomically correct words that the kids don’t understand, they’ll agree to things that never actually happened.”

“You’ve got to keep things at their level,” agrees Scott Rosenblum of St. Louis. “They won’t tell you if they don’t understand a question – but they may answer it anyway.” In addition to keeping questions simple, experts say attorneys should keep in mind how the child perceives the world. “If you ask, Was the car over the yellow line when the accident happened,’ and the child may never have noticed the lines in the road, he may not understand what you are saying,” says Keefe,

Attorneys who need a child’s testimony about the time an event happened need to be especially creative. “If you need a child’s help to establish a time sequence, you should think in terms of their day,” says Henry. “You can’t use dates, or the time of the clock. You should ask, Was it cold out then? Were you wearing a sweater? Had you eaten lunch yet? Was it light outside?

“A lot of kids can tie events to the TV schedule. They know which show was on when something happened. And most kids have some kind of routine that you can use to jog their memories and narrow things down.”

Because children are eager to please, experts also recommend that attorneys avoid leading questions. “Children are more susceptible to suggestion than adults,” says Robert B. Best Jr. of Kansas City. “In my experience, you’ll get honest answers if you avoid leading questions. Just ask them to tell the store and let them talk.”

Ifs easy to taint a child’s testimony,” says Carson. “I only use leading questions to establish rapport. For example, I’ll say, “You’ve got a brother, don’t you? But when it comes down to the substance, I don’t want to suggest an answer in my questions, so I’ll make them more open-ended.

Questioners should also remember that children have limited attention spans. “I always try to keep things brief,” says Best. “Usually no more than 30 minutes. You should keep your questions precise and simple so you don’t waste time. If you haven’t thought them through in advance, you’ll waste the child’s limited attention span.

In many cases, a second interview may be necessary. “Interviewing children takes time,” says Carson. “You can’t expect to sit down with a kid for 10 minutes and find out what you want to know. And sometimes you may need to bring them in a second time, after they’ve gotten more comfortable.”

Coached By Parents

In addition to determining at the outset whether a child appears capable of giving reliable testimony, experts also say attorneys should probe to see if a child’s story has been influenced by parental coaching. “A child wants to please his parent, and that’s going to color his answers,” says Best. “If a parent makes a concerted effort tailor his child’s testimony, the child will rationalize accepting the parent’s version and be very comfortable with it.”

Parents can even influence their children’s testimony without trying, say some experts. Plaintiffs’ attorneys should probably tell their clients not to talk about the suit in front of their children,” says Gagne. “Parents should just tell their kids to tell the truth. “If they talk about the suit and the money they’re seeking when the kid is around, they may influence what he says. And he also might blurt out in open court, “My daddy says we’re going to sue and get lots of money

Although there are no foolproof means determining whether a child’s story is liable, experts say there are some signs that a child has been coached.

“If you’re dealing with a small child and he uses big words, that’s a pretty good sign that he’s been doing some listening,” says Gagne. “You have to know where a child ought to be developmentally, and really listen to them.”

“I had a kid in a custody matter who told me, ‘My dad provides me with nurturing, support and guidance,”‘ says Carson. “That didn’t sound like the language of a child to me. ‘And if a kid says, ‘My dad abuses me” I get pretty suspicious, Most kids don’t use words like abuse.'” If something traumatic has really happened to them, they’ll usually hesitate and stammer when they tell it.”

The direct approach can also work. “I’ll ask a kid, ‘Did mom or dad tell you anything to tell me today?” says Carson. “I told one kid, “That was really good how you said that,’ and he said, ‘Yeah, I’ve been practicing and practicing – my daddy helped me.”

In addition to the problem of influence on a child’s testimony, attorneys also must take into account the unpredictability of child witnesses. “You can’t count on a child,” says Keefe. “The reality is, they’re not beholden to anyone. They’re going to tell the story they’re going to tell.

“You can never be sure what a child is going to say,” says Best. “They’re uncontrollable – they might say one thing in a deposition, and another at trial.

“It’s difficult to present a defense or a case on the basis of a child’s testimony. I would always want to have other witnesses and other evidence.”

Adverse Child Witnesses

The problem of dealing with an adverse child witness is particularly difficult because of the sympathy children elicit. “Juries are very protective of children, and rightly so,” says Rosenblum. “you have to take a very gentle approach.”

“But you can’t leave any witness unchallenged, even a child. So you have to devise a plan at the earliest opportunity of how to establish that the child should not be believed. And you have to craft your examination around that plan.

One obvious strategy is to show that a child’s testimony has been influenced.

“It’s essential to get in early and find out all of the forces at play on the child,” says Rosenblum. “There are the parents, obviously. But are there mental health professionals? DFS workers? Teachers? When there are a lot of forces in play, there are a lot of chances for the child to fabricate, even innocently”

Attorneys can point out to juries the use of adult language or overly sophisticated ways of dunking that are the signs of adult influence. “I think that sometimes times the best cross examination is to ask some open-ended questions and just let the kid talk and let the rote, prepared story come out,” says Rosenblum. “A child can repeat a prepared story precisely because it’s prepared and committed to memory. And juries can see that.”

The direct approach can also be effective, says Best. “I’ll ask an adverse child witness, How many times have you talked about this before with your parents and the lawyers? A lot of times, a child will tell you directly. And the juries will take that into consideration.” Other attorneys use the cross-examination to show that a child cannot distinguish fact from fantasy. Zvibleman said, “In a criminal case I was involved in where a child claimed sexual abuse, I asked the child what her earliest memory was. And she said she could remember being a premature baby and some clothes she wore then.

“The more she talked, the more it was clear she couldn’t tell what she remembered herself from what she had overheard and parroted back.”