Cross Examining Child Complainants in Sex Abuse Trials

Joseph A Neuberger and Nick Whitfield

The cross examination of child witnesses in sex offence trials presents a unique challenge in Canadian criminal defence work. Despite the introduction of testimonial aids such as CCTV and support persons to assist child witnesses, the cornerstone questioning technique of Canada’s adversarial system can fare poorly in the face of youth’s vulnerability. In the years since the Supreme Court forbid belief in children’s inherent unreliability (R v W(R), [1992] 2 SCR 122), attitudes toward the evidence of children have continued to evolve, and material inconsistencies in a child’s testimony may now not be enough to avert a conviction.[1] Where once they roused suspicion, children today claiming sex abuse enter courtrooms with a veneer of credibility, captured in the commonplace refrain, “why would they lie?”

Though lawyers may have compelling theories about a child’s motives for inaccurate testimony – false memories, for instance, or the coaching of a malicious adult –judges will not take kindly to infringements on children’s welfare via aggressive, repetitive, or improper questioning.[2] Under the protective gaze of Canadian courts, the presumed innocence of the child witness has become a fair match for the presumed innocence of the accused. Lawyers must navigate young witnesses with kindness and caution, mindful that triers of fact will not apply adult standards to the assessment of children’s evidence.

I will raise one important point about memory.  The controversy surrounding partial or recovered memory remains a legitimate cause for concern as a foundation for wrongful convictions.  Children may understandably not remember traumatic events the same as adults and mere inconsistencies are not significant.  But when issues of recovered or fractured memories arise, it is vital to consult an expert and carefully scrutinize the evidence and possible influence of experts such as therapists.

Suggestions for Cross Examining Children: Structure

• Begin by building a rapport. Ask questions about hobbies, interests, and schooling. A solid camaraderie fosters trust and creates a comfortable atmosphere for further inquiries.

• Shift gently to non-substantive questions about events surrounding the alleged incident. Ask about the overall scene and the people present to gauge the child’s memory. 

• Ask substantive questions in non-chronological order. Since children tend to recall events in linear fashion, asking for factual details “out of order” tests the consistency and reliability of their recollections.

• Explore external influences and pre-coaching by social workers, family members, or the police. Ask the child who they spoke to prior to making a statement. The frequency and content of such discussions provides important clues as to possible influences on a child’s perception.

• Broach a child’s credibility with questions on truth-telling – when did they last tell a lie and for what reason? And broach reliability with inquiries about susceptibility to suggestion, such as the role of a parent’s leading questions in shaping the child’s testimony.

• Throughout questioning, speak slowly and clearly, and instruct the child at the outset to tell you if they do not understand a question. Avoid an aggressive or accusatory tone, but equally refrain from praising an answer in case of encouraging similar “praiseworthy” answers.

Suggestions for Cross Examining Children: Language and Grammar

• Keep questions brief and simple. Use subject-verb-object formulations and avoid nested phrasing.
• Use plain language and avoid legal terminology. Keep questions short and restrict each question to a single idea.
• Do not use irony, sarcasm, or humor.
• Use concrete/specific terms rather than abstract/generic ones, for instance “gun” rather than “weapon”. Use specific, concrete language when describing objects of places, for instance “did you go to the park?” rather than “did you go there?”
• Avoid using pronouns in place of a person’s name – simply repeat the person’s name for clarity.

Cross-examination is a detailed process that requires preparation and skill.  Preparation is the key and plotting out the cross-examination will help to focus the points for a more effective defence.

 

 

 

[1] See e.g., R v Barua, 2014 ONCA 34 at para 25. For a review of considerations in the assessment of the credibility and reliability of child witnesses, see R v MB, 2019 ONCJ 349 at para 22.

 

[2] See Nicholas Bala, “Child Witness Provisions of the Criminal Code & Canadian Evidence Act: Trends and Issues in Reported Canadian Cases, 2009–2017”, Department of Justice Canada.