The route for the reformation of the law concerning vulnerable witnesses is neither simple nor unequivocal. It was necessary to make the evidence of children more accessible to the courts; at the same time protecting children from their harmful participation to a system of justice. Video pre-recording of cross-examination of child witnesses was one of the innovations which even statutory introduced has never been implemented (AL- Rawashdeh, Tarawneh, Hayajneh, 2012; Keane, 2012). The objections for its implementation are diachronically the same from Pigot-era to date. They deal with the fundamental rights of the defendant as they are safeguarded through the procedural tool of cross-examination. There were also some objections which could be characterised not principled (Cooper, 2005, cited by Cooper, 2010).
Arguments led to the introduction of this special measure
(a) The psychological research
The psychological research suggests that additionally to the inherent vulnerabilities of children there are stressors that children face when being involved to the legal system and giving evidence in courts (Spencer & Flin, 1993; Zajac, O’Neill, & Hayne, 2012). The direct view of the accused offender could lead to an extreme point of physical and psychological exposition of the child witnesses, particularly when these witnesses have to give testimony about serious crimes (i.e. sexual abuse) committed against them and about their own victimisation (Westcott & Page, 2002) and when the offender is a loved person (Henry, 1997). The procedural delay from the time of sentencing to the time of the trial, and the immediate pre-trial waiting time in the courthouse maximize the stressors that negatively affect the performance of child witnesses (Plotnikoff & Woolfson, 2004). The unfamiliar, ritual and formal environment of the courtroom and the procedures increase that negative effect. In addition to the physical and procedural setting of the courtroom, the operational nature and goals of cross-examination in the adversarial system permit inappropriate (i.e. suggestive, leading, rush, accusatory, confusing, irrelevant etc) questioning; in that instance, the possibility of over-impositions from the defence is a usual phenomenon (Crawford & Bull, 2006; Zajac, 2009; Keane, 2012; Caruso & Cross, 2012). The cross-examination has negative effects on the quality and reliability of children’s testimonies even when children testify about neutral or transgressive events (Zajac & Hayne, 2003, 2006; Fogliati & Bussey, 2013). Potentially, the cross-examination about frightening, painful or embarrassing events is highly distressing even for adults (Goodman, Taub, Jones, England, Port, Rudy, Prado, Myers, & Melton, 1992). Child witnesses without conversational skills who are called to disclose their horrible experiences in front of an audience of austere observing adults might feel shame, loneliness and culpability (Goodman et al, 1992; Henry, 1997; Feiring, Tasca, & Chen, 2002). All these stressors do not affect only the testimonial competency of children, but they could also produce symptoms to the physical condition of the children like anxiety, sleeplessness, depression or even self-harm (Spencer & Flin, 1993). They could also cause longer-term effects to the wellbeing of child witnesses (Nathanson & Saywitz, 2003; Quas, Goodman, Ghetti, Alexander, Edelstein, Redlich, Cordon, Jones, & Haugaard, 2005).
(b) The legal extension to the psychological research
The legal extension of this psychological research is that the most of the times there is not sufficient evidence for convictions (Cross, Walsh, Simone, & Jones, 2003) since evidences of the child witnesses which often are the only available evidences for some crimes are easily discredited during cross-examination. Therefore, the involvement of children to the criminal justice does not affect only the wellbeing of children who have experienced or witnessed crimes but also the cases themselves and the proper administration of justice to these crimes.
Based on the recognition that the participation of children in the adversarial system of criminal trials is harmful and traumatic for them, the Pigot Report was a catalyst for the first legislation movement for the introduction of pre-recorded cross-examination (Pigot, 1989; Westcott & Page, 2002). The full Pigot Report (Cooper, 2005, cited by Cooper, 2010) recommended the entire evidence, including cross-examination, to be given in pre-trial procedures and pre-recorded being admissible to a court of justice later. The intended benefits were mainly the relaxation from the known stressors and the minimization of trauma. In addition, the amelioration of the way in which children could recall the events when they are still fresh in mind (Burton, Evans, & Sanders, 2007). Thus, adapting the procedure to the needs of children would create all the necessary circumstances to obtain their “best evidence” serving the goal of truth seeking.
The necessity for greater protection of vulnerable witnesses and victims in criminal trials led to the issuance of the Youth Justice and Criminal Evidence Act 1999 (hereinafter YJCEA 1999) (Maynard, 1994; Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System, 1998). Section 28 of the YJCEA 1999 formally introduced the pre-trial recording of cross-examination and set the requirements of admissibility of such evidence in court. The recording of cross-examination takes place when the evidence-in-chief is pre-recorded too and in the absence of the defendant. The judge and legal representative of the defendant are all able to see and hear the procedure of cross-examination. They can also communicate with persons in whose presence the recording is being made. The defendant does not have the right to cross-examine the child in person. The defendant has the right to communicate with the legal representative acting for him/her during the whole recording procedure. The admissibility of this evidence is strictly depended on these circumstantial requirements (YJCEA, 1999).
The objections and their critical approach
(a) Defendant’s rights
Pre-recording of cross-examination even though is statutory introduced remains practically unavailable. It’s statutory introduction took place under pressure and before overcoming the procedural and fundamental objections that had led to the failure of Pigot’s Report (Bates, 1999). Home Office and House of Lords were reluctant to accept this challenge and its ability to guarantee the fair trial rights of the defendants.
The objections concerning the way in which the rights of the defendants would be protected even when the incriminating evidence comes from vulnerable children are challengingly interesting. The liberty of the accused offender is at stake. For this reason the accused offender historically has the rights to be physically present during the whole procedure including cross-examination, to cross-examine the prosecuting witnesses in person, to scrutinize the incriminating evidence, to do so under the protection of publicity in an open court (Yates, 1989) and use the possibilities of judging the demeanour of the cross-examined witness (Mulcahy, 2008). Each of these rights carries a legal history (Radin, 1931), which reasonably makes them protected as serious human rights (Council of Europe, 1950; Human Rights Act, 1998). The rules and procedures are rigid in order to safeguard these rights.
The cross-examination constitutes the heart of the “fair trial” and the most powerful tool of the defence to confront and test the truthfulness of the incriminating evidence (Wigmore, 1974, p. 32). Therefore, the questions are whether these defendants’ rights should yield to the necessity of protecting child witnesses by modifying the procedure of cross-examination, and to what extent in order to keep the constraints and the balance.
The nature and the purpose of cross-examination are indeed adult-focused. Namely, cross-examination presumes that all the witnesses are cognitively and emotionally capable to take the witness stand, anticipate their physical confrontation, control their performance, and support their credibility or morality to the thirds. However, cross-examination could not operate in the same way in cases of vulnerable and not-vulnerable witnesses. Beyond any legal definition, there is not a complete definition for “vulnerable” witnesses. As an experienced British criminal lawyer said trying to explain about vulnerable suspect “In my view, the definition of ‘Vulnerable’ is ‘a person who is vulnerable’” (Grey, 2013). All the people before the court are in a sense “vulnerable”; the measurement of vulnerability as such depends on the facts of each specific case. The presumption of vulnerability in children may be not convincing when treating the presumptive vulnerability of the accused offenders.
Apart from the difficultness in balancing the vulnerabilities of people involved in the criminal procedure there is a truth never confessed by the defence lawyers. The external dynamics of questioning through cross-examination are these which usually produce scenes of a soap-opera (i.e. the manipulations of language timing, intonation, speed etc also using the characteristics of the physical setting of the courtroom). These dynamics tangibly challenge the live performance of the witnesses in terms of being expressed in an accurate way rather than the internal strength of the incriminating evidence in its reasoning level per se. The relation of child witnesses’ accounts to the truth seems to be deeper and irrelevant to the outlay of the evidence (Brennan, 1995). The application of these dynamics in the questioning of vulnerable witnesses may lead to an abusive cross-examination, which could destroy an account, possibly important for the case (Zajac, Gross & Hayne, 2003; Zajac, O’Neill & Hayne, 2012). The abusive cross-examination is not among the rights of the defendant.
The maximization of the protection of certainly vulnerable child witnesses from the possibility of abusive cross-examination does not constitute a preferential strengthening or perfecting of prosecution’s case, but an attempt to equalize the weapons (Evans, Lee & Lyon, 2009). Namely, it is not a right of the defendant to gain advantages by using or increasing the vulnerabilities of child witnesses; “fairness” or “truthfulness” does not encourage such procedural methods. The presumption that Wigmore had set (Wigmore, 1974) that the cross-examination is the means of uncovering the truth is not abused if these external dynamics of cross-examination are removed and if the cross-examination takes place out of the court and away from the juries. Oppositely, it could be said that the continuance of permitting the use of cross-examining methods in cases that these methods were proved to lead to untruthfulness in the name of a “presumption of truthfulness” creates at least a great paradox.
Furthermore, emphasis is needed to be put to the view that the cross-examination should not be understood as the operational ban or extinguishment of the presentation of any opposite evidence or a procedural game with the psychology of the witnesses; this understanding is out the necessities of any protecting law. The role of cross-examination does not actually entail the necessity of physical proximity and contact between the accused offender and the witness. The right of the defendant to be present at his trial does not create any obligation of the witness to watch the defendant and suffer the gaze and the demeanor of the defendant while he is standing on the dock (Doak, 2000). The necessity of attendance of the defendant is satisfied while he can watch and hear his trial and participate to his trial even through his representative (Doak, 2000; Course material: Achieving Best Evidence: A critical review, in Law and Procedures related to children, Department of Psychology, University of Portsmouth). Further, right of the defendant to cross-examine the witness is satisfied when the defendant is given the opportunity to confront all aspects of the account of the child witness; even through the use intermediaries. Supposedly, he would do the same if the witness had another kind of vulnerability; namely if the witness was deaf or speaker of a different language etc. The confrontation of the child witnesses in the reasoning level of their accounts and their relation to the truth unquestionably satisfies the subjective goals of the cross-examination and those of the whole criminal procedure. Finally, if the videotaped cross-examination is played in an open court the requirement of publicity is not seriously affected (Skulkin, 1972).
The statements that the cross-examination of child witnesses in live court trials creates traumas to children, affects the quality and reliability of their given testimonies, and by extension the proper administration of justice even though they are scientifically and empirically based (Zajac, O’Neill & Hayne, 2012), should not generate the issue. All the objections that have been raised about the implementation of videotaped cross-examination and the rights of the defendants can be answered in a way, but the debate is still maintained in a theoretical level. When a specific case is before a judge who examines the necessity of restricting certain rights of the specific defendant, the situation is different from that in the perfect theory. In practice, there is the need for presenting evidence to prove the individualized vulnerabilities of the specific child witness and the risks of suffering trauma by being present and confronted in the live trial. It is a thought that the prosecutors may prefer to employ other shielding methods in order to control and reduce the distress of child witnesses during the procedure of a live cross-examination; without taking the risk to prove the reasons of the necessity to restrict some of the fundamental rights of the defendant.
Moreover, approaching these objections with a stricter critical view one could stress that eventually the politico-legal orientation and context of the discussion easily triumphed over the psychological research which did not persuade for the invalidity of the cross-examination legal assumptions to the cases of children witnesses. The research indicates that the use of pre-recorded cross-examination reduces the distress of child witnesses and does so more effectively than other methods (e.g. live video link), (Wilson & Davies, 1999). The usual methodology is the quasi experimental method of mock trials with comparisons between testifiers and not testifiers (Goodman et al, 1992). However, evaluating this research there is not methodological safety as to the factors that genuinely contribute to the reduction of distress. It is unknown whether the reduction of distress is due to the procedure of video-recording the procedure of cross-examination (or not testifying at all) or to other confounding factors.
(b) The not principled objections
The vividness effect
Another concern related to the right of the defendant to have a full trial before the juries refers to the way in which the juries would approach the credibility of the child witnesses and the defendant having different kinds of testimonies before them to compare. It was believed that the juries would not receive the “vividness effect” of the child witnesses in the courtroom which would also permit them detect deception, they could not be given any clarifications, and they would not be so positive to the videotaped testimony (Shulkin, 1972). On the contrast, they would receive the “vividness effect” of the defendant which could overshadow their perceptions.
Although it was known that the type of testimony presentation affects the perceptions and memory of the observers (Landström, Granhag & Hartwig, 2007), the meaning of “vividness effect” remains subjective. A videotaped testimony could also be “vivid” enough while a live trial testimony could be tiresome and indifferent. The anticipation of the videotaped testimony by the juries may do not have to do with the context of the testimony itself (Landström & Granhag, 2010), rather than with their own emotional synchronisation with the “event” of testimony. If the juries view the testimony of a child witness as a significant event where they are present, and they are experiencing it, they might have emotions created by such experience instead of the context of the testimony itself. The emotional synchronisation of the juries with the event of testimony could be manipulated; the videotaped testimony can be introduced to the procedure as such an important event rather than was watching an irrelevant cinema movie. As concerns, the possibility of the ability of the juries to detect deception to be affected, it is not supported by the research that such ability is existent in juries (Vrij, Akehurst, Brown, & Mann, 2006; Aamodt & Custer, 2006). Other objections also related to the juries and the vividness effect, are that the juries either would show over-reliance to the detailed content of a video, or they would not remember a much detailed content. It seems that this issue is manipulatable by regulating the playing times of the video.
Unnecessary spending of time and money
It was further said that a large amount of recordings would not be finally used in the courts either because of the defendant will finally plead guilty or for other reasons (Bates, 1999). In these cases, the child would already be cross-examined out-of-court and the testimony would be recorded; people would work and time and money would be spent for this procedure. This objection is clearly political, since having to select between reducing the trauma of children and spending time and money, the practical difficulties could be overcome or just forgotten. In addition, the defendant has the right to change of his plea to guilty later and even after the completion of the cross-examination of the child witness in a live trial.
Finally, it was a pointed observation that the application of the measure is not obligatory, but the child could opt out of it, even though it is presumed vulnerable and protected (Cooper, 2010; Ministry of Justice, 2011; AL- Rawashdeh, Tarawneh & Hayajneh, 2012). The measure could not be obligatory for all the children of all the ages independently of their individual characteristics. However, the freedom of the child to reject the offered protection is not a reason for this protection not to be offered.
Even though, it is well-researched that the cross-examination affects negatively the child witnesses’ testimonies and that the video pre-recording of cross-examination could reduce this negative outcome, this special measure has never been implemented. The objections to its implementation are rather political-legal rather than scientific and leave the theoretical level of issue going around the same old reasoning. There is a need to count and compare the vulnerabilities of both the defendant and child witnesses. Accordingly, the balance of their rights, in each situation, is that will serve the ends of justice; the meaning of justice is not abstract or generalised.
Aamodt, M. G., & Custer, H. (2006). Who can best catch a liar?: A meta-analysis of individual differences in detecting deception. Forensic Examiner, 15 (1), 6 – 11.
AL- Rawashdeh, S. H., Tarawneh, H. A. & Hayajneh, A. M. (2012). The treatment of vulnerable and intimidated witnesses in the English Criminal Justice System. European Journal of Social Sciences, 33, 52-88.
Bates, P. (1999). The Youth Justice and Criminal Evidence Act – the evidence of children and vulnerable adults. Child and Family Law Quarterly, 11, 289-304.
Brennan, M. (1995) The discourse of denial: Cross-examining child victim witnesses. Journal of Pragmatics, 23, 71-91.
Burton, M., Evans, R. & Sanders, A. (2007). Vulnerable and intimidated witnesses and the adversarial process in England and Wales. The International Journal of Evidence & Proof, 11, 1-23.
Caruso, D. & Cross, T. (2012). The case in Australia for further reform to the cross-examination and court management of child witnesses. The International Journal of Evidence & Proof, 16, 364-397.
Cooper, D. (2010). Special measures for child witnesses: A socio-legal study of criminal procedure reform. Thesis submitted to the University of Nottingham for the degree of Doctor of Philosophy. Retrieved from: http://etheses.nottingham.ac.uk/1319/1/DC_Complete_Thesis.pdf
Council of Europe (1950). European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14. Strasbourg: European Court of Human Rights, Council of Europe.
Course material: Achieving Best Evidence: A critical review, in Law and Procedures related to children, Department of Psychology, University of Portsmouth.
Crawford, E. & Bull, R. (2006). Teenagers’ difficulties with key words regarding the criminal court process. Psychology, Crime & Law, 12, 653-667.
Cross, T. P., Walsh, W. A., Simone, M., & Jones, L. M. (2003). Prosecution of child abuse: A meta-analysis of rates of criminal justice decisions. Trauma, Violence, & Abuse, 4, 323 – 340.
Doak, J. (2000). Confrontation in the courtroom: Shielding vulnerable witnesses from the adversarial showdown. Law of Civil Liberties, 5, 296-319.
Evans, A. D., Lee, K. & Lyon, T. D. (2009). Complex questions asked by defense lawyers but not prosecutors predicts convictions in child abuse trials. Law and Human Behavior, 33, 258–264.
Feiring,C., Tasca, L., & Chen, K. (2002). Trying to understand why horrible things happen: Attribution, shame, and symptom development following sexual abuse. Child Maltreatment, 7, 25 – 39.
Fogliati, R., & Bussey, K. (2013). The effects of cross-examination on children’s reports of neutral and transgressive events. Legal and Criminological Psychology (in press). Retrieved from: http://onlinelibrary.wiley.com/doi/10.1111/lcrp.12010/pdf
Goodman, G. S., Taub, E. P., Jones, D. P. H., England, P., Port, L. K., Rudy, L., Prado, L., Myers, J. E. B., & Melton, G. B. (1992). Testifying in criminal court: Emotional effects on child sexual assault victims. Monographs of the Society for Research in Child Development, 57 (5), 1-159.
Grey, R. (2013) “Measure E- Special Safeguards for Suspected or Accused Persons who are vulnerable”. Internal proceedings of ECBA, London, 16th March 2013 (Minutes available).
Great Britain. Human Rights Act 1998, Elizabeth ll, Chapter 42. (1998). London: The Stationery Office.
Great Britain. Youth Justice and Criminal Evidence Act 1999, 1999 c. 23, Part II, Chapter I, Special measures, Section 28.
Henry, J. (1997). System intervention trauma to child sexual abuse victims following disclosure. Journal of interpersonal violence, 12, 499 – 512.
Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System. (1998). Speaking Up for Justice. London: Home Office.
Landström, S., Granhag, P. A. & Hartwig, M. (2007). Children’s live and videotaped testimonies: How presentation mode affects observers’ perception, assessment and memory. Legal and Criminological Psychology, 12, 333–347.
Landström, S., & Granhag, P. A. (2010). In-court versus out-of-court testimonies: Children’s experiences and adults’ assessments. Applied Cognitive Psychology, 24, 941 – 955.
Keane, A. (2012). Cross-examination of vulnerable witnesses – towards a blueprint for re-professionalisation. The International Journal of Evidence & Proof, 16, 175-198.
Maynard, W. (1994). Witness intimidation – Strategies for prevention. Police Research Group, Crime Detection and Prevention Series, Paper No 55. London: Home Office Police Department.
Ministry of Justice (2011). Vulnerable and intimidated witnesses. A Police Service Guide.
Mulcahy, L. (2008). The unbearable lightness of being? Shifts towards the virtual trial. Journal of Law and Society, 35, 464 – 489.
Nathanson, R., & Saywitz, K.J. (2003). The effects of the courtroom context on children’s memory and anxiety. The Journal of Psychiatry and Law, 31, 67-98.
Pigot, T. (1989). The Report of the advisory group on video evidence. London: Home Office.
Plotnikoff, J. & Woolfson, R. (2004). In their own words: The experiences of 50 young witnesses in criminal proceedings. London: NCPSS Publications.
Quas, J. A., Goodman, G. S., Ghetti, S., Alexander, K. W., Edelstein, R., Redlich, A. D., Cordon, I. M., Jones, D. P. H., & Haugaard, J. J. (2005). Childhood sexual assault victims: Long-term outcomes after testifying in criminal court. Monographs of the Society for Research in Child Development, 70 (2), 1-139.
Radin, M. (1931). The right to a public trial. Temple Law Quarterly, 6, 381 – 399.
Shulkin, J. A. (1972). Videotape Trials: Legal and Practical Implications. Columbia Journal of Law and Social Problems, 9, 363 – 393.
Spencer, J. R. (1992). Reforming the Law on children’s evidence in England: The Pigot Committee and after. In H. Dent & R. Flin (Eds.), Children as Witnesses (pp.113-129). Chichester: J. Wiley & Sons. 126.
Spencer, J. R. & Flin, R. (1993). The Evidence of Children: The Law and the Psychology. London: Blackstone Press Ltd.
Vrij, A., Akehurst, L., Brown, L., & Mann, S. (2006). Detecting lies in young children, adolescents and adults. Applied Cognitive Psychology, 9, 1225 – 1237.
Westcott, H. L. & Page, M. (2002). Cross-examination, sexual abuse and child witness identity. Child Abuse Review, 11, 137-152.
Wigmore, J. H. (1974). Evidence in trials at common law. Boston: Little, Brown, and Co.
Yates, C. (1989). The Pigot Committee report: Children, evidence and videotape. Journal of Child Law, 2, 96-101.
Zajac, R. (2009). Investigative interviewing in the courtroom: Child witnesses and cross-examination. In R. Bull, T. Valentine, & T. Williamson (Eds.), Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions (pp.161-180). Chichester, UK: John Wiley & Sons Ltd.
Zajac, R., Gross, J. & Hayne, H. (2003). Asked and answered: Questioning children in the courtroom. Psychiatry, Psychology & Law, 10, 199-209.
Zajac, R., & Hayne, H. (2003). I don’t think that’s what really happened: The effect of cross-examination on the accuracy of children’s reports. Journal of Experimental Psychology: Applied, 9, 187 – 195.
Zajac, R., & Hayne, H. (2006). The negative effect of cross-examination style questioning on children’s accuracy: Older children are not immune. Applied Cognitive Psychology, 20, 3 – 16.
Zajac, R., O’Neill, S. & Hayne, H. (2012). Disorder in the courtroom? Child witnesses under cross-examination. Developmental Review, 32, 181-204.