When Lawyers Challenge the Credibility of an Allegedly Abused Child

In child abuse cases, the testimony of an allegedly abused child may be relied upon to help fact-finders (such as hearing officers in CACI grievance hearings) reach an informed conclusion. In a bid to clear their clients’ names, it’s not uncommon for defense lawyers to challenge the credibility of child witnesses. They do this by asking the child credibility-challenging questions during cross-examination.

Here we outline the credibility-challenging questions that defense lawyers may focus on to discredit an allegedly abused child’s testimony, and how children respond to these questions.

The testimonial competence of children has always been a hot topic in the legal profession. While the testimonies of child witnesses is admissible in legal proceedings, it’s their credibility that may be tested. Credibility challenges for child witnesses vary by type and content. (See Zsofia Szojka, Samantha J. Andrews, Michael E. Lamb, Stacia N. Stolzenberg, Thomas D. Lyon. Challenging the Credibility of Alleged Victims of Child Sexual Abuse in Scottish Courts. Univ. of Southern California Law School. Legal Studies Working Paper Series. 2016. Paper 233.)

The credibility-challenging questions that defense lawyers ask allegedly abused children can either be general or specific. The general questions are aimed at casting a doubt in a child witness’s testimony by alleging, for instance, that the child is untruthful or insincere. Specific credibility-challenging questions are often intended to draw inconsistencies between the child’s present and past statements.

General credibility-challenging defenses can be further broken down into eight subcategories. These are:

• Positive relationship with the defendant
• Memory recall problems
• Underage drinking
• Adult influence over the minor
• History of bad conduct or behavior
• Consent to sexual engagement with the accused
• Confusion
• Accusations of dishonesty

Specific challenges focus on pointing out omissions or additions to details relative to the statements made by a child under oath. Here, defense lawyers look for contradictions between the witness’s current and previous testimonies.

The sources of contradictions include:

• Physical or documentary evidence
• Statements made by children during legal proceedings
• Statements made by children during forensic interviews
• Other witnesses’ accounts

The content of witness credibility-challenging questions can be either central or peripheral. Central content is intended to understand the exact context in which a child was abused. The defense lawyer will want to know:

• The events that led up to the abuse
• How the abuse happened
• What happened immediately after the abuse
• How details of the abuse were communicated

Peripheral content addresses the non-essential details of the incident. These include:

• Reasons for lying – a child may lie because they want to protect an adult that has influence over them
• Descriptions of thought – this may focus on the child’s choice of words when describing an incident of abuse
• Non-plot related recollections of location, time, and events

How children respond to credibility-challenging questions influences the legal system’s decision to use or discredit their evidence.

Like adult witnesses, child witnesses also respond to credibility challenges. Children’s responses to credibility challenges can be categorized as:

• “Don’t know/remember” – when a child witness avoids agreeing or disagreeing with the questioner’s suggestion by simply saying that they can’t recall something
• Compliant – when a child witness affirms the questioner’s insinuation and casts doubt on their credibility
• Resistant – when a child witness disapproves of the questioner’s suggestion that they consented to something
• Non-relevant – when a child witness doesn’t give a direct answer to the question that they’re asked

Child witnesses’ responses may vary depending on their age, when the alleged abuse happened, and how long it has taken for trial proceedings to commence. However, there’s no statistically significant difference in the number of credibility-challenging questions that both younger and older children get asked. Also, child witnesses have an equal ability to resist challenges to their credibility regardless of their age.

Child witnesses exhibit a high level of resistance to questions focused on central context and general challenges when they understand the aim of credibility-challenging questions directed at them. However, these witnesses show less resistance and more compliance with specific challenges and challenges focused on peripheral content.

It’s important to point out that many factors may affect a child witness’s compliance or resistance to the question’s credibility-challenging questions. However, their capacity to recall past events accurately is what mainly influences their responses.

While all children have an equal capacity to resist questions that are aimed at discrediting their credibility as witnesses in child abuse cases, not all credibility-challenging questions are age-appropriate. Despite the fact that there’s a general consensus among legal professionals that the rules for cross-examining children during the legal proceedings should be relaxed a little, one shouldn’t forget that the point of the proceeding is, above all, to reach the truth. It’s important to ensure that the trier of fact (i.e., the hearing officer in a CACI grievance hearing), doesn’t make something else the primary objective, such as the goal of shielding a child from pointed examination for fear of emotionally scarring the child.