VII Children’s in-court evidence

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7.1 Children’s experiences prior to and during court

As we discussed in Section I, there is clear evidence that the courtroom context is unique and often stressful for children. Children who appear in court have already experienced sometimes traumatic events that brought them to court. The majority of child witnesses experience anxiety and show evidence of stress symptoms, including sleeping and eating problems, depression, bed-wetting, and self-harming while waiting to go to court (Plotnikoff & Woolfson, 2009). But the courtroom experience itself has also been shown to be a substantial stressor for children, with sometimes long-term consequences (Goodman et al., 1992; Quas et al., 2005).

One way in which children’s anxiety can be reduced is through knowledge and preparation about the upcoming event. Court preparation programs have been available for children in Canada for more than 30 years (Sas, Wolfe, & Gowdey, 1996) and they focus on providing children with knowledge and experience about the upcoming proceedings. Such programs may include court visitations, practice responding to questions, meeting people who will be present during the court experience, and learning strategies for coping with challenges that arise. Evidence shows that such programs can have beneficial effects on children’s well-being, including the reduction of anticipatory anxiety (e.g., Gadoua, Daignault, Cyr, Lachambre, & Dufour, 2023; Nathanson & Saywitz, 2015).

Despite the promising findings related to court preparation programs, many children’s court experiences are difficult. Given the often extremely negative impact that appearing in court can have on children, we now review some key aspects of the in-court experience that must be considered by professionals who work with children in the justice system.

7.2 Cross-examination: “how not to” question children

A key component of a criminal trial is the presentation of evidence and the testing of that evidence through cross-examination. Cross-examination is designed with the ultimate aim of casting doubt on the prosecution’s evidence. The ability to cross-examine a witness is viewed as critical to defence because defendants have the right to challenge the evidence presented against them. A primary aim during cross-examination is to control the witness’ responses (Henderson, 2002). Legal training on how to conduct a successful cross-examination typically focuses on how to get a witness to agree to a statement posed by defence counsel, or to pose questions in such a way that a witness will contradict themselves. Eliciting inconsistencies is considered a successful outcome of a cross-examination. Naturally, the questioning style of cross-examination, then, is largely comprised of closed, leading, and yes/no questions. As we have already established, this style of questioning is highly problematic for eliciting accurate statements from children (e.g., Snow & Powell, 2007; see Section 6.1).

More than a decade ago, legal scholar John Spencer summed up the state of child witness cross-examination eloquently:

As Spencer notes, the typical style of questioning not only fails to promote access to the truth, it is also emotionally challenging for children. Experiencing cross-examination has been described as one of the worst parts of court for children (Randell, Seymour, McCann, & Blackwell, 2021). In one study, Hanna and colleagues (Hanna, Davies, Henderson, Crothers, & Rotherham, 2010) found that 40% of their sample of 68 child witnesses cried during cross-examination and 25% of children experienced the defence attorney raising their voice at them. In another study, most child witnesses reported comprehension, complexity, and pace problems, as well as being interrupted (Plotnikoff & Woolfson, 2009). Indeed, cross-examination has been described as a “how not to” guide to questioning children (Henderson, 2002, p. 279).

Effects of cross-examination on accuracy. There are volumes of evidence that the questions posed in the courtroom are developmentally inappropriate for children and do not serve a truth-seeking function. Cross-examination questions are linguistically complex and difficult for children to comprehend (Andrews, Lamb, & Lyon, 2015; Bettenay et al., 2014; Hanna et al., 2010; Perry et al., 1995; Plotnikoff & Woolfson, 2009, 2012; Zajac, Gross, & Hayne, 2003; Zajac, O’Neill, & Hayne, 2012). In response, children rarely request clarification and often answer nonsensical or ambiguous questions (Zajac et al., 2003). Not surprisingly, children are much less accurate in cross-examination compared to direct examination, and these effects are particularly problematic for younger witnesses, especially those under 10 years of age (Jack & Zajac, 2014; O’Neill & Zajac, 2013; Righarts, O’Neill, & Zajac, 2013; Zajac & Hayne, 2003, 2006; Zajac, Jury, & O’Neill, 2009), but are still present in adolescents (Jack & Zajac, 2014). Children are seen as less credible when they are asked leading questions (Castelli, Goodman, & Ghetti, 2005). Thus, by its very nature, cross-examination is designed to elicit what the adult wants the child witness to say, not to access the child’s truthful responses.

Although it may seem intuitive that as the evidence base grows for how to appropriately question children, the nature of cross-examination of children will have improved over time, this has not occurred. Unfortunately, in at least one study, it seems that cross-examination of children has not improved, and indeed, may have even become more complex and may have more negative impacts on children than in decades past (Zajac, Westera, & Kaladelfos, 2018).

Alternatives to traditional cross-examination. There has been substantial debate within the academic and legal literature about balancing the needs of the defendant against the manner in which the literature clearly states is the best way to elicit accurate information from children (see Myers, 2017; Spencer & Lamb, 2012). Several countries have made policy advances that retain elements of traditional cross-examination, but also move closer to appropriately questioning children in court. For example, in many countries (e.g., Chile, Ireland, New Zealand, Scotland, South Africa, United Kingdom), intermediaries can be used to question children. The intermediary is trained in child development and child forensic interviewing and has the expertise to assess the appropriateness of child/adult communication. Lawyers can submit questions for the child witness to the intermediary who will review the questions for developmental appropriateness. In some cases, the intermediary then poses the questions to the child. Such innovations allow for the primary elements of cross-examination to remain in place, but provide safeguards to promote a more developmentally appropriate experience for children (e.g., Caruso & Cross, 2012; Doak et al., 2021). Despite benefits, research and consultations with various legal stakeholders have revealed some limitations to their use. These limitations include that an intermediary’s focus on simplifying language is sometimes at odds with other questioning goals and best practices (Brubacher, Deck, Plater, Lamb, & Powell, 2025; Hoff, Powell, & Plater, 2022), and–in trials specifically–that they occasionally intervene too often or at inappropriate times (Vandenberg, 2022).

7.3 Legal remedies to improve the in-court experience

Research has long established that the courtroom is not the optimal setting for children to provide information. When children are interviewed in a courtroom setting, they report less information and experience increased anxiety compared to children interviewed in a small private room (Nathanson & Saywitz, 1999). Children have also been found to be less accurate in their responses when testifying in a courtroom (Goodman et al., 1998; Nathanson & Saywitz, 2003; Saywitz & Nathanson, 1993). This decreased accuracy and comfort are likely attributable to the strange circumstances of legal proceedings that are often confusing and discomforting for children.

Bill C-2: An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons). In an effort to improve the experience for children and facilitate their provision of evidence, changes were made to the Criminal Code and Canada Evidence Act (Bill C-2) that came into force in 2006. These changes were enacted with the aim of reducing revictimization of vulnerable witnesses (including children younger than 18 years) by the justice system, while maintaining protection of defendant rights (Bala, Paetsch, Bertrand, & Thomas, 2011). To begin, children under the age of 14 years are presumed to have the capacity to testify, and their testimony “shall” be received if they promise to tell the truth and are able to understand and respond to questions (Canada Evidence Act, 2006). While a child’s competence can be challenged, the presumption is of competence. In addition, the public can be removed from the courtroom and the judge may appoint counsel to conduct a cross-examination of a child or vulnerable adult witness if the accused person is self-representing. Further, additional provisions allowed for testimonial aids to protect young victims and witnesses and make it easier for them to testify. Section 486.2(1) of the Criminal Code now states that a witness under the age of 18 years must be allowed to testify from outside the courtroom (via Closed Circuit Television [CCTV]), from behind a screen, or with a support person, unless doing so will interfere with the proper administration of justice. Further, videotaped evidence made within a reasonable time after the alleged offence must be admissible for a witness under the age of 18 years at the time of the offence (section 715.1). These testimonial aids are available for all child witnesses, on application, unless it interferes with the proper administration of justice.

These changes were monumental in the treatment of child witnesses in Canada and brought Canadian practice in-line with what the empirical evidence suggests is likely to facilitate children’s evidence provision. Research has indicated that the use of such testimonial aids decreases testimonial stress (Hamlyn, Phelps, Turtle, & Sattar, 2004; Yeats, 2004) and children who use live video (CCTV) or videotaped evidence report being less nervous about giving evidence testimony (Landstrom & Granhag, 2010). Further, children questioned via video either show increased accuracy and resistance to suggestion with this approach relative to in-person questioning, or no differences compared to live testimony (Brown et al., 2021; Dickinson et al., 2021; Doherty-Sneddon & McAuley, 2000; Goodman et al., 1998; Hamilton et al., 2017; Landstrom & Granhag, 2010; Pathirana, 2017). Early evaluation of the implementation of these reforms indicated that there was considerable uptake, with the majority of applications successful, and that the provisions were perceived positively by the courts (Bala et al., 2011).

There have been some concerns expressed that testifying with accommodations will decrease the emotional connection between the child and the trier of fact. Indeed, early research bore this concern out, with research showing that children who testified live were evaluated as more credible than children who testified via CCTV, and then via videotaped evidence (Goodman et al., 1998; Landstrom & Granhag, 2010; Landstrom, Granhag, & Hartwig, 2007). However, perhaps increased familiarity with video technology will show that these concerns may no longer be valid. In any case, the gains in child comfort in sharing their experiences may outweigh any concerns with the distance experienced when testifying from video.

Remote testimony. Courtroom accommodations, like CCTV from nearby rooms, have recently seen extension into testimony for children that does not require the children to attend the courthouse at all. Often referred to as remote or virtual testimony, a child may testify via live video link from a room that may be far away from the courthouse. This practice allows the child to be in a comfortable environment that still provides the solemn, controlled setting of a courtroom. Remote testimony rooms are increasingly found in Canadian Child Advocacy Centres (see Section VIII)–locations with which children already have some familiarity (see McDonald, Stumpf, & Gallant, 2024).

Support dogs. In addition to the courtroom accommodations specifically provided by law, many jurisdictions around the world have introduced support dogs that assist children with forensic interviews and courtroom testimony. The evidence is growing that the use of dogs has benefits for many children, including significantly reducing stress and anxiety (Howell, Hodgkin, Modderman, & Bennett, 2021; Krause-Parello, Thames, Ray, & Kolassa, 2018; Rock & Gately, 2024; Spruin, Mozova, Dempster, & Mitchell, 2020; but see Côté et al., 2024; Cyr, Dion, Daighnault, Gendron, & Côté, 2024 for no effect of the presence of dogs and concerns about distraction). Typically, a dog will lay at the child’s feet or rest their head on the child’s lap while they are questioned. Though more research is needed on how to best integrate dogs into work with child witnesses, the extant research is generally positive with regards to the use of support dogs. There is no specific provision within the Criminal Code that allows for an application for a dog to support a child witness, but prosecutors have used section 486.1 to apply for the dog to serve as a “support person” that will assist the child in providing a full and candid account by reducing the child’s anxiety (see McDonald & Poulin, 2022 for a discussion).

Despite the important advances in accommodating children’s testimony in Canada, many other countries have made much more progress that Canada should consider as we continue to improve the experience of children in the justice system. We return to this discussion in Section IX.

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