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EFFECTS EFFECTS OF THE OF THE

ACCUSATORIAACCUSATORIAL SYSTEML SYSTEM

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TESTIFYINGTESTIFYING

stressful experiencepresence of strangersembarrassing and intimate

detailspresence of the accusedcross-examination by the

accusedcross-examination is hostileenvironment is alienunknown procedure is

followed language is formalistic,

archaic and specialised

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““Courtrooms were designed Courtrooms were designed for the large number of for the large number of

adults who become adults who become participants and spectators participants and spectators

in trials. Their furniture, in trials. Their furniture, lighting, acoustics, and lighting, acoustics, and

uniformed personnel assure uniformed personnel assure a serious and, in some a serious and, in some

ways, intimidating ways, intimidating atmosphere. The theory is atmosphere. The theory is

that in such an that in such an environment, witnesses and environment, witnesses and jurors will be more likely to jurors will be more likely to take their responsibilities take their responsibilities seriously. For children, seriously. For children,

however,however, the courtroom the courtroom can do more than can do more than encourage civic encourage civic

responsibility - it can terrify responsibility - it can terrify and silence”and silence”

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EFFECT OF EFFECT OF TESTIFYINGTESTIFYING

Many attorneys, mental health professionals and legal commentators claim that court involvement traumatises a child victim.

Psychiatrists believe that psychological damage is caused not only by the abuse but by being forced to testify in open court in the presence of the accused

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DISADVANTAGEDISADVANTAGES OF S OF

TESTIFYINGTESTIFYINGBJERREGAARDa sample of children who

had testified in court were compared with a random sample of sex abuse victims

73% of court victims had behavioural problems compared to 57% of random sample

researchers attributed differences to trauma of testifying

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DISADVANTAGEDISADVANTAGES OF S OF

TESTIFYINGTESTIFYING

Gibbens (UK): children who had testified in court showed greater disturbance

De Franas (New York): found court appearances resulted in much stress and tension for children

Hill and Hill argue that normal effects of sexual abuse are aggravated by forcing child to testify in court in presence of accused

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DISADVANTAGEDISADVANTAGES OF S OF

TESTIFYINGTESTIFYINGGoodman: studied emotional

effects of abuse victims testifying in Denver - found that witnesses showed a marginally significant increase in overall behaviour disturbance; children who testified exhibited more internalizing problems (scores 2X as high)

Oates and Tong (Australia): 85,7% of parents rated their children as being very or extremely upset after hearing; 2 years later more than half parents still rated children as being extremely upset about trial

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SA Law Commission SA Law Commission accepted that the accepted that the adversarial nature of adversarial nature of proceedings were proceedings were traumatic for children:traumatic for children:““The assault that was already such a traumatic experience for the child is followed by interrogation by the police which again revives the whole unpleasant experience. Now, after months, the child is asked to relate the whole story and go through everything in his or her mind. It may be expected that he or she will be afraid and upset; and if he or she is taken into a large court room with its exalted bench and other paraphernalia a measure of dread perhaps descends upon him. Besides his guardian he sees the accused who assaulted him and some other strangers in black robes.”

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ADVANTAGES OF ADVANTAGES OF TESTIFYINGTESTIFYING

Testifying can be beneficial: exploration of trauma can

be beneficial testifying can serve as a

coping strategy can provide a

psychological closure to a traumatic experience

can empower child can be vindicating

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Testifying can be Testifying can be beneficial, but only:beneficial, but only:-where there has been a -where there has been a successful prosecution successful prosecution of the offender and of the offender and -the child has been -the child has been treated well in the court treated well in the court process and received process and received support.support.

Where the accused is Where the accused is acquitted:acquitted:-the child sees it as a -the child sees it as a secondary betrayal, andsecondary betrayal, and-the child is further -the child is further disempowered.disempowered.

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ADVANTAGES OF ADVANTAGES OF TESTIFYINGTESTIFYING

child identified as complainantskilled legal and psychological

assistanceopportunity to express

feelingsexpert opinion contextualises,

validates and responds to trauma

adults take over responsibility of dealing with offender

a ritual in terms of which child ceases to be pseudo-adult and returns to childhood

family have opportunity to show their disapproval

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EFFECT EFFECT OF OF

SYSTEM SYSTEM ONON

RECALLRECALL

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EFFECT ON ABILITY EFFECT ON ABILITY TO RECALLTO RECALL

Children shown

videotape and interviewed the following day: half in court and other half in private room.

Finding: Children in private room related more central items in free recall, answered specific questions more often and said “I don’t know” or gave no answer significantly less.

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FEELINGSFEELINGS

CHILDREN SAID:nervousembarrassedscaredwould not ever want to

testify againCHILDREN WERE OBSERVED:twisting hairtrying to leave witness

stand/courtroomshakingcrying

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EFFECT OF EFFECT OF ENVIRONMENT ON ENVIRONMENT ON

QUALITY OF QUALITY OF EVIDENCEEVIDENCE

Children participated in a staged event involving body-touch play between an unfamiliar adult male and small groups of children. The children were then questioned about the event 2 weeks later, half of them in a simulated trial environment and

the other half at their schools.

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FINDINGSFINDINGS

certain characteristics of courtroom interfere with child’s ability to give evidence optimally and increase stress

children produced less complete descriptions of past events in free recall

children made more errors in response to direct questions

children acquiesced more often to misleading questions

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FEELINGSFEELINGSfear of public scrutiny

embarrassmentpersonal inadequacies

fear of inability to cope with overwhelming emotions

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** physical context of physical context of courtroom has been courtroom has been presumed to promote truthpresumed to promote truth** this is not necessarily this is not necessarily the the case where the witness case where the witness is a is a childchild** findings support idea findings support idea that that testifying via cctv testifying via cctv produces more reliable and produces more reliable and

competent evidencecompetent evidence** variation in environment variation in environment

can effect quality of can effect quality of evidenceevidence

** more complete and more complete and detailed detailed reports in reports in informal settingsinformal settings

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EFFECT OF EFFECT OF ACCUSATORIAACCUSATORIA

L SYSTEML SYSTEM

TRAUMAACCURACY

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DIFFICULTIES DIFFICULTIES EXPERIENCED BY EXPERIENCED BY

CHILDRENCHILDREN

ORAL EVIDENCECOURT DELAYSMULTIPLE INTERVIEWS

CONFRONTING THE ACCUSED

CROSS-EXAMINATION

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ORAL EVIDENCE

The insistence on oral evidence has 2 implications:

child must give evidence personally in courtroom

long delay between event and court appearance

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THERE IS THE THERE IS THE FUNDAMENTAL FUNDAMENTAL ASSUMPTION ASSUMPTION THAT THE ORAL THAT THE ORAL TESTIMONY OF A TESTIMONY OF A WITNESS AT THE WITNESS AT THE TRIAL IS TRIAL IS SUPERIOR TO SUPERIOR TO ALL OTHER ALL OTHER MEANS OF MEANS OF EVIDENCE.EVIDENCE.

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COURT DELAYSCOURT DELAYS

Woji v Santam Insurance Co Ltd: 2 boys (aged 10) gave evidence about an accident that had taken place 5 years previously

Damba v AA Mutual Insurance Associated Ltd: child testified about an event that occurred 3½ years before

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DELAY

THERAPYMEMORY

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THERAPYTHERAPYWhen a child has

witnessed a traumatic event, it is necessary for the child to receive some form of therapy to cope with what has happened.

The child needs to deal with the experience. This is done: - by talking about it, or by playing out the incident.

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THERAPYTHERAPY

memory is not staticchildren are

susceptible to suggestion

problem areas:play therapyinterview techniquesleading questions

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MEMORYMEMORY

Delay has an effect on memory:

details are forgotten

more prone to suggestion

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EXPERIMENTEXPERIMENT

Children (aged 6 and 9) and adults witnessed a staged event and were interviewed just after the event and then again 5 months later.

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RESULTS

Findings indicated that over a period of time children do forget significantly more than adults:

no differences found when tested after 1 day

after 5 months significant difference between children

young children were able to understand and encode event, but memory faded more than older subjects

6 year olds were not more inaccurate, but they remembered less

suggestibility more pronounced after 5 months

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MULTIPLE MULTIPLE INTERVIEWSINTERVIEWS

FAMILY/FRIEND/TEACHER

POLICE OFFICER

CPU

INVESTIGATING OFFICER

PSYCHOLOGIST/SOCIAL WORKER

PROSECUTOR

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EFFECT OF EFFECT OF MULTIPLE MULTIPLE

INTERVIEWSINTERVIEWS

repetition of intimate and embarrassing details to strangers

memory not static and multiple interviews can affect memory

suggestion (expectations, stereotypes, leading questions, bribes etc)

evidence sounds rehearsed

diminishes motivation and co-operation

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CONFRONTING CONFRONTING THE ACCUSEDTHE ACCUSED

Empirical research has shown that physical confrontation with the accused damages the reliability, quality and often the very existence of the child’s evidence.

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EXPERIMENTEXPERIMENT

Children were asked to identify an adult who had been involved in a staged event from a live identification parade as opposed to a photo identification parade.

Findings: children made fewer correct identifications when viewing the live parade.

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CROSS-CROSS-EXAMINATIONEXAMINATION

The strategy of words and actions which the advocate employs during the presentation of evidence by the opposition that serves to cast doubt upon the opposing party’s case.

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COMMUNICATIONCOMMUNICATION

Ordinary conversation includes various language forms. In the courtroom only one form is used - people ask questions and the child must answer. There is no provision for the child to address the court on certain questions he does not understand or negotiate the line of questioning.

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DIFFICULTIES DIFFICULTIES EXPERIENCED BY EXPERIENCED BY

CHILDRENCHILDREN

aggression of questionsthe purpose of

questionsleading questionsperipheral questionsspecialised language

age-inappropriate vocabulary

complex syntaxgeneral ambiguity

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EFFECT OF THE EFFECT OF THE CRIMINAL CRIMINAL JUSTICE JUSTICE

SYSTEM ON SYSTEM ON CHILD CHILD

WITNESSES WITNESSES --

INPUT FROM INPUT FROM ROLE PLAYERSROLE PLAYERS

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TRUSTTRUST

Lack of trust in judicial system’s ability to deal effectively with children

Distrust emanates from both participants and public

People loathe to lay complaints and try to circumvent legal process

Role players admitted they would seek alternative recourse

Children do not receive protection

No established support system

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DISCLOSURE PROCESS DISCLOSURE PROCESS

No understanding of the disclosure process

Police take statements immediately

Judicial officers do not understand disclosure process and find children to be untrustworthy

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INVESTIGATION OF INVESTIGATION OF CHILD ABUSE CASES CHILD ABUSE CASES

Poorly conductedAttributed to lack of

specialised training and lack of resources

Police do not have specialised training in interviewing/ communicating with children

Don’t understand disclosure process

Incompetent statement taking

Questions posed are vague and ambiguous - affect replies

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DELAYS AND REMANDS DELAYS AND REMANDS

Cases are constantly postponed or remanded

Delays affect quality of evidence

Remands enhance child’s anxiety - undergoes anticipatory trauma again and again

Child doesn’t understand what a remand involves

Before court date family become anxious - postponements create distrust

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THE ROLE OF THE THE ROLE OF THE INTERPRETERINTERPRETER

No special training with regard to child witnesses

Therefore no knowledge about language development/ child communication

Little control over question/ phrase

Negatively affects child’s credibility

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THE PROSECUTORTHE PROSECUTOR

Lack of specialisationSuitable prosecutors

be identified and trained

Children come into contact with more than one prosecutor

Very little time to consult with children

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THE COMPETENCY THE COMPETENCY TESTTEST

Test inadequateNo standardised

questionsCreates confusionsServes to exclude

children’s evidenceNot culturally

sensitive

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DELAYS AT THE DELAYS AT THE TRIALTRIAL

Witnesses told to be at court early and have to wait

Creates difficulty for young children

Child eventually tired, tearful and unco-operative

Often no special waiting room - child must wait in corridor

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OTHER DIFFICULTIESOTHER DIFFICULTIES

Children with special needs

Training for presiding officers

Medical examinationVictim supportIntermediaries: meet

before to develop rapport

PreparationBail