Guidelines on How a Child Should Be Questioned in Court
“The True Character of Society is Revealed in How it Treats its Children.”
– Nelson Mandela
Acknowledging a child victims’ rights and dignity and treating them with respect and sensitivity is the first step towards a fair trial. For child victims of sexual offences, testifying in court can be a stressful and upsetting experience. A traumatic courtroom experience can put not just the child’s recovery in jeopardy but also the very idea of truth and justice.
The following guidelines on ‘How a Child Should be Questioned in Court’ have been framed by iProbono, an initiative that provides free legal assistance to civil society organizations. In October 2014, they successfully represented a young child victim whose credibility as a witness had been previously questioned by the Trial Court. The High Court based its decision primarily on the testimony of the child, and criticized the trial court for not attaching due importance and credibility to her testimony. The Guidelines take the salient parts from this judgment and also draws from other cases and international standards.
The guiding principle is that “children deserve a fair hearing and a safe, secure future.”
Summary of Guidelines on How a Child Should Be Questioned in Court
It is essential to ascertain whether a child who is placed in a particular situation (the courtroom) and asked questions about an event they either witnessed or experienced can distinguish what is the truth and what is a lie. All questions must be age appropriate.
Substituting the word ‘promise’ for the word ‘oath’ when swearing in child witnesses has become increasingly more common and accepted throughout the legal system.
To ascertain whether the child can distinguish truth from lies, questions relevant to the situation should be asked. For instance, “If I told your mother that you shouted at me, would that be a truth or a lie?” or “If you told your teacher that something bad happened to you, but really it did not happen to you, would that be a truth or a lie?”
Children should be asked what might happen to them and the other person if they say something occurred and it is not true. Examples of such questions are: “If you said that your sister hit you and it really did not happen, what would happen to you for telling a lie?” and “If you said that your sister hit you and it really did not happen, but your mother believed you, what could happen to your sister?”
Young children are very literal in their use of language, so it is essential to find out what they mean when they use certain words and not assume that they have the same meaning as an adult would give them.
It takes children longer to process words, so it is essential to give them time to think and respond to the question. Pausing during questioning can be very productive.
Children will not say they do not understand, whether because they do not realize that they do not understand or because they do not want to show ignorance; they may not be aware that this is an option unless expressly told that it is.
Use one question for each idea and start the question with the main idea. For example, ask children, “Did the bell ring when you were eating?” rather than asking, “When you were eating, did the bell ring?”
Avoid jumping from one topic to another during questioning.
Do not use the word ‘any’ (including ‘anything’, ‘anyone’, ‘anywhere’) as these are not specific. For instance, a very young child will not know what ‘anyone’ means and if asked, “Did you see anyone” will answer “no”. Instead ask, “Who did you see?” or “Did you see X?”
Avoid using ‘different’ or ‘the same’ while questioning children. Asking “Was it the same as this?” is confusing for the child. By age 5 or 6, children may be able to distinguish between “the same” toy – meaning the actual one they played with – and a similar one, but it may take several more years to appreciate that things generally similar are regarded by adults as different.
The word ‘inside’ is problematic for children. In sex abuse cases involving suspected penetration, a child may need to be asked if an object was inserted ‘inside’ an orifice. This is fraught with difficulties. It is essential to find out what the child understands by ‘inside’. For example, anything between the legs could be perceived as ‘inside’ by the child and the question needs to be asked in an age-appropriate way.
Avoid using either/or questions. Adults recognize that neither choice may be accurate; this is difficult for children to do.
Avoid using how/why questions. In relation to ‘why’, this is seen by a child as requiring them to defend themselves to justify why something happened. ‘Why’ also requires a child to be able to look at motivations, reasoning from effect back to cause, which children cannot do until about ages 7 to 10. ‘How’ may require memory of concepts; “How many times did that happen?” may require the ability to recognize intention and flow of events. Instead of asking, “How did he do that?”, ask “What did he do?” or “Show me what he did?”
Leading questions are confusing for children and result in them giving incorrect responses.
Pronouns (‘he’, ‘she’, ‘they’) confuse children. It is better to name the person being talked about or to ask the child to do so.
For a young child, questions about family, school, counting, and knowledge of the alphabet and colours can provide a sense of the child’s intelligence and memory.
Examples of recent experiences that can be used as questions could include what the child ate or who the child saw that day. An example of past events could include what happened on the child’s birthday or holiday. These questions should be put keeping in view the socio-economic background and literacy of the child.
In the judgment of Ankush Kumar v. State decided on 30th September 2015 the Delhi High Court has reiterated the need for protection of testimony of child witnesses. The Court said that, “All the Criminal Courts are directed to adopt all the reasonable precautions to ensure the true testimony of the child witnesses and to provide atmosphere and the circumstances to the effect that the child witnesses shall not be compelled by the circumstances, by the accused including the parents, from bringing truth before the Court. It shall further be ensured that the child witnesses be examined in special court room meant for it and provide all the precautions available to the child victims under the Prevention of Children from Sexual Offences Act, 2012.”
Click here to Download the Guidelines
(Note by iProbono:- In October 2014, a division bench of the Delhi High Court reversed the decision of the trial court in State v. Sujeet Kumar convicting the defendant of the offence of sexually assaulting a two-and-a-half-year old child in October 2012. The High Court based its decision primarily on the testimony of the child, and criticized the trial court for not attaching due importance and credibility to her testimony.
The evidence of a child witness must be regarded, but the Court is required to closely scrutinize such evidence. If it is convinced about the quality of the evidence and the reliability of the child witness, then there is no reason as to why the Court should not accept the evidence.
The significance of the judgment is the reiteration of guidelines for questioning children in order to assess their competence as witnesses. Organisations representing the interests of the child can use these guidelines to ensure that the child receives a fair hearing. In its judgment, the Court relied heavily on the comprehensive judgment in State v. Rahul, the United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, the American Bar Association’s ‘Handbook on Questioning Children’ and on an article by child psychologist Sherrie Bourg Carter titled ‘Child Witness Competency: When Should the Issue be Raised?’)
