BY CHRIS BROWN
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."
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