In this series, I have been discussing considerations that come into play when we need to depose children. The final, and for many lawyers the most frightening, issue in deposing children is how to ask questions of children. Like many tasks, it is more frightening than difficult. Fortunately, many other people have faced this same problem, and many of them have written some very good manuals.
Guidelines & Protocols
My first recommendation always is to read several of the many good publications about forensic interviewing of children. Not everything in those guidelines will be relevant to your case, and most of them are geared toward sexual abuse investigations, but the guidelines synthesize many years of study and experience about how best to ask children questions about specific events. Some of the publications I recommend are the NICHD Interview Protocol, the APSAC Practice Guidelines on Forensic Interviewing, and the Michigan Forensic Interviewing Protocol.
You May Not Need an Oath
With a very young child, try to get an agreement from opposing counsel about whether or not the court reporter actually has to administer an oath. Most jurisdictions don't require a formal oath for testimony from very young children. Florida, for example, provides that "a child may testify without taking the oath if the court determines the child understands the duty to tell the truth or the duty not to lie." Fla. Stat. Sec. 90.605(2) (2006). See also, State v. Hanson, 149 Wis. 2d 474, 482, 439 N.W.2d 133, 137 (1989) (court may dispense with oath with young child).
If your jurisdiction is one of those, you can simply establish that the child understands his or her obligation to tell the truth. See, e.g., Smallwood v. State, 165 Ga. App. 473, 301 S.E.2d 670 (1983) (four-year-old child's statement that "Jesus don't like it [if] you don't tell the truth" sufficient to establish competency); State v. Avila, 78 Wn. App. 731, 899 P.2d 11 (1995) (five-year-old's description of clothes and objects, and agreement that it was important to tell the truth were sufficient). If you are not certain what questions to ask, call the prosecutor's office in the jurisdiction governing the deposition, and talk to the prosecutor who handles child victim cases.
Note, however, that all of the law I've found deals with testimony in court and speaks in terms of the judge's discretion. In a deposition, without a judge to make a ruling then and there, you need to have agreement of opposing counsel about how you proceed to establish the child's competency as a witness.
At the beginning of the deposition, spend some time just chatting with the child. Ask about things that interest him or her, and try to set them at ease before getting into specific questions. The protocols I listed above have some very good pattern questions.
Keep It Simple
Be sure to ask simple questions using simple words. When children don't understand a question, they have a tendency to just agree with the adult. If your question is too complicated or above the child's comprehension, you are not likely to get an accurate (or even understandable) answer.
Understand Their Vocabulary
If the child is very young, do some research on cognitive and communication skills at various ages. Preschool children think concretely, and therefore use nouns instead of adjectives or adverbs. For example, a child who talks about a knife may mean "painful." A child who does not have the vocabulary to describe pain will reach for a concrete object within his or her knowledge.
Let Them Play
If the child is preteen or younger, bring an art pad and crayons or markers with you. Children lack an adult's vocabulary, and sometimes run out of words. They are more at home with concrete objects, and sometimes can explain themselves better through drawings. Get them to draw the scene, and then describe it to you. It is simple enough to make the drawing an exhibit to the transcript, and you are much more likely to obtain good information.
For very young children, bring toys with you to represent the events you are asking about. Toy cars and trucks, for example, would help a child tell about a car accident. Be sure to have enough miniature people to represent the people involved in the events.
Narrow Your Focus
Children have short attention spans, so you cannot ask all of the questions that you might have. Prioritize what you want to know, and don’t take a long time to get there. When they are done answering questions, they are done, and no amount of questioning will get you any more information.
On the other hand, be patient. Children do not always think in a straight line, and sometimes you will be asking about painful topics that they would prefer to avoid. You may have to ask different questions or get the information in different ways. You almost certainly will have to redirect their attention at some point. Do not expect a child to enter your world. You will have to enter their world, and try to understand how they think.
Perhaps the most important rule is to ask open-ended questions. A study from Australia illustrates the science showing that asking children open-ended questions is the best way to get the information that they have. Researchers studied 83 children in Australia, from ages 7-12. The study noted earlier evidence that closed questions, especially yes-no or multiple choice, prompt children to guess at the “correct” answer. Closed questions also can signal the child what information the interviewer is seeking.
The focus of this particular study was the children’s views of the different questioning techniques. Although the results were varied on which technique children preferred, most of the children agreed that the open questions elicited more information and left the children feeling more that they had been heard rather than ignored. The open-ended interviews also elicited more than 3 times the information received in the closed interviews, and the responses were significantly more accurate.
Deposing children is a specialized skill, but not a difficult one to master. Any lawyer with a bit of patience and creativity can learn the protocols and how to put a child at ease. Then you will be able to get the information that they have and, as with all witnesses, figure out how it fits into your case.