EXAMINATION OF A CHILD WITNESS:

CROSS-EXAMINATION TECHNIQUES

I. ABSTRACT
A trial lawyer is akin to a warrior. Just like a warrior
fighting for his homeland and his people, a lawyer must be
properly equipped with his firm knowledge on the Rules on
Evidence. The Rules is a lawyers sword in his battle to pursue
justice and protection of his clients. A lawyer going to trial
lacking the concrete knowledge on the Rules is more than a
fool. He is like a warrior going to war without a weapon
endangering himself and letting his people down. A lawyer
must not only be a sage in the Rules, he must also fully
understand how to properly wield his sword in order to be said
a true and unfeigned trial lawyer.
With the above metaphor, it simply states that a trial
lawyer must have a firm grasp of knowledge and
understanding of the Rules on Evidence in order that he can
objectively and properly educe the truth. However, sometimes,
even solid knowledge and understanding are not enough for a
trial lawyer to wield his sword right. In some moments, he
needs the help of other tools or weapons to win a war.
Such statement is evident in the examination of a
child witness. Even a savant or expert in the Rules on
Evidence and other related rules fails in finding the material
truth regarding a particular matter of fact. A lawyer examining
a child, particularly those victims of crimes, seems to be in a
battle equipped with a double-edge sword. Each ply and wave
of the sword must be done vigilantly. Why? This is because of
the wide gap in the perception and cognition between a child
and an adult. A slight mistake might result to fatal
disadvantage.
Traditional procedures in examination of a witness
have been designed for use in adults and that these
procedures could be inadequate for the use in children. It is
 therefore necessary to critically evaluate the examination
techniques for proper use in children considering that child
witnesses have special needs to be satisfied and particular
rights to be protected.
Thus, for this paper, the objective is to go beyond the
Rules and find tools and aides for the correct and appropriate
examination of a child witness which are not actually learned
in the law school. But I will firstly discuss some topics which
would lay the basis for the purpose of this paper.
II. RULE ON EXAMINATION OF A CHILD WITNESS:
OVERVIEW

The Rule was promulgated with the objectives to create

and maintain an environment that will allow children to give
reliable and complete evidence, minimize trauma to children,
encourage children to testify in legal proceedings and facilitate
the ascertainment of truth1. The Rule was designed to be
liberally construed to uphold the best interests of a child
witness2.

In an administrative case3 decided by the Supreme Court,

respondent judge was held liable for gross ignorance of the
law. Respondent conducted an open-court preliminary
investigation where Nancy, a minor, was called to the witness
stand and, in the course of her testimony subjected to
humiliation as all those present, including respondent, the
counsel for the defense, and prosecutor, were laughing. The
Court ruled that respondent deliberately failed to comply with
the Rule on the Examination of a Child. The Rule does not
permit a defense counsel to even approach a child who is
testifying if it appears that the child is fearful of or intimidated
by the counsel. Neither does the Rule require a manifestation
from the child or her mother to exclude the public from the
hearing. The court may motu proprio exclude the public from

1 Section 2 of A.M. No. 004-07-SC

2 Section 3 of A.M. No. 004-07-SC
3 Jesusa Genil vs. Judge Rivera, A.M. No. MTJ-06-1619 January 23, 2006
 the courtroom to protect the right to privacy of the child; if
requiring the child to testify in open court would cause
psychological harm to him; if it would hinder the
ascertainment of truth or result in his inability to effectively
communicate due to embarrassment, fear or timidity; and if
the evidence to be produced is of such character as to be
offensive to decency or public morals. Thus, the contention of
respondent judge that the open-court investigation is justified
because the complainant failed to manifest that public be
excluded does not persuade.

Said case, applied the liberal construction of the Rule on

Examination of a Child Witness and took into consideration
the best interest of the child witness. Noteworthy also, the
case laid that the Rule is also applicable in the course of a
preliminary investigation and not only during the trial.

III. COMPETENCY AND CREDIBILITY OF A CHILD WITNESS

Every child is presumed qualified to be a witness.

That is provided under Section 6 of the Rule on

Examination of a Child Witness4. To rebut said presumption of
competency enjoyed by a child, the burden of proof lies on the
party challenging his competence.

The Assessment of the Credibility of a witness on the

other hand lies with the province of the trial court 5.

4 A.M. No. 004-07-SC

5 People v. Abaigar, G.R. No. 199442, April 7, 2014
 In the case of People vs. Alvin Esugon 6 for robbery with
homicide, the Supreme Court deemed it correct on the part of
the trial court to admit the testimony of a 4-year old boy in
identifying the suspect. The Court distinguished discrediting
the testimony of a child witness from challenging his
competency. Discrediting the testimony does not imply that the
competency of the child as witness is being challenged. The
latter requires adducing of evidence to challenge such
competency by showing that the child was incapable of
perceiving events and of communicating his perceptions, or
that he did not possess the basic qualifications of a competent
witness. Consequently, the Court ruled that the boy was
competent and despite the inconsistencies in his testimony, the
Court held him as a credible child witness.

In the case of People vs. Rene Santos 7 for rape, the

Supreme Court affirmed the decision of the Court of Appeals
and the Regional Trial Court in giving credence to the
testimony of the 5-year old victim. The Court stated that it is
likewise well established that the testimony of a rape victim is
generally given full weight and credit, more so, if she is a 5-
year-old child as in this case. The revelation of an innocent
child whose chastity has been abused deserves full credit, as
her willingness to undergo the trouble and the humiliation of a
public trial is an eloquent testament to the truth of her
complaint. In so testifying, she could only have been impelled
to tell the truth, especially in the absence of proof of ill motive.

However in a known case8 against Bella Ruby Santos

for kidnapping and killing of then 6-year old Ellah Joy Pique
filed with the Regional Trial Court of Cebu City, the case was
dismissed by the grant of the demurrer to evidence resulting to
the acquittal of Santos. The prosecution relied on the testimony
of the 11-year old eye witness which was ruled by the trial
court as not reliable. The trial court considered previous

6 G.R. No. 195244, June 22, 2015

7 G.R. No. 172322, September 8, 2006
8 People vs. Bella Ruby Santos, RTC of Cebu City Br. 6, October 11, 2014
 inconsistencies on the identification of the accused by the child
witness, and thus did not give credence to the testimony of the
child witness.

With the above cases, it can be said that admission of

testimony of a child witness really lies with the discretion of the
court (the judge). Children of ages 5 and below may be
considered as competent and credible as witness while
ironically, children of ages 11 and above may be deemed
incompetent or not reliable/credible as witness.

IV. THE PROBLEMS ENCOUNTERED IN THE EXAMINATION

OF A CHILD WITNESS

1. VULNERABILITY TO SOCIAL INFLUENCE.

Children are more intuitive than adults. They are

also more attentive to nonverbal cues. As adults become
more educated, sadly they become more cerebral.
Because the childrens verbal skills are still in the early
stages of development, they have not learned to rely so
much on what is said and tend to be better tuned to how
things are said.

There is also what experts call the accommodation

syndrome whereby a child's wish is to be liked by people
in positions of authority (virtually every adult to a child).
Children are more suggestible (susceptibility to
suggestion) and compliant (the tendency to trust an adult
and the will to please the adult by giving correct
responses) than adults9. As a result, children tend to say
what they think an adult wants to hear, regardless of the
truth or accuracy of their statement. It is simply a
heightened observation with a child because of the child's
sharper intuitive skills10.

9 Cross-Examination of a Child Witness, Joel Erik Thompson

10 Interviewing Child Witnesses, Erasmus Mundus Joint PhD in Legal Psychology, 2013
 2. CHILDREN DONT LIE THEORY

Children often have little perception of the

magnitude of the consequence of a lie regarding
molestation or related interrogation. They also often lack
the clear distinction between what they have personally
observed or experienced and what they have been told.
An obvious example is the three-year-old who will
adamantly insist that there is a Santa Claus, because
they have been told that he exists by people the child
trusts and the child has seen persuasive evidence. Thus,
often children make statements that are not factually
accurate, but they are not "lies" because the child lacks
the intention to willfully mislead or deceive.

The common prosecution anecdote of showing that

a child witness knows the difference between the truth
and a lie is really of no use in evaluating the credibility of
the witness or the child's competency to testify. A child
may truly understand the difference between the truth
and a lie, yet have no comprehension of whether what an
adult says to them is one, the other or both 11.

3. Communication Errors When Talking With Children

The world of the average child is literally as well as

metaphorically speaking much smaller than the world of
the average adult. However, in a forensic interview
children are asked to give detailed descriptions of people,
places, times and spaces.

Young children can also have difficulties

understanding the questions asked by the interviewer
and look at the use of the question from different person
perspectives. This discrepancy between the worlds of
11 Cross-Examination of a Child Witness, Joel Erik Thompson
 adults and children can cause difficulties in the
communication between the interviewer and the child.

Children have great difficulty recalling events in

sequence. Thus, if the child seems uncharacteristically
able to put events in a sequence, you should suspect
adult interference with the child's natural recollection
process.

Children also have difficulty with numbers. A young

child may be able to count to10, but if asked how many
times he was molested, the same child is totally
incapable of giving an answer.

Family relationships are also confusing to children.

Daddy's mommy. Is that the child's grandmother, or
Daddy's wife? To a child, a mommy is the woman living
in the house who is responsible for domestic matters like
meals, baths and laundry. If questions are not
formulated with great care, it takes very few questions to
create a total mishmash out of the child's description of
events and participants.

4. DIFFERENT PERCEPTION BETWEEN ADULT AND A

CHILD

The worldly perspective of a child is very different

from an adult's. Adults see the world from 60 to 72
inches above the floor. Children see the world from 30 to
36 inches above the floor. Where visual observations are
critical, part of your pretrial investigation should be
"standing" in the child's position while on your knees.
Areas where children are naturally inaccurate in their
testimony are often more persuasive of the truth of the
allegation than the opposite. For example, a three year-
old who says "then the man peed," rather than he
ejaculated, is more in line with a child's perception of the
function of a penis. Again, if the child seems unnaturally
 accurate regarding such testimony, the careful examiner
should become suspicious of adult contamination of the
testimony.

Another problem is that some children may blend

fantasy and reality that sometimes, they cant distinguish
between the two resulting to failure to elicit the truth.

5. PERIOD BETWEEN TIME TO TESTIFY AND

OCCURRENCE OF EVENT/FACT

One critical problem in examination of a child

witness is the long period of time before the child can
testify as a witness. In reality, such taking of a childs
testimony is delayed by several reasons such as
numerous extensions by either or both parties, absence
of the judge, and other reasons. Because of such delay,
the reliability of a child as a witness is now diminished.
The child cannot accurately recall the even or happening
by because of the lapse of time. Fantasy now will also
enter and blends with reality making testimonies of
children useless. Also, during such period, intervention
and coaching by adults now are highly possible.
6. INAPPROPRIATE QUESTIONING / LINE OF QUESTION

A major problem that children face, that goes to the

heart of the trial process and its truth-seeking function,
is that they are often questioned inappropriately. Lawyers
and judges frequently fail to adjust their questioning for
children. They tend to use inappropriate vocabulary,
double negatives and confusing sentence structure, even
when questioning adults. The confusing use of language
is always a concern in court, but is especially
pronounced when children are questioned. Too
frequently, legal professionals seem unaware of the
fundamentals of child development. Too often a child is
 asked questions that no child of that age could be
expected to understand or answer meaningfully.

For them, words and ideas often have different

meanings. Children also have more limited life experience
than adults and often do not understand the reasoning
or motives of adults. Additionally, they do not
understand the legal system. As a result, complex
questions are often beyond children's ability to
comprehend. These factors affect how they understand
the questions they are asked as witnesses.

Children who are subjected to confusing and

inappropriate questioning are unable to communicate
accurately what happened to them and what they
observed. This type of questioning can make the
experience of being a witness deeply upsetting for a child.

Thus, as I aimed for this paper, I have researched

various published articles and studies regarding effective
and appropriate questioning of a child witness which
shall be discussed by the following topic.

V. QUESTIONING CHILD WITNESSES EFFECTIVELY

(CROSS-EXAMINATION IN PARTICULAR)

As I have read from several researches and articles,

many have given mouthful of tips and expert advice in
examining child witnesses. For the purpose of this paper, I
will focus and revolve around the questioning during cross-
examination. This is because, most of the problems
encountered in the examination of a child witness is during
cross-examination wherein the child is exposed to various
risks and on the part of the opposing party, is the
heightened difficulty and pressure not to violate any of the
rights of the child.
 Below then is the combined and summarized tips
and advice in cross-examining a child witness.

A. PREPARATION: BECOME AN EXPERT ON THE CHILD

Knowledge can be a very powerful tool of the lawyer

in preparing for cross-examination of any witness. The
more you know about a child, the better able you are to
tell your clients story and show that the government
theory of prosecution is wrong.

1. Interview the Child.

If it is possible, try to interview the child witness

prior to the commencement of trial. It is important to
know how the child is going to react to questions and for
you not to be a total stranger. Most of the time, the first
opportunity that the lawyer gets to meet the accuser is in
the courtroom12.

2. Review Records.

Review all of the childs permanent records,

including, but not limited to, medical records and school
records. Issue subpoenas early in your investigation for
school records, medical records, day care center records
or any other type of document that can provide
information about the child.

For example, in a sexual assault trial, on direct

examination, a child, in the fourth grade, testified that
the last time that the accused molested her was during
the summer before third grade and she remembered that
he moved out of the house while she was in the third
grade. It was established from a number of independent
witnesses, including the childs mother, that the accused
moved out while the child was in the first grade and not
12 Interviewer effects on children's testimony, Pettit F, Fegan M, Howie P
 the third grade. The childs cross-examination created a
time line of events relative to her third grade experience
and the accused moving out of the house just before
Christmas the year before the trial. Her impeachment
would come from other witnesses and the school records.
Her veracity could be questioned indirectly based on
circumstances of the allegations and relationship
between the parties.

2. Childs Interests.

Find out all you can about the childs interests by

talking to others that know the child. It is important to
make the child be at ease with you and get the child use
to answering questions that are easy. You might be able
to create a situation whereby the child answers all of the
States questions with full answers and then answers all
of your questions with a single word yes or no or nope.

3. Family Dynamics.

The childs family dynamics can provide the

background information to explain the childs need for
attention as a basis for the lies or the basis for his
perception of events observed. Learn the particular
problems of the family. Then find how they impact the
situation that lead to the allegations. You will need to
contact a psychologist to discuss the impact that the
family dynamics might have on the childs emotional,
physical or intellectual developments.

4. Psychological Examination.

Determine if the child has been examined by a

psychologist in preparation for trial or for treatment
related to the trial issues13.

13 Cross-Examination of Child Witnesses, STANLEY G. SCHNEIDER

B. ACTUAL CROSS-EXAMINATION: PROPER QUESTIONS

1. Avoid bias; explore alternative hypotheses or

explanations. The most important thing for a child
interviewer to do to obtain a reliable statement from
the child is to have no preconceived belief as to what
happened. The approach should be one of hypothesis-
testing. Unfortunately, many interviewers try to get the
child to say things which confirm what they already
think happened. The importance of avoiding bias and
taking a hypothesis-testing approach is basic and is
specifically addressed by most of the articles that
discuss interviewing guidelines.

If the interviewer has a preconceived belief about

what happened, he or she is likely to ask questions
and get answers that confirm this belief.

To avoid biasing the interview, the interviewer must

explore alternative hypotheses. One is that the crime
complained of occurred as alleged and testified by the
child but there are other possibilities such as but not
limited to:

- The allegations are basically valid, but the child

has substituted a different person for the
perpetrator.
- Some of the allegations are valid, but the child
has invented or been influenced to make
additional allegations that are false.
- The child misperceived innocuous or
inappropriate but non-abusive behaviors as
sexual abuse. The child has been influenced or
pressured to make a completely false allegation to
serve the needs of someone else.
- The child has made a false allegation for personal
motives of revenge, gain, to show off to a peer, or
to help someone else.
 - The child has fantasized the allegations, possibly
because of psychological problems.

2. Videotape (or at least audiotape) all interviews

There is a strong consensus that interviews of child
witnesses should be videotaped, or at least
audiotaped. Only electronic recording can ensure an
accurate record of the interview. Without a tape, there
is no way to know just what was said by the
interviewer to elicit a response from the child. There is
no way to know just what the child said. There is no
way to determine whether the child's statements are
the result of a leading, coercive, and contaminating
interview rather than the child's account from his or
her own memory and personal knowledge.
This is a very good strategy whether in open-court
trial or in an outside-court through a live-link
television testimony.
3. Interview the child alone

The child should be interviewed alone unless he or

she is too young to separate from the parent. A parent
or other supportive adult sitting in on the interview
can either intentionally or inadvertently cue the child
and contaminate the interview. The only exception to
this is when a very young child refuses to separate
from a parent. If there is already a rapport or harmony
in the interview, if the child seems comfortable, the
interviewer can ask the child if the parent can leave
and wait nearby14.

4. Have a rapport building phase at the beginning

There should be a rapport building phase at the

beginning of the interview. One purpose of this part of
14 Ceci SJ, Bruck M: Jeopardy in the Courtroom: A Scientific Analysis of
Children's Testimony
 the interview is to talk about neutral topics and help
the child become more comfortable. But it is also to
encourage and teach the child to give information to
the interviewer.

The interviewer should avoid asking a series of

closed and forced choice questions during this phase
of the interview. Such questions tell the child that this
is like school where there are right and wrong answers
and the teacher knows the right answer and is testing
the child to see if the child also knows. Adults
routinely test children by asking them questions to
which the adult already knows the answer and
children are not accustomed to being questioned by
authoritative adults when only they have the
information and the adult does not.

5. Have a practice interview

During the rapport phase there should be one or
more practice interviews where the child is asked open
questions about neutral topics, such their last
birthday party or the first day of school, and
encouraged to give detailed narrative answers.

These practice interviews allow the interviewer to

gauge the child's memory and ability to describe past
events. They also allow the child to practice giving
information in response to open, non-leading
questions. Research indicates that interviewers get
better information from children when they begin with
such practice interviews15.

6. Provide ground rules

Young children have a tendency to try to answer

any question an adult asks and may provide answers

15 Age differences in young children's responses to open-ended invitations in the course of forensic interviews.
Lamb ME, Sternberg KJ
 to unanswerable questions such as "Is milk bigger
than water?" or "Is red heavier than yellow?".
Therefore, child interviews should begin with ground
rules that include telling the child the interviewer
doesn't know the answers and that it is all right for the
child to say "I don't know" or "I don't remember," and
that the child should correct the interviewer if she says
something wrong.

Examples of ground rules include:

- I wasn't there and I don't know what happened.
Please tell me everything you can remember.
- It's all right to say "I don't know" if you don't
know the answer: Please don't guess.
- If you cannot remember everything, that's okay.
It's all right to say "I don't remember."
- If I misunderstand something you say, please tell
me. I want to understand everything you say.
- If I get something wrong, please correct me.
- It's important to only talk: about things that
really happened. We don't talk about make
believe or pretend.
- If you don't understand something I say, please
tell me and I will try to say it using different
words.
7. Ask open questions and encourage a free narrative
from the child.

Although the Rules on the Examination of a Child

Witness allows leading questions, these types of
questions are not actually effective if consistently
used. As studies shows, the most reliable and
forensically useful information from children is
obtained by encouraging the child to give a free
narrative of the alleged events and by asking a series
of open, nonleading questions (e.g., who?, what?,
when?) or asking the child to "tell me everything you
remember about ..."
 Freely recalled information is more likely to be
accurate than information obtained in response to
yes/no and forced choice questions. Consequently, all
of the articles discussing guidelines for child forensic
interviews make this recommendation. Even children
as young as four can provide substantial amounts of
forensically relevant information in response to free-
recall prompts. This means that interviewers do not
have to rely on forced choice and yes/no questions
even with preschoolers.

Whenever the child gives response that is on track,

the interviewer should encourage a narrative response
by asking, "Tell me everything you can remember
about that." When the child pauses, the interviewer
should follow up with additional open-ended prompts
such as, "And then what happened?," "Tell me more
about that." Such open questions should constitute as
much of the questioning as possible.

8. Pair specific questions with opened-ended prompts.

After obtaining as much information as possible

with open questions, interviewers may need to ask
specific questions to address important areas that
have not been mentioned by the child. When this is
necessary, it should be later in the interview; such
questions should not be asked at the beginning. But it
is a common error for interviewers to ask specific
questions rather than encouraging narrative
16
responses . When a more specific question must later
be asked, it should be paired with an open question.

For example, if the child is asked if his clothes were

on or off and says, "Off," the interviewer could then
say, "Tell me everything about how they got off" If the
16 The Relationship Between Investigative Utterance Types Of Child Witnesses, Sternberg KJ
 interviewer asks if anything happened in the bedroom
and the child says, "Yes" the interviewer can then say,
"Tell me everything that happened there." The risk of
getting inaccurate information from such closed
questions can be minimized if they are paired with an
open-ended prompt.

9. Avoid pressure, coercion, suggestion through giving

the child information, asking leading questions, and
repeating questions

Although open-ended questions can be repeated

without contaminating the child's statements,
interviewers should avoid repeating specific, closed,
and yes-no questions. When children are asked the
same question repeatedly, they can change their
answers to conform to what they think the interviewer
wants to hear17.

10. Avoid play, fantasy, and imagining.

The interviewer should avoid using such terms as

"pretend" or "imagine" or engage in imaginative play as
part of the interview. False disclosures of abuse can
sometimes occur in response to techniques involving
fantasy, imagery, visualization and reenactment
during play18. Guided imagery techniques can be
particularly suggestive and can lead to the child
confusing an imagined event for something that really
happened. Techniques such as having puppets talk to
each other, as were used in the, should be avoided.

11. Avoid reinforcing specific responses.

17 A Scientific Analysis of Children's Testimony, Ceci SJ, Bruck M

18 A Guide to Interviewing Children: Essential Skills for Counselors, Police, Lawyers and Social Workers, Wilson C,
Powell M
 Social reinforcement can have a powerful effect on
behavior and interviewers should never selectively
reinforce specific responses. Research shows that such
reinforcement during interviews can readily elicit false
allegations of wrongdoing from children 19.

Several types of interviewer behavior are forms of

selective reinforcement or punishment that can
contaminate interviews, including:
- Praising the child for making allegations
- Implying that the child is being helpful or
showing intelligence by making allegations
- Criticizing the child's statements by suggesting
they are wrong or inadequate
- Giving tangible rewards such as food following
disclosures
- Limiting the child's mobility (e.g., letting the child
go to the bathroom or terminating the interview)
until the child has talked about the topic of
interest to the interviewer
- Although it is important to create a warm and
supportive environment, all such selective
reinforcement of the child's responses must be
carefully avoided.
-
CONCLUSION
These are several tips and expert advices that came from
extensive studies and research which were proven effective.
However, in actual practice, these are not really applied. One
reason could be the lack of training and seminars not only for
the facilitator himself but also for the judges, lawyers and
social workers. Another factor could be the traditional way and
procedure of examining a witness is very hard to deviate from.
In the present, many cases involves children as the
accused, victim or merely a witness. There are cases of

19 More than suggestion: The effect of interviewing techniques from the McMartin preschool case, Garven S,
kidnapping, child trafficking, child pornography, rape, drugs
and other crimes. Thus, it is inevitable that children must be
asked to testify in order to find the truth. There are even cases
where reliance to a child's testimony is the only available
evidence. Thus, we hope that our Rules in the Examination of
a Child and other related laws be implemented accordingly in
order to achieve its objectives which is for the best interest of a
child as witness.

By: MACARIMPAS, RAIHANAH SARAH T.