Author: Michael Macrae, University of Toronto Faculty of Law & AIDWYC 2015 Summer Fellow

Trigger Warning: The following blog post discusses – but does not describe in detail – various forms of child abuse.

The case of Miazga v Kvello Estate[1] is a good illustration of the danger of courts giving too much weight to the testimony of child witnesses. In Miazga, three children alleged that Kvello was involved in a satanic cult that exposed them and other children to abuse.[2]  The facts of Kvello reflected an international fear at the time about satanic cults;[3] this fear attracted a considerable body of scholarly literature, some of which was useful for this blog-post.  That the charges against Kvello were mired in controversy and eventually overturned[4] may lead people to think that child witnesses are not credible. However, the reality is more complex.

The history of child witness testimony leading to miscarriages of justice goes back centuries.  The notorious Salem witch trials of 1692 etched this problem into our collective consciousness.  Several girls alleged that they were the victims of witchcraft. The Court ordered 19 suspected witches be hanged; two others died in custody.[5] These cases are a clear warning against placing too much trust in children’s testimonies.[6]

However, during the 19th century, the opposite problem arose in the legal system. It became a commonly accepted truth that children were inherently unreliable, especially when narrating incidents of abuse. In 1893, the Parliament of Canada provided a statutory framework for the testimony of children whom courts deemed too young to understand the nature of an oath or the importance of telling the truth. The statute required that additional evidence support the child’s testimony.[7] It also required that judges alert jurors that children’s testimonies are unreliable.[8]

The judicial disregard of children’s testimonies in the 19th century was paralleled in the mental health profession and in society. Faced with a society that refused to believe his case-studies of sexually abused children, Sigmund Freud concluded that the children had created these narratives as expressions of their erotic attraction towards adults in their lives, a view that prevailed until the 1950s.[9]

It was not until 1988, under pressure from feminists and victims of sexual abuse who were coming forward,[10] that the Canadian government modified the laws related to child witnesses to eliminate the requirement for corroboration.[11]

However, the basic problem with child witnesses remains. Too much trust can lead to wrongful convictions. Too little trust of children’s claims allows the guilty to escape punishment, and defence lawyers should not sacrifice all legal and ethical standard in pursuit of their clients’ acquittal.[12]

Techniques Defence Lawyers Should Avoid

The following is a list of techniques that should be avoided when interacting with child witnesses:

1. Do not assume that children are incapable of recollecting criminal events accurately or narrating them understandably. Sven A Christianson et al. argue that even extremely young children are capable of recounting the physical aspects of criminal deeds that they witness with great accuracy. Their study involved children who witnessed murders and attempted murders of family members. As such, it would be unwise to argue that trauma causes all children to misremember or suppress horrific events.[13]

2. Do not inquire too much into a child’s understanding of divine punishment or defining truth. Children may be called as witnesses even if they are too young to swear an oath to tell the truth so long as they show the court that they understand the significance of telling the truth.[14] There is a long-standing trend in Canada of judges and defence lawyers assuming that this requires children to state that they understand the consequences of lying to a deep and religiously-specific degree. Court officials continue to occasionally ask the children to define truth[15] and indicate adhesion to a Christian code of morality in which liars are punished in a Hell-realm.[16] Yet the ethical defence lawyer should neither participate in nor encourage such questioning for two reasons:

A) It is a biased and needlessly onerous standard which is especially unfair to non-Christian children. Many learned philosophers from diverse traditions have sought understanding of ultimate truth and speculated about a Supreme Creator and what happens to the dead. Expecting children to believe one version of these theories ignores the tolerant multi-faith reality that Canada has become, in which 33.7% of people are not Christian and 43.1% of all Canadians never attend religious services.[17] Furthermore, expecting children to answer questions that have occupied philosophers for centuries is an overly-stringent test of their credibility.

B) Such tactics could undermine the defence strategy. The Supreme Court of Canada has held that requiring children to admit understanding of given religious doctrines before they can testify is wrong, largely for the reasons discussed above.[18] Excessive insistence upon such an understanding could lead to a successful appeal for suppressing prosecutors’ evidence.

3. Do not assume that fantastic elements of children’s testimonies are so implausible that juries will acquit the accused. Children claiming to be victims of satanic ritual abuse may make bizarre or implausible claims. For example, the children in Kvello claimed that they had not only been abused, but also saw their abusers killing babies and engaging in vampirism.[19] The skeptical defence lawyer should not assume that juries will extend their incredulity to the children’s entire stories. Bottoms, Diviak, and Davis suggest that the majority of juries, even when regarding fantastical elements of child abuse claims with disbelief, assume that there is at least a core abuse narrative that is credible enough to convict the accused.[20]

Techniques Defence Lawyers Should Employ

Nonetheless, a child’s testimony is vulnerable to his or her frailties.  As for all witnesses, lawyers should critically evaluate a child’s credibility and account of events. The following advice may be useful for a defence lawyer when probing a child’s testimony. They would be of best use if transcripts or recordings of children’s interviews could be accessed; legally speaking, this should be easy since the Supreme Court of Canada has held in R v Stinchcombe that prosecutors must disclose all evidence relevant to defence.[21]

  1. Understand that children can and will lie. Despite the stereotypes about childhood, virtue, and innocence, a controlled experiment reveals that children can lie from the age of three. Moral instruction or lack thereof has little bearing upon honesty: although 87% of the children in that experiment could identify a lie and 73% said that lying was wrong, 74% of the children still lied during the experiment to gain a reward.[22] Recognizing that children lie for many of the same reasons as adults allows us to better understand their testimony.
  2. Be vigilant for evidence that the child has been coached into giving a certain narrative. In their study of the transcripts of testimonies offered by child witnesses in three debunked cases involving alleged satanic cults, Nadja Schreiber et al. argued that there was a strong correlation between the interviewer’s guidance of a child and the child’s purported recollections of abuse.[23] This guidance can take many forms, including the following.
    • Doubting denials. This can take many forms, from explicit statements (e.g., “I don’t think you’re telling the full truth”) to implications (e.g., “If you had been abused, would you tell me?”).[24]
    • Use of leading questions. Typically, this will involve detailed, even bizarre scenarios that can best be answered by yes or no (e.g., “Did the scary person abduct you with a helicopter?”).[25]
    • Inviting speculation. This involves the interviewer actively encouraging the child to imagine what could have happened in a given situation (e.g., “Can you tell me what kind of bad things the scary person could have done to your friends?”).[26]
    • Offering rewards for confessions. These rewards can be explicit (e.g., “The sooner we can uncover your abuse, the sooner you can go home.”) or implicit yet excessive (e.g., “Thank you very much for telling me about that incident of abuse. You are so brave and smart! What other abuse can you remember?”).[27] Praising children at the beginning and ends of interviews is apparently standard.[28]
  3. Be mindful that children’s stress may arise from sources other than the criminal acts that they are describing. One argument used to defend the veracity of at least the core of children’s implausible allegations is that the children seemed genuinely traumatized.[29] Yet skeptical psychologists have offered an alternative explanation in which the children are traumatized by the stress of interviews, the unfamiliarity of the ideas that they are expressing (which even shock adults), and the pressure to accuse people whom they hold no hostility towards and may even like.[30]
  4. Recognize that children’s minds are less strong in some areas of testimony than others. Children’s minds differ from those of adults. As people get older, their ability to recall and accurately report abstractions increases; the younger a child is, the less able that child’s mind is to recall information contextualizing the physical actions, such as speech, emotions of victims and perpetrators, and victims’ reactions.[31] Furthermore, younger children have difficulty answering questions beginning with the phrase “Do you know…?”; they are biased towards answering “Yes” regardless of their beliefs.[32] The prudent defence lawyer will present this information to the court using credible expert witnesses and plan a strategy accordingly.
  5. Be very thorough in examining the child’s understanding of legal procedures. Child witnesses may understand the legal procedure in ways quite different from adult understanding. In one case, a child answered all questions put to him by a lawyer with the phrase “Yes, Sir” because he had been taught never to contradict his elders;[33] another child refused to swear because she associated oaths with obscenities that she had been raised to avoid saying.[34] These examples serve as warnings that defence lawyers should never assume that child witnesses know how they are supposed to behave in legal situations; careful explanations and counselling with legally qualified child care experts is useful.

By keeping all of these instructions in mind, the prudent defence lawyer may be better able to separate truth from falsehood and, in turn, prevent wrongful convictions while dealing with child witnesses.


 

[1] Miazga v Kvello Estate, 2009 SCC 51 at paras 14-15, [2009] 3 SCR 339 [Kvello].

[2] Ibid.

[3] Bette L Bottoms, Kathleen R Diviak, & Suzanne L Davis, “Jurors’ Reactions to Satanic Ritual Abuse Allegations” (1997) 21:9 Child Abuse & Neglect 845 at 845-846 [Bottoms, Diviak, & Davis, “Jurors’ Reactions.”].

[4] Kvello, supra note 1 at paras 25-26.

[5] Marc Callis, “The Aftermath of the Salem Witch Trials in Colonial America” (2005) 33:2 Historical J of Mass 187 at 187.

[6] Ibid at 188, 192.

[7] Nicholas Bala, Janet Lee, & Erin McNamara, “Children as Witnesses: Understanding Their Capacities, Needs, and Experiences,” (2001) 10:1 J of Social Distress & the Homeless 41 at 43 [Bala, Lee, & McNamara, “Children as Witnesses.”].

[8] Ibid.

[9] Ibid at 43-44.

[10] Ibid at 44.

[11] Kvello, supra note 1 at para 17.

[12] R v Murray, [2000] 48 OR (3d) 544 at paras 106-111, 186 DLR (4th) 124 (Ont SC).

[13] Sven A Christianson et al, “Children as Witnesses to Homicidal Violence: What They Remember and Report” (2013) 20:3 Psychiatry, Psychology & L 366 at 369, 373 [Christianson et al, “Children as Witnesses to Homicidal Violence”].

[14] Bala, Lee, & McNamara, “Children as Witnesses,” supra note 8 at 47.

[15] Ibid at 50.

[16] Ibid at 48-49.

[17] Sarah Wilkins-Laflamme, Report: Religion in Canada (Montreal: Centre d’études ethniques des universités montréalaises, 2014) at 1, 3.

[18] R v Bannerman, [1966] 48 CR 110 [SCC] at paras 83-84, 55 WWR 257; R v DAI, 2012 SCC 5 at para 30, [2012] 1 SCR 149.

[19] Kvello, supra note 1 at para 15.

[20] Bottoms, Diviak, & Davis, “Jurors’ Reactions,” supra note 3 at 852.

[21] [1991] 3 SCR 326 at para 22, 68 CCC (3d) 1.

[22] Bala, Lee, & McNamara, “Children as Witnesses,” supra note 8 at 51.

[23] Nadja Schreiber et al, “Suggestive Interviewing in the McMartin Preschool and Kelly Michaels Daycare Abuse Cases: A Case Study,” (2006) 1:1 Social Influence 16 at 38-39 [Schreiber et al, “Suggestive Interviewing.”].

[24] Ibid at 28-29.

[25] Ibid at 21.

[26] Ibid at 29.

[27] Ibid at 38.

[28] Ibid at 39.

[29] Ibid at 37.

[30] Ibid at 38.

[31] Christianson et al, “Children as Witnesses to Homicidal Violence,” supra note 18 at 373.

[32] Angela D Evans et al, “Young Children’s Difficulty with Indirect Speech Acts: Implications for Questioning Child Witnesses,” (2014) 32 Behavioral Science & the L 775 at 776.

[33] Bala, Lee, & McNamara, “Children as Witnesses,” supra note 8 at 58.

[34] Ibid.