It is trite that the children have been accorded special treatment by the
legislature (of various countries) and courts because of their special needs.
The environment of a court room is unfamiliar and definitely intimidating to a
child who is required to testify as a witness. The trauma faced by a child
witness where a child witness is a victim as well is further aggravated. This
important subject has received attention of the United Nations as well which
has framed the ‘United Nations Guidelines on Justice in matters involving
Child Victims and Witnesses of Crime 2005’. The UN guidelines prescribe
that the children are particularly vulnerable and need special protection,
assistance and support appropriate to their age, level of maturity and unique
needs in order to prevent further hardship and trauma that may result from
their participation in the criminal justice process. The UN guidelines further
prescribe that female child witness is more vulnerable than the male child
witness and may face discrimination at all stages of the justice system. The
UN guidelines stresses the importance of ensuring dignity and physical,
mental and moral integrity of the child witness; the justice process should be
sensitive to child’s age, wishes, understanding, gender, sexual orientation,
ethic, cultural, religious, linguistic and social background, caste, socio-
economic condition as well as special needs of the child including health,
ability and capacities.
49.
The assessment of competence of a child witness is not an easy task
and fraught with various difficulties, some of which are being enumerated
herein under:-
A court operates in an atmosphere which is intended to be imposing. It
is an atmosphere which is foreign to a child. The child has to testify in the
presence of accused person and other strangers including the presiding
judicial officer, the counsel of the accused, the prosecutor and court officials.
The testimony of child is recorded in an atmosphere which is probably
bewildering and frightening to the child. Unless appropriately adapted to a
child, the effect of the courtroom atmosphere on the child may be to reduce
the child to a state of terrified silence. Instances of children who have been so
frightened by being introduced into the alien atmosphere of the courtroom
they refuse to say anything are not unknown.
The child is required to give evidence in the presence of the accused.
The accused will be a few paces from the child, and will invariably be staring
at the child while the child gives evidence. This scares the child to no lengths
and he often thinks that he would be punished for speaking the truth. In fact,
children worry about seeking the accused again. The research shows that this
is the most common and intense court-related worry among testifying
children.
Children worry about not being believed while testifying, especially the
children who are victims of sexual abuse. The research on children who are
victims of sexual abuse shows that fear of disbelief is a major impediment to
disclosure by children. Children assume that the word of an adult will always
be taken over the word of a child.
Children worry about people finding about the offence while testifying.
A courtroom is a public place and few witnesses relish the public exposure
that testifying entails. Children are no different.
Children worry about getting yelled at, getting into trouble or being
hurt while testifying.
Children worry about getting their facts mixed up or forgetting things
while testifying.
Children may be afraid or embarrassed to say what happened. The
content of a child’s testimony may involve something the child is reluctant to
say out loud, perhaps because it involves body parts, sexual acts or the need
to repeat rude words or bad language someone said to them.
Children worry about repercussions and retaliation by or against their
family while testifying. It is normal for witnesses to worry about retaliation
for testifying. Children are no different, except they might feel more
vulnerable than an adult would.
Since children see the world differently from adults, some details which
may appear to be important to adults like time and place may be missing from
the recollection of children.
Children see adults as authority figures and will therefore accede to
what they say to them.
Young children can be susceptible under specific conditions. These
include: when they are asked about personal events that happened a
substantial period of time age, with no ‘refresher’ interview in the interim;
when they are questioned by a biased interviewer who pursues a hypothesis
single-mindedly.
Very young children (those aged between three and under) have
difficulty understanding that scale models can represent real objects and are
confused about their bodies that require them to represent touching on
anatomical bodies.
Children can assign different meanings to words than those generally
understood by adults. For example, ‘touch’ often means only by hand to the
children. ‘Private part’ often means anything under clothing to the children.
Children often use words without knowing what they mean or have
different understanding from adults as to meaning of a word. For example, a
child could use the word ‘glue’ to mean semen.
Some concepts are developmentally difficult for children to understand
such as ‘behind’, ‘in front of’, ‘above’, ‘beneath’ etc.
Children are reluctant to relate their sad and often sordid experiences to
several different people. As a result, repetition tends to heighten the sense of
shame and guilt of children as to what happened to them.
Children have special difficulty in identifying the source of their
beliefs, so if false information is introduced, they will confuse it with the
event.
It is not only cognitive abilities, memory and social and emotional
factors that affect children’s abilities to give detailed and reliable statements
that can be used in child abuse prosecutions. Their ability to understand and
interpret the questions put to them is also crucial.
50.
Over the years, much research has been done into children’s linguistic
abilities and understanding, and a number of very important points may be
distilled from research, some of which are being enumerated herein under:-
Young children are very literal in use of language, so it is essential to
find out what they mean when they use words and not to assume that they
have the same meaning as an adult would give them.
It takes children longer to process words, so it is essential to give them
time to think and respond to the question; passing during questioning can be
very productive.
Children will not say they do not understand, whether because they do
not realize that they do not understand or because they do not want to show
ignorance; they may not be aware that this is an option.
Use one question for each idea and start the question with the main
idea. For example, ask children ‘did the bell ring when you were eating?’
rather than asking ‘when you were eating, did the bell ring?’
Avoid jumping from one topic to another while questioning the
children.
Do not use word ‘any’ (anything, anyone, anywhere) as these are not
specific and will tend to generate the answer ‘no’; a very young child will not
know what ‘anyone’ means and if asked ‘did you see anyone’ will answer
‘no’. Instead ask ‘who did you see?’ or ‘did you see X?’
Avoid using ‘different’ or ‘the same’ while questioning children:
asking a child ‘was it same as this?’ is confusing for the child; by age five or
six, children may be able to distinguish between ‘the same’ toy – meaning the
actual one they played with – and a similar one, but it may take several more
years to appreciate that things generally similar are regarded by adults as
different.
The word ‘inside’ is problematic for children: in sex abuse cases
involving suspected penetration, a child may need to be asked if an object was
inserted ‘inside’ an orifice and could also be asked how far; this is fraught
with difficulties; it is essential to find out what the child understands by
‘inside’. (For example, anything between the legs could be perceived as inside
by the child) and the question needs to be asked in an age-appropriate way.
Avoid using either/or questions: adults recognize that neither choice
may be accurate; this is difficult for children to do;
How/why questions: in relation to ‘why’, this is seen by a child as
requiring the child to defend herself to justify why something happened;
‘why’ also requires a child to be able to look at motivations, reasoning from
effect back to cause, which children cannot do until about ages 7 to 10.
‘How?’ may require memory of concepts; ‘how many times did that happen?’
may require ability to recognize intention and flow of events; instead of
asking ‘how did he do that?’ ask ‘what did he do?’ ‘Show me what he did?’
Leading questions are confusing for children and result in children
giving incorrect responses.
Pronouns (he, she, they) confuse children. It is better to name the
person being talked about or to ask the child to do so.
(The aforesaid points have been compiled from various materials available on
the internet regarding interviewing/questioning of a child witness).
51.
In this regard, we note an article/paper titled as „Child Witness
Competency: When Should the Issue be Raised‟ written by Ms.Sherrie Bourg
Carter, a renowned Psychologist in U.S.A. The author (Ms.Sherrie Bourg
Carter) notes that the Courts should test following parameters while assessing
the competence to testify of a child witness:-
“*Adequate intelligence and memory to store information.
* The ability to observe, recall, and communicate information.
* An awareness of the difference between truth and a lie.
* An appreciation of the meaning of an oath to tell the truth.
* An understanding of the potential consequences of not telling
the truth.”
52.
Guidance on the nature of questions which could facilitate a fair
evaluation of the child’s competency is also found in said article/paper.
Some questions which have been suggested by Sherrie Bourg Carter for
enabling the judges to determine the competency of the child include the
following:-
“I. For determining Intelligence and Memory-For a young
child, questions about family, school, counting, and knowledge
of the alphabet and colours can provide sense of the child‟s
intelligence and memory. With older children, more difficult
intellectual skills determining their literacy level would provide
information about their intelligence and memory.
II. Ability to Observe, Recall and Communicate-Examples of
recent experiences about which child can be questioned should
include what the child ate or who the child saw that day. An
example of the distant past events should include what
happened say on the child‟s birthday or memorable holiday or
a field trip or a vacation. Further questioning could be about
attended, and what gifts were received. (Of course, these
questions are required to be put keeping in view the socio-
economic background and literacy of the child, especially in
our country).
III. Understanding of Truth and Lie-To assess a child‟s
understanding of these concepts, questions about right and
wrong, real and make-believe, truth and lie typically are
asked.”
It is important to recognize that some types of questions are
more developmentally appropriate than others. For example,
when assessing children‟s understanding of these dichotomies,
interviewers routinely ask children if they know the difference
between them. However, asking children to explain the
difference between two concepts is a more developmentally
difficult task than asking what each concept means. In other
words, questions such as, "What does it mean to tell the truth?"
and "What does it mean to tell a lie?" are more
developmentally appropriate for young children than asking,
"What is the difference between the truth and a lie?
It also is important to recognize that very young children often
are unable to answer even these easier questions in a narrative
form due to their underdeveloped language skills. In one study,
researchers found that none of the four-year-olds in their
sample were able to define either truth or lie whereas 87.5% of
the eight-year-olds were able to define both concepts (Michelle
Aldridge & Joanne Wood, Interviewing Children: A Guide for
Child Care and Forensic Practitioners, 1998). This does not
necessarily mean that four-year-olds do not understand the
meaning of truth and lies. It also does not mean that the open-
ended questions should not be asked. Some developmentally
advanced children may be able to answer in a narrative form,
but if not, there are acceptable alternative questions to help
determine if and how much a child understands these concepts.
For example, young children usually have an easier time
answering multiple-choice questions, such as "If I said my hair
is brown, is that the truth or a lie?" In fact, it is quite common
for interviewers or legal professionals to ask several of these
basic questions. While there is nothing wrong with doing this,
such questions really are not sufficient for several reasons.
First, although most children can correctly answer these types
of basic questions, they do not provide an answer to the real
question of whether the child understands what it means to tell
the truth and what it means to tell a lie. While they may be
appropriate preliminary questions; the standard "If I said my
hair is brown..." type of questions mostly establishes whether a
child knows his or her colours and can provide a correct or
incorrect answer. Secondly, such questions do not place
children in scenarios similar to what judges are ultimately
considering when determining witness competency. The
pertinent question is whether a child who is placed in a
particular situation (the courtroom) and asked questions about
an event they either witnessed or experienced (the alleged
incident) can distinguish what is the truth and what is a lie.
Therefore, in addition to the relatively simple questions, more
situationally relevant questions should be asked when assessing
a child‟s competency to testify, such as:
* If I told your mom that you just yelled at me, would that be
the truth or a lie?
* If you told your mom that I hit you, would that be the truth or
a lie?
* If you told your teacher that something bad happened to you,
but it really didn't happen-you were making it up-would you be
telling the truth or a lie?
Competent children should be able to consistently provide
correct answers to these multiple-choice questions.
IV. Meaning of Taking an Oath-
Children usually are not familiar with the word, oath, but most
recognize the word, promise. Because taking an oath and
making a promise are similar concepts, it is more
developmentally appropriate and more productive to ask
children if they know what it means to make a promise.
Furthermore, substituting the word, promise, for the word,
oath, when swearing in child witnesses has become
increasingly more common and accepted throughout the legal
system (Task Force on Child Witnesses, American Bar
Association Criminal Justice Section, The Child Witness in
Legal Cases, 2002).
Still, as with other open-ended, definition-type questions, young
children may not be able to readily answer the question, "What
does it mean to make a promise? If this is the case, follow-up
questions also should be asked to better assess the child‟s
appreciation, such as:
* If you promise your mom that you are going to eat your
lunch, what should you do? and „Why?‟
* If you promise to tell the truth today, what should you do?
and „Why?‟
Children also should be asked what might happen, both to the
child and the person being lied about, if they said something
happened to them and it was not true. Examples of such
questions are:
* When you get caught telling a lie, what usually happens to
you?
* If you said that your classmate hit you and it was not true-you
were making it up-what could happen to you for lying?
* If you said that your sister hit you and it really didn't happen,
but your dad believed you, what could happen to your sister?”
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered on: October 13, 2014
CRL.A. 1190/2014
STATE V SUJEET KUMAR
