Lost in Application: Child Witnesses and Psychological Research on Trial

Conference programme

Conference starts 10:00 and the formal programme closes around 17:00. The final part of the day (17:00-18:00) is open for further discussion and networking for those who can stay longer.

Keynotes and panel discussion (interdisciplinary panel of experts) will be followed by small group work (groups chaired by members of the judiciary, research, child protection, policy), and a forum to discuss results. The day will be punctuated by contributions/reports/experiences of child witnesses.

Wednesday 10 June 2009

Venue: Hilton Hotel, Timbold Drive, Kents Hill Park, Milton Keynes, MK7 6HL, United Kingdom

Keynotes

Lost in Application? Child witnesses and psychological research on trial in England and Germany.

Johanna Motzkau

What is the role of psychological research for legal practice? How, and at what cost, do legal systems address the dilemma of giving children access to justice, while remaining uncertain about their ability to satisfy the legal 'call to truth'?
Based on research into children's testimony, England has seen drastic changes designed to improve child witness practice. However, findings don't always translate smoothly into practice. Interviewers may deviate from recommended procedures and courts may have difficulties applying researchers' advice. So is there a missing link between research and practice, or is psychological knowledge lost in application?

This presentation reports examples and findings from research that compared child witness practice in England and Germany. It examined the interaction between research and practice via observation and interviews with legal practitioners (police, lawyers, judges) and psychological experts and researchers in both countries.
Findings suggest that rather than being the result of isolated 'bad practice', or 'bad guidelines', problems are caused by the way research and practice, and different agencies, interrelate more broadly. Hence it is suggested that a broader systemic understanding of the contexts and constraints under which knowledge is produced, communicated to practitioners, and then applied in a legal context, could provide a productive perspective for both, research and practice. Identifying the shared problems and systemic uncertainties could help contribute to opening up a productive, shared agenda for improving child witness practice. This conference forms part of such an effort for opening up the debate.

What young people tell us about being a witness at court: are we listening?

Joyce Plotnikoff

This talk gives 'an advance look' at the findings of the first national survey of young witnesses, based on face-to-face interviews with 182 young witnesses across England, Wales and Northern Ireland. 'Measuring Up?' Evaluating Implementation of government commitments to young witnesses in criminal proceedings was funded by the National Society for the Prevention of Cruelty to Children (NSPCC) and Nuffield Foundation and the report will be available from July 2009 on the NSPCC Research Department website.

The study compared government policies with the experiences of the young witnesses and their parents and carers. It found high rates of anxiety and stress symptoms among young people in the period while they waited to go to court. Many also experienced difficulties at trial, including long waits to testify. Policies expect questioning to be tailored to children's age and abilities: however, half of those who give evidence did not understand some questions. (This applied across all age ranges in the sample). In all, 65 per cent described problems of comprehension, complexity, questions that were paced too fast or having their answers talked over. Most of those who experienced problems with questions had been advised they could tell the court about a problem, but fewer than half actually did so. A fifth of young witnesses were unable to tell the court everything they wanted to say.

Guidance indicates that assessment by a registered intermediary (the 'intermediary special measure', section 29, Youth Justice and Criminal Evidence Act, 2009) should be considered if someone under 17 'seems unlikely to be able to recognise a problematic question or tell the questioner that he or she has not understood'. The researchers considered that approximately 70 per cent of children in the study were eligible for an intermediary assessment but only two were assessed.

The findings indicate a significant gap between policy objectives and children's experiences. There is a need for greater awareness among all criminal justice system personnel about the level of communication problems experienced by children in the general population and, in particular, by young people at court. The study suggests the need for greater intervention by the judiciary and prosecutors to ensure that questioning at trial is developmentally appropriate.

Interviewing child witnesses and credibility assessment in Germany; the law and expert practice, an experiential account

Sandra Loohs

Psychological experts for the assessment of the credibility of witness statements are routinely employed by Germany courts since the 1950s. In 1999 a ruling by the German High Court explicitly defined the methodological standards for the assessment of statement validity via a method called Statement Validity Analysis (SVA) and confirmed the method of Criteria Based Statement Analysis (CBCA) as its main component.

Other than UK jurisdictions, Germany has an inquisitorial legal system. This means that, while the task of prosecution and defence barristers is similar to that of UK colleagues, criminal trials do not involve a jury. The investigation, questioning of witnesses and sentencing is performed by a professional judge (or in some cases a panel of 3 professional and 2 lay judges). Accordingly in the German criminal legal system, it is the judge's task to assess the credibility of witness statements. However, judges are required by law to consult experts in cases where the special circumstances of the case mean that the judge(s) feel their own expertise is not sufficient to fully assess the credibility of witness statements. Such circumstances include witness is of very young age, shows signs of psychological issues, is learning disabled, the alleged incident is a long time ago or there are problematic circumstances regarding the way the report has emerged (e.g. repeated questioning, suspicion of suggestive influence or coaching).

The psychological expert is usually employed by the prosecution or the court in agreement with the defence, and is required to serve as a neutral advisor to the court (rather than a 'party expert'). Crucially, experts are not assessing the credibility of the person, but are explicitly required to focus on the credibility of the specific statement in question. Experts receive a complete set of case files, and will conduct an elaborate assessment of the witness (including an interview about the incident in question).

The assessment technique: The guiding question for SVA is: 'Could this witness – considering their given individual characteristics, the specific circumstances of the interview, and taking into account any possible influence of a third party – make this specific statement, whilst it is not based on an actual experience?'. Hence, a full SVA consists of four steps:

1. The expert reviews all available information about the case at hand (using the case files provided by the court) and formulates a number of specific hypotheses as to why the witness statement might not be experience based.
2. The expert meets the witness to:
   1. collect information about their current life situation and background (in the case of a child witness, talking to the carer/parent)
   2. administer psychometric tests to find out about the witnesses' cognitive abilities (e.g. 'would they be cognitively capable of telling this story if it were not experience based?')
   3. discuss the specific event in question (beginning with very open invitation to report everything about the event, and then narrowing the focus to ask more specific questions, guided by hypotheses formulated earlier).
3. Transcribe the interview and analyse it using CBCA.
4. Assess the witness statement guided by the hypotheses formed and against the background of all the information collected in steps 1, 2 and 3.

The assessment is written up in an elaborate report that introduces the method used (SVA) and discusses in detail the hypotheses formed against the results of the assessment, weighting all the different factors. The German legal system requires the expert to report all their findings live in court as well, giving their informed opinion on the credibility of the witness statement. The expert will also be questioned and challenged by the judge(s) and the barristers.

The involvement of psychological experts in this way is highly valued in German criminal proceedings, as their assessment can provide the court with valuable additional details about the case and the way a statement has emerged, and the presence of the expert in court often means that questions regarding child witnesses' credibility and the circumstances under which their statement was made, can be explicated by the expert, taking pressure off child witnesses.

This presentation will give a detailed insight into the way German psychological experts conduct credibility assessment, interview child witnesses, conduct their analysis and report their findings to the court. Even though it is unlikely that such a method could become admissible to legal practice in the UK, reflecting on the interviewing practices possible in Germany, and thus the type of evidence available to German courts, could provide valuable ideas for improving child witness practice in the UK.