Child Witnesses - Must-Dos To Best Ensure Reliable Testimony

4/28/24, 12:56 PM Child witnesses: Must-dos to best ensure reliable testimony
APRIL 2019 | AROUND THE ABA
Child witnesses: Must-dos to best

ensure reliable testimony
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In everyday life when speaking to a child, most adults modify their language so
the youngster can understand what they are saying. But that same approach
often does not occur in the courtroom, say the authors of a recent article in
The Judges’ Journal.
In “Ten Tips for How Judges Can More Effectively Communicate with Children
in Court,” Judge Samuel A. Thumma of the Arizona Court of Appeals and his
extern, Chloe Braddock, report on widespread communication errors
involving youth in court proceedings and what you can do to minimize these
mistakes.
“Even very young children are capable of accurately recalling events,” say
Thumma and Braddock, citing research on the topic. But they say the failure to
question young people appropriately, and the common use of complicated
language by adults typically lead to incorrect or inadequate answers that
undercut the truth-seeking process.
Communication problems happen more often than you think. The authors
note that 1 in 4 (or more) questions posed to children is too complex, according
to multiple studies. And of equal concern, at least one study indicates that
youth will only ask for clarification or mention that they do not understand
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While Thumma and Braddock’s advice is targeted to judges, their guidance is

relevant to all legal professionals working with children.
Among their 10 tips, here are five stand-outs:
1 Use simple words and syntax – Eschew acronyms and legal jargon,
and avoid complicated, long and unfamiliar words. Thumma and
Braddock say most young people will answer incorrectly before saying
they do not understand a question.
Simple sentence construction is vital, too. “What makes sentences

simple, or complex, is not necessarily their length, but how long it
takes the listener to process the sentence,” say the authors, noting that
the key to an understandable sentence is to use just one subject and
one verb and to keep that subject and verb next to each other.
“Minimizing processing time by keeping sentences simple and starting
with the main idea will help a child understand the question and
answer properly.”
2 Use positive, active language – “One study found that children’s

answers are correct only 50 percent of the time when answering a
question that used either single or double negatives, but are correct
between 70 and 100 percent of the time when the question used
positive language,” report Thumma and Braddock. As an example,
consider how the latter question is more understandable than the
former, even for adults: “Did it not hurt when you were hit by him?”
versus “How did it feel when he hit you?”
Moreover, avoid passive language, as studies suggest young children

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Think literally – To children, “each word has a very specific meaning

3
and they may have a hard time thinking more broadly,” note Thumma
and Braddock. They point out that children may learn that a question
like “Are you okay?” is asking about how they are feeling – not if they
are “okay” at what they are doing, or more generally, if they are an
“okay” person.
For a child, “a house may have a meaning that excludes an apartment;

a car may have a meaning that excludes a truck; and touch may have a
specific meaning that excludes a punch,” the authors say, advising
those questioning young people to consider how a child might think.
4 Avoid pronouns – Pronouns can be very difficult for a child to track,

say Thumma and Braddock. They cite one study that suggests that a
full mastery of pronoun use may not come until middle school years
or beyond. Use the name or the person or object to avoid confusion
and add clarity, the authors suggest.
5 Frame questions – Consecutive questions and sudden shifts in topics

can be jarring and may result in confusion for a child. Make clear the
focus of your question and consider framing your set of questions
with a title, Thumma and Braddock recommend.
It can be as simple as, “Okay, we just talked about topic one; now we are
going to talk about topic two.” Such framing may help a child focus on
the individual topic at hand, which may help recall and allow for more
reliable answers.
Despite your best effort to obtain more reliable testimony, some

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For further detail on these tips as well as a full listing of all 10, download “Ten
Tips for How Judges Can More Effectively Communicate with Children in
Court.”
The Judges’ Journal is an award-winning quarterly publication of the ABA

Judicial Division. As a member benefit of the division, the publication is
designed to keep members current on issues affecting the courts and promote
discussion about the direction of the judicial process. Explore membership
with the Judicial Division.
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4/28/24, 12:56 PM Child witnesses: Must-dos to best ensure reliable testimony

APRIL 2019 | AROUND THE ABA

Child witnesses: Must-dos to best

While Thumma and Braddock’s advice is targeted to judges, their guidance is

Among their 10 tips, here are five stand-outs:

Simple sentence construction is vital, too. “What makes sentences

2 Use positive, active language – “One study found that children’s

Moreover, avoid passive language, as studies suggest young children

Think literally – To children, “each word has a very specific meaning

For a child, “a house may have a meaning that excludes an apartment;

4 Avoid pronouns – Pronouns can be very difficult for a child to track,

5 Frame questions – Consecutive questions and sudden shifts in topics

Despite your best effort to obtain more reliable testimony, some

The Judges’ Journal is an award-winning quarterly publication of the ABA

LITIGATION & TRIALS

The material in all ABA publications is copyrighted and may be reprinted

American Bar Association |

We are making improvements to our user experience and

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