Developmental Review 32 (2012) 181–204

Contents lists available at SciVerse ScienceDirect

Developmental Review
journal homepage: www.elsevier.com/locate/dr

Disorder in the courtroom? Child witnesses under

cross-examination
Rachel Zajac a,⇑, Sarah O’Neill b, Harlene Hayne a
a
Psychology Department, University of Otago, New Zealand
b
Psychology Department, Queens College, CUNY, NY, USA

a r t i c l e i n f o a b s t r a c t

Article history: When a witness gives evidence in an adversarial criminal trial,

Available online 21 July 2012 there are two main questioning phases: direct examination and
cross-examination. Special provisions are sometimes made for
Keywords: children to give direct evidence, but the majority of child witnesses
Cross-examination
are still cross-examined. While several decades of research have
Child witnesses
demonstrated how to elicit children’s direct evidence in a manner
Children’s testimony
Suggestibility that promotes completeness and accuracy, the cross-examination
process directly violates many of these principles. Here, we outline
the characteristics of cross-examination, particularly as it pertains
to children, and we review research about its impact on children,
their testimony, and their credibility. We consider options for
reforming the cross-examination process and propose avenues
for future research.
Ó 2012 Elsevier Inc. All rights reserved.

Introduction

Under an adversarial legal system, any witness’s evidence is subject to scrutiny from the opposing
lawyer in a process known as cross-examination. Cross-examination was designed to serve two main
functions: (1) to elicit favorable evidence by having the witness agree with facts supporting the cross-
examining lawyer’s case and (2) to weaken the opposing side’s case by discrediting unfavorable evi-
dence or the person who provided it (Eichelbaum, 1989; Hampton & Wild, 2000; Salhany, 1999).
Cross-examination is considered to be an important part of the criminal justice system; in fact, many
experts have argued that it is the primary means by which the truth in any case emerges (Wellman,

⇑ Corresponding author. Address: Psychology Department, University of Otago, P O Box 56, Dunedin, New Zealand. Fax: +64 3
479 8335.
E-mail address: [email protected] (R. Zajac).

0273-2297/$ - see front matter Ó 2012 Elsevier Inc. All rights reserved.
http://dx.doi.org/10.1016/j.dr.2012.06.006
182 R. Zajac et al. / Developmental Review 32 (2012) 181–204

1986; Wigmore, 1974). Although many of the characteristics of cross-examination of adults and chil-
dren are similar, here we focus on child witnesses.

Cross-examination and the child witness

Over the past three decades, widespread concern has been raised about children’s ability to cope
with a legal system that was designed by adults, for adults (Pipe & Henaghan, 1996). For example, re-
search suggests that children’s experiences within the criminal justice system can have marked and
prolonged negative effects on their education, mental health, and beliefs about re-engaging with
the legal process (Eastwood & Patton, 2002; Eastwood, Patton, & Stacy, 2000; Goodman et al., 1992;
Prior, Glaser, & Lynch, 1997). In fact, many child complainants of sexual offences who have testified
in court are so unsettled by the adversarial process that they say they would not report being a victim
again (Eastwood & Patton, 2002; Prior et al., 1997). Likewise, parents of child complainants have in-
sisted that they would not put their children through the legal process again, and would advise other
parents against it (Alaggia, Lambert, & Regehr, 2009; Eastwood & Patton, 2002). Even legal profession-
als generally consider the legal process to be traumatic for children (Cashmore & Bussey, 1996; East-
wood & Patton, 2002; Powell, Wright, & Hughes-Scholes, 2011), and would not want their own
children to participate in it (Eastwood & Patton, 2002).
In response to these concerns, many jurisdictions have implemented reforms in an attempt to ren-
der the adversarial process more child-friendly. These reforms have included removing corroboration
requirements, removing judicial warnings about the unreliability of children’s testimony, reducing
trial delays, allowing the use of support people, allowing children to take a simplified oath, and per-
mitting children to testify via special measures such as closed-circuit TV or from behind a screen (Bala,
1999; Pipe & Henaghan, 1996; Westcott & Jones, 1999; Whitcomb, 2003).
Despite these changes, many experts still believe that some aspects of the adult judicial system
continue to pose a considerable obstacle to children participating fully in the courtroom. Although
there have been attempts to make direct-examination procedures more developmentally appropriate
for children, there have been no changes to the process of cross-examination. There is little doubt that
being cross-examined is not a pleasant process for any witness. Even expert witnesses and police offi-
cers find the process of being cross-examined stressful and confusing (Flin, 1993); considerable mate-
rial has been written to assist experts to respond to cross-examination questions calmly and with
confidence (e.g., Brodsky, 2004). Children, however, are likely to find the challenges that cross-exam-
ining lawyers pose to their accuracy, credibility, and motivation particularly disconcerting, because
this type of verbal exchange goes well beyond their conversational experience (Donaldson, 1982;
Lyon, 2002). Indeed, most child complainants describe cross-examination as very distressing (East-
wood & Patton, 2002; Prior et al., 1997); many cite cross-examination and the behavior of defense
lawyers1 as the most frightening aspects of the trial (Eastwood & Patton, 2002; Eastwood et al., 2000;
Prior et al., 1997; but see Wade, 2002, for more moderate views from non-complainant witnesses).
The kinds of questions that are asked during cross-examination differ markedly from those used
during other components of the legal process (Davies, Henderson, & Seymour, 1997; Zajac & Cannan,
2009; Zajac, Gross, & Hayne, 2003; see Table 1 for examples). They also differ markedly from ‘‘best
practice’’ guidelines for questioning children (e.g., American Professional Society on the Abuse of Chil-
dren, 1990, 1997; Home Office, 1992, 2002). In fact, cross-examination has been described as a ‘‘how
not to’’ guide to asking children questions (Henderson, 2002, p. 279).

Questions that challenge credibility

One goal of cross-examination is to weaken the opposing lawyer’s case by discrediting unfavorable
evidence, or the witness who provided it. There are a number of ways that this might be achieved.

1
While we acknowledge that child witnesses can be called to give evidence for the defense (e.g., as alibi witnesses), the
vastmajority appear for the prosecution, most often as complainants. For this reason, throughout this review, we refer to
defenselawyers conducting cross-examination.
 R. Zajac et al. / Developmental Review 32 (2012) 181–204 183

Table 1
Examples of cross-examination questions posed to children in Zajac et al. (2003) and Zajac and Cannan (2009).

Question Type Examples

Credibility Challenges
Poor Eyewitness Ability It would have been pretty dark, was it? It would have been hard to see his face?
And you’re sure that this isn’t just an accident; that maybe once when he’s held your
hand you’ve accidentally touched his penis?
Have any of those people helped you remember what [accused] did?
Dishonesty When you were at [mother’s friend’s] house and the dirty movie was on, why didn’t
you tell [mother’s friend] that night what happened?
He’s going to say that he has never put your hand on his penis; that he wouldn’t do
that sort of thing to you. Now, wouldn’t he be telling the truth?
He didn’t really touch your private parts at the camp, did he?
Leading/Suggestive Questions You never got into the front seat at any stage, did you?
Have Mum and Dad been telling you how bad [accused] is?
And you kids yelled at him, do you remember that?

Complex Questions
Complex Grammar/Jargon Is that the lady who you told about [accused] touching you?
And if you say that you didn’t say these things, would you be telling the truth?
You’ve suggested in relation to the incident in May that you were bringing [accused] a
cup of tea?
Ambiguity/Sense So neither of your brothers weren’t there?
That night after you told Mum about [accused] and before you made the videotape at
the police station, do you remember whether you went to school the next day?
So he could have just about seen you where you were across the road through the
window when he backed in?
Specificity/Measurement How long after [accused] waking you up did the police arrive, do you remember, can
you estimate the time?
What kind of day was it? How cold?
If I suggested to you that you were there for about an hour, would that be right do you
think?

Accusations of poor eyewitness ability

One way that defense lawyers challenge children’s testimony is by challenging their perceptions or
understanding of the alleged event, their memory for details of the event, or their ability to commu-
nicate their recollections to the court (Eichelbaum, 1989). For example, the lawyer might imply that
the witness could not have observed the event in the way it was originally recounted (Hampton &
Wild, 2000). In one study conducted by Davies et al. (1997), for example, the researchers examined
court transcripts in which 26 children gave evidence in cases of alleged sexual abuse. In over one third
of these transcripts, lawyers accused children of having mistaken the identity of their alleged abuser.
In one transcript, for example, the defense lawyer suggested that the child could not have seen the
offender’s face due to poor lighting in the room. The strength of a child’s memory for the alleged event
may also be questioned during cross-examination (Brennan & Brennan, 1988; Hampton & Wild, 2000)
by highlighting the delay between the alleged event and a child’s disclosure (Elliot & Briere, 1994; Lon-
don, Bruck, Ceci, & Shuman, 2005; London, Bruck, Wright, & Ceci, 2008) or between the disclosure and
the trial (Eastwood & Patton, 2002; Goodman et al., 1992; Martone, Jaudes, & Cavins, 1996; Prior et al.,
1997; Westcott & Page, 2002). During cross-examination, lawyers also challenge children’s credibility
by highlighting inconsistencies in their testimony (Davies et al., 1997).
During cross-examination, lawyers also attempt to discredit children’s evidence by emphasizing
their potential for suggestibility (Davies et al., 1997; Salhany, 1999). Because children are questioned
– formally and informally – many times during the legal process (Goodman et al., 1992; Runyan,
Hunter, Everson, Whitcomb, & De Vos, 1994; Tedesco & Schnell, 1987), defense lawyers might argue
that children’s allegations against the defendant are the product of suggestive questioning by parents
and professionals rather than an accurate account of an actual event (Davies et al., 1997; Salhany,
1999).
184 R. Zajac et al. / Developmental Review 32 (2012) 181–204

Accusations of dishonesty
During cross-examination, a lawyer might also directly challenge the child’s honesty by attacking
his or her character or by portraying him or her in a negative light (Eichelbaum, 1989; Westcott &
Page, 2002). A lawyer might try to argue that the child has some bias or motive for making an allega-
tion (Brennan & Brennan, 1988; Davies et al., 1997; Eichelbaum, 1989). For example, in 65% of the
transcripts reviewed by Davies et al., 1997, the cross-examining lawyer suggested that the child
had an ulterior motive for alleging sexual abuse; the primary motive put forward was to gain revenge
on a person whom the child did not like. Attention-seeking and deflecting attention from one’s own
inappropriate behavior were also raised as possible reasons why a child would erroneously allege
abuse. For example, Westcott and Page (2002) report the case of a 14-year-old girl who was accused
during cross-examination of making a false abuse allegation to cover up rebellious behavior such as
smoking, breaking curfew, and unsanctioned interactions with males.
A lawyer might also describe prior episodes of dishonest conduct, or suggest that the witness’s gen-
eral character is untrustworthy. Many children who undergo cross-examination are directly – and of-
ten repeatedly – accused of lying (Brennan & Brennan, 1988; Davies et al., 1997; Eastwood et al., 2000;
Hanna, Davies, Henderson, Crothers, & Rotherham, 2010; Westcott & Page, 2002). It is also common
for lawyers to suggest that a child’s behavior during the alleged abuse (e.g., absence of protest) and
the disclosure of the abuse (e.g., delay in disclosure) is incongruent with behavior that might be con-
sidered ‘‘appropriate’’ or ‘‘expected’’ in such situations (Davies et al., 1997; Eastwood & Patton, 2002;
Westcott & Page, 2002). These arguments are highly similar to arguments commonly used in cases
involving adult rape complainants (Krulewitz & Nash, 1979; Lees, 2002; Ong & Ward, 1999).

Leading and suggestive questions

In addition to challenging their honesty, motives, and credibility, cross-examining lawyers also ask
specific kinds of questions that might pose particular problems for children. While open-ended ques-
tions (e.g., ‘‘can you tell me everything that happened?’’) are associated with a high degree of accuracy
(Cassel, Roebers, & Bjorklund, 1996; Dent & Stephenson, 1979; Lamb & Fauchier, 2001; Orbach &
Lamb, 2001; Poole & Lindsay, 1995; Quas & Schaaf, 2002) and have therefore emerged as the ‘‘gold
standard’’ for interviewing children, these types of questions have been described as ‘‘disastrous’’ dur-
ing cross-examination (e.g., Eichelbaum, 1989, p. 204) because they allow the witness to provide
information that could harm the cross-examining lawyer’s case. Instead, because the primary goal
of cross-examination is to control the dialogue with the witness (Eichelbaum, 1989; Henderson,
2002; Salhany, 1999; Wellman, 1986; Westcott & Page, 2002), the bulk of the questions that are asked
are leading (Stone, 1998); that is, they suggest a desired response (Brennan & Brennan, 1988; Hanna
et al., 2010; Zajac & Cannan, 2009; Zajac et al., 2003).

Complex questions

The kinds of questions that children are asked during cross-examination are often linguistically
complex. On the broadest level, cross-examining lawyers often jump from topic to topic without
warning so that the witness is unaware of the line of questioning (Hanna et al., 2010; Zajac et al.,
2003). This technique is specifically designed to be confusing; legal text books recommend that, to as-
sist in comprehension and recall, lawyers address topics with their own witnesses in a logical and
chronological order, but they are encouraged to use indirection when questioning witnesses from
the opposing side (e.g., Eichelbaum, 1989; Stone, 1998).
Cross-examination questions are also characterized by complex grammatical structures, including
multifaceted questions, negative rhetorical questions, and embedded clauses (e.g., Brennan, 1995;
Brennan & Brennan, 1988). These questions are often difficult for adults to follow, but they may be
completely incomprehensible to a child whose language skills are still developing. Cross-examination
questions may even be objectively ambiguous or nonsensical (Zajac et al., 2003). In turn, children will
often attempt to answer a nonsensical question (Hughes & Grieve, 1980), even when they recognize
that the question is ‘‘silly’’ (Waterman, Blades, & Spencer, 2000); they are particularly likely to do
 R. Zajac et al. / Developmental Review 32 (2012) 181–204 185

so when questions require only a yes or no answer (Waterman et al., 2000), as is typical during cross-
examination.
Finally, cross-examination questions often request highly specific information about the alleged
event or perpetrator (Eichelbaum, 1989). For example, children are often asked questions about time,
frequency, duration, directions, and measurement (Davies et al., 1997; Saywitz, Nathanson, & Snyder,
1993; Walker, 1993). These questions are often beyond children’s developmental reach (Bala, 1999;
Friedman, 1982; Saywitz et al., 1993). Developmental differences in memory are also likely to make
recall of specific details difficult for children. Children tend to focus on (and therefore remember) dif-
ferent information about an event than do adults (Nelson, 1989; Reese, 1999). Furthermore, peripheral
details are less likely to be encoded and are more susceptible to suggestion than central information
(Cassel & Bjorklund, 1995; Coxon & Valentine, 1997).

How do children respond to cross-examination questions?

How do children respond to cross-examination questions? One way that researchers have at-
tempted to understand how children perform under cross-examination is by examining children’s
ability to comprehend the types of questions that are typically posed. For example, Brennan and Bren-
nan (1988), analyzed over 5000 questions from court transcripts of child sexual abuse complainants,
and asked children of the same age to repeat individual questions verbatim. Children’s performance on
this task was compared to their ability to reproduce questions created by teachers and counselors.
Children’s ability to reproduce the cross-examination questions so that the questions maintained their
original meaning was lower than their ability to do so for the two other question types. In fact, chil-
dren were most likely to repeat the cross-examination questions in a manner that made no sense
whatsoever. Some attempts to repeat cross-examination questions resulted in questions that were
semantically and syntactically correct, but were altered in terms of meaning.
In a similar study, Perry and colleagues (Perry et al., 1995) showed children and adolescents a short
video and then interviewed them about it with questions phrased in either ‘lawyerese’ (i.e., questions
containing negatives, double negatives, multiple parts, difficult vocabulary, or complex syntax) or in a
simplified form. Consistent with Brennan and Brennan (1988), children under 10 years of age found it
very difficult to replicate ‘lawyerese’ questions verbatim. Furthermore, while 5–7-year-olds found it
difficult to retain the meaning of either simple or complex questions, the 9- and 10-year-olds were
more likely to retain the meaning of simple questions than complex questions. Interestingly, over
90% of children correctly identified whether or not they had understood simple questions, but when
participants believed that they had understood the questions in ‘lawyerese’ form, only 54% of partic-
ipants were correct, indicating that children do not necessarily know when they have misunderstood
what they are being asked (Markham, 1977).
In other studies, researchers have used court transcripts to ascertain how actual child witnesses
respond to cross-examination. For example, Zajac et al. (2003) examined transcripts in which 5–13-
year-old sexual abuse complainants gave evidence. In the cases that were examined, children under-
going cross-examination seldom requested clarification, often answered questions that were ambigu-
ous or didn’t make sense, and showed high rates of compliance with leading questions. Notably, 75% of
the children changed at least one aspect of their testimony during cross-examination; many made
considerably more than one change, and some retracted their allegations altogether. Many of the
changes that children made were preceded by a leading question that challenged the child’s credibility
(e.g., ‘‘but that’s not really what happened, is it?’’). Zajac and Cannan (2009) obtained very similar
findings.

The Effect of cross-examination on the accuracy of children’s reports

One reason that cross-examination continues to play such an important role in criminal trials with
both children and adults is that many members of the legal profession firmly believe that cross-exam-
ination is a vital means of ascertaining the truth; many also firmly believe that cross-examination will
186 R. Zajac et al. / Developmental Review 32 (2012) 181–204

not pose any problems for a witness who is telling the truth (Eichelbaum, 1989; Salhany, 1999; Well-
man, 1986; Wigmore, 1974). But is this actually the case?
A number of laboratory studies have now cast doubt on the assumption that cross-examination
leads to more accurate accounts from children. In the first study of this kind, Turtle and Wells
(1988) asked 8- and 12-year-old children and adults to watch a film clip of a simulated child abduc-
tion. The next day, each participant was asked 10 direct examination and 10 cross-examination ques-
tions about the film. Participants in all age groups were less accurate in response to the cross-
examination questions than in response to direct examination questions. The 8-year-olds’ overall
accuracy rate (41%) was lower than that of the adults and the 12-year-olds (61% and 65%, respec-
tively), although this difference only reached marginal levels of significance. Turtle and Wells’ findings
came as little surprise to many researchers, who had long suspected that cross-examination could ex-
ert a detrimental effect on children’s accuracy. Because the authors did not provide any detail about
the questions that were asked of their participants, however, it is impossible to assess whether their
cross-examination questions were an accurate reflection of courtroom questioning.
More recently, researchers have used court transcripts to develop a standardized laboratory ana-
logue of cross-examination. In the first study of this kind, Zajac and Hayne (2003a) took 5- and 6-
year-old children on a surprise trip to the police station and then interviewed them twice about their
experiences. The first interview, a basic analogue of direct examination, took place 6 weeks after the
event. This interview consisted of a free recall phase followed by four yes-no questions. Consistent
with legal processes in numerous jurisdictions around the world, where an early forensic interview
is videotaped and later used in place of direct evidence in court, this interview was videotaped. Eight
months later, the children were shown their videotaped direct examination interview and were then
interviewed with an analogue of cross-examination. The aim of the cross-examination interview was
to talk children out of their direct examination responses to the four yes-no questions, irrespective of
accuracy. To do this, the interviewer asked four sets of questions; one for each response. In each ques-
tion set, the cross-examining interviewer first confirmed the child’s direct examination response (e.g.,
‘‘In the video, you said that you got to try on handcuffs, didn’t you?’’), and then asked a series of rel-
evant and irrelevant questions, many of which were leading, complex, multi-part, ambiguous, or non-
sensical (e.g., ‘‘The handcuffs would have been pretty heavy, were they?’’). Next, the interviewer
presented the child with a reason for disbelieving the child’s earlier response (e.g., ‘‘I don’t think that
you did get to try on handcuffs. I think someone just told you to say that. That’s what really happened,
isn’t it?’’). Several reasons for disbelief were used; most of these were taken directly from court tran-
scripts, while some were based on statements that adults often make when challenging children.
The primary dependent measures in the Zajac and Hayne (2003a) study were whether or not chil-
dren changed their original responses, and whether any changes that they made were directed to-
wards or away from the truth. As in the courtroom (Zajac et al., 2003), the vast majority of the
children (85%) changed at least one aspect of their earlier reports under cross-examination. In fact,
33% of children changed all of their previous responses. Moreover, these changes were by no means
limited to correcting earlier mistakes. In fact, children were just as likely to change a correct response
as they were to correct an error. Overall, cross-examination questioning was detrimental to children’s
accuracy; in fact, the accuracy of children’s cross-examination responses did not differ significantly
from chance (50%). This finding held even when only considering the large number of children whose
initial reports were 100% accurate.
Since the Zajac and Hayne (2003a) study, researchers have turned their attention to exploring the
factors that influence children’s responses to this unique style of questioning. Some of these are fac-
tors over which the legal system has little or no control, but which could help to identify children who
might be particularly vulnerable to cross-examination’s negative effects. Others are procedural factors
that could help us to generate more developmentally appropriate guidelines and practices for cross-
examination.

Age

While children as young as 2 or 3 years old have been known to testify as witnesses in the criminal
justice system, most child witnesses are considerably older (Goodman et al., 1992; Hanna et al., 2010;
 R. Zajac et al. / Developmental Review 32 (2012) 181–204 187

Plotnikoff & Woolfson, 1995). In fact, the 5- and 6-year-old children who participated in Zajac and Hay-
ne’s (2003a) original study represent the younger extreme of the typical child witness population. Given
this, how might older children answer the kinds of questions that are commonly posed during cross-
examination? To answer this question, Zajac and Hayne’s (2003a) study was repeated with a sample
of 9- and 10-year-old children. Their performance differed from that of the 5- and 6-year-olds in several
ways. First, the older children, made fewer changes during cross-examination than did the younger chil-
dren. Second, unlike the younger children, the older children were more likely to change an incorrect
answer than a correct one. These age-related improvements might reflect the development of skills that
help children to accurately remember and report past events (e.g., language skills, Bohannon & Stan-
owicz, 1988; Valian, 2006; theory of mind, Antonietti, Liverta-Sempio, Marchetti, & Astington, 2006; Eis-
bach, 2004; the ability to learn new concepts, Schneider & Pressley, 1989) or resist social pressure (e.g.,
an appreciation that adults can be deceptive in conversation; Demorest, Meyer, Phelps, Gardner, & Win-
ner, 1984). Despite age-related improvements, however, 9- and 10-year-old children’s performance un-
der cross-examination was significantly compromised. Notably, these older children still changed 43%
of their correct responses, leading to a considerable decrease in accuracy (Zajac & Hayne, 2006).

Individual differences

Although we know that eyewitness accuracy depends largely on the way in which evidence is solic-
ited, individual children’s responses to forensic questioning still vary even when these external factors
are held constant (see Bruck & Melnyk, 2004, for a review). Understanding some of the individual dif-
ferences that might influence children’s responses to cross-examination questioning is therefore cru-
cial, so that we can identify children who might be particularly vulnerable during cross-examination.
In one study designed to assess the effect of individual differences in children’s response to cross-
examination questions, Zajac, Jury, and O’Neill (2009) examined the role of several psychosocial vari-
ables on 5- and 6-year-old children’s cross-examination performance. Although cross-examination
questioning was detrimental to accuracy in almost all participants, children with low levels of tea-
cher-rated self-esteem, self-confidence, and assertiveness performed particularly poorly. Given that
children who have experienced abuse also tend to obtain low scores on these types of measures (How-
ing, Wodarski, Kurtz, & Gaudin, 1990; Kaufman & Cicchetti, 1989; Martin & Beezley, 1977; Oates, For-
est, & Peacock, 1985), these findings raise a concerning possibility: that the same factors that could
make children targets for abuse, or may be the consequences of it, could also make children particu-
larly vulnerable in the courtroom.
Preliminary research examining the effect of individual differences in cognitive ability (i.e., IQ, mem-
ory, and language ability) indicates that, within the normal range of functioning, these variables contrib-
ute little to how children respond to cross-examination questions (O’Neill, Jury, & Zajac, submitted for
publication). At this stage, however, we cannot rule out the influence of cognitive variables altogether;
other cognitive processes could influence children’s cross-examination performance. For example,
executive functions such as working memory and inhibitory control could place children at risk for sug-
gestion in the context of highly suggestive interviews (Karpinski & Scullin, 2009), as they are both di-
rectly and indirectly related to children’s suggestibility (Alexander et al., 2002; Karpinski & Scullin,
2009; Roebers & Schneider, 2005; Ruffman, Rustin, Garnham, & Parkin, 2001; Scullin & Bonner, 2006).
Better executive functioning could allow for stronger encoding and retrieval through the suppression
of irrelevant stimuli (Alexander et al., 2002), and/or better ability to inhibit the tendency to agree with
misleading suggestions (Scullin & Bonner, 2006). If executive functioning skills are related to cross-
examination performance, then certain child populations could be particularly vulnerable. Children
with ADHD, for example, are both more likely to exhibit executive functioning deficits (Willcutt, Doyle,
Nigg, Faraone, & Pennington, 2005), and at greater risk of abuse/neglect (Briscoe-Smith & Hinshaw,
2006; Rucklidge, Brown, Crawford, & Kaplan, 2006). This is clearly an avenue for future research.

Delay

In most cases, a child witness is cross-examined long after the alleged crime has occurred (East-
wood & Patton, 2002; Goodman et al., 1992; Hanna et al., 2010; Jonker & Swanson, 2007; Lash,
188 R. Zajac et al. / Developmental Review 32 (2012) 181–204

1995; Plotnikoff & Woolfson, 1995). In an attempt to model the effects of delays of this kind, the cross-
examination interview in our original analogue studies occurred 8 months after children’s direct evi-
dence was pre-recorded. In light of research showing that suggestibility increases with delay (e.g.,
Zaragoza & Lane, 1994), however, it was important to consider the possibility that eliminating the de-
lay between direct- and cross-examination might facilitate children’s cross-examination performance.
To test this hypothesis, Righarts, Jack, Hayne, and Zajac (submitted for publication) employed the
same basic paradigm, but cross-examined children either 1–3 days or 8 months after their direct-
examination interview. Despite highly accurate initial reports, children’s performance during cross-
examination was very poor, even when cross-examination took place very soon after the target event.
In fact, children’s cross-examination accuracy scores did not differ as a function of delay. These data
allow us to conclude that cross-examination questioning impairs accuracy even when it is conducted
very soon after the event, before significant forgetting is likely to have taken place. Similarly, Turtle
and Wells (1988) observed a negative effect of cross-examination questioning a mere 24 h after par-
ticipants viewed the film clip.
Of course, delays during criminal investigations are not restricted to those occurring between alle-
gation and trial. Child victims of sexual abuse, for example, may not disclose until many months or
even years after the abuse has occurred (London et al., 2005). It is possible that by conducting our di-
rect examination interviews very soon after the target event, children in our studies have been inoc-
ulated against the impact of delay. In this way, findings using short delays between each phase of the
experimental paradigm might well be considered a best-case scenario of children’s cross-examination
performance. Again, this is an important area for future research.

Question type

Up to this point, the studies that we have reviewed have investigated questioning style as a within-
subjects factor, by comparing children’s accuracy before and after cross-examination. It is important,
however, to consider the possibility that children’s accuracy could decrease regardless of the cross-
examination questions that they were asked. Specifically, because cross-examination is never the first
interview that children undergo, it is important to consider that children interviewed multiple times
can be at risk of a reduction in accuracy simply by virtue of multiple interviews (Ceci, Huffman, Smith,
& Loftus, 1994; Poole & White, 1991; Quas & Schaaf, 2002). To disentangle the effects of a second inter-
view from the effects of the cross-examination questions per se, O’Neill and Zajac (2012) included a
group of children who were not cross-examined, but were merely asked the direct examination ques-
tions again. They also manipulated child age (5–6 years or 9–10 years), and the delay between direct-
and cross-examination (1 week or 6 months). Children’s accuracy decreased irrespective of age or de-
lay, but delay particularly impacted younger children’s performance. Children’s accuracy also de-
creased regardless of the form of the second interview, but the negative impact on accuracy was
several times greater following cross-examination style interviewing. These data allow us to place
responsibility for the negative effect of cross-examination chiefly, but not exclusively, on the typical
types of questions asked.

Subsequent questioning

It is now well established that children make changes to their reports under cross-examination-
style questioning, but what are the effects of these response changes on their subsequent reports?
To answer this question, Righarts, Jack, et al. (submitted for publication) asked children the direct
examination interview questions again 1 week following the cross-examination interview. In an at-
tempt to persuade children to report what they remembered, rather than what they felt was expected
of them, this final interview was conducted by an experimenter who had accompanied children on the
memory event, but had not interviewed them previously. Children’s accuracy returned to pre-cross-
examination levels; the vast majority of response changes made during cross-examination were not
maintained in the final interview. These data suggest that, when children undergoing cross-examina-
tion make response changes that are directed away from the truth, these changes do not necessarily
result in memory impairment (Righarts, Jack, et al., submitted for publication).
 R. Zajac et al. / Developmental Review 32 (2012) 181–204 189

Generalizing from the laboratory to the courtroom

Laboratory studies of cross-examination help us to identify the variables that affect how children
respond to this unique style of questioning. Despite careful attention to study design, however, there
will always be factors that could affect how well experimental findings generalize to the courtroom.

Ecologically valid questioning

The studies conducted by Zajac and her colleagues have involved highly standardized analogues of
the cross-examination process, which were developed based on court transcripts of actual child sexual
abuse trials. While these scripted cross-examination protocols are often necessary to maintain a high
degree of experimental control, especially when additional variables are being manipulated, the asso-
ciations between lawyers’ questions and child witnesses’ responses in the courtroom will be bidirec-
tional; that is, the questions that a lawyer asks will depend on what the child has said, and vice versa.
Crossman, Segovia, and Miller (in preparation) addressed the limitation of highly standardized cross-
examination analogues by having actual lawyers interview their participants as they would interview
real witnesses. Three- to five-year-olds observed an innocuous event, following which an experi-
menter interviewed each child repeatedly and suggestively. Three months later, 12 of these children
underwent unscripted direct- and cross-examination interviews conducted by experienced trial attor-
neys. In many cases, children who had formed false beliefs during the suggestive interviews became
accurate as a result of cross-examination, but the increase in correct information and the decrease in
errors observed during cross-examination did not reach statistical significance.

Traumatic events

Although we must emphasise that not all episodes of abuse are frightening, painful, or otherwise
traumatic for children (Okami, 1991; Schultz & Jones, 1983), children who appear in court as wit-
nesses may often be required to testify about events that have been unpleasant to experience or ob-
serve. To this point, however, cross-examination studies have been largely limited to children
participating in an enjoyable class trip (e.g., O’Neill and Zajac, 2012; Zajac & Hayne, 2003a, 2006; Zajac
et al., 2009) or innocuous classroom-based event (Crossman et al., in preparation). Those that have
used a more forensically relevant – albeit filmed – memory event (simulated child abduction; Turtle
& Wells, 1988) have not set out to address the issue of stress, and have therefore lacked a comparison
condition or relevant individual difference measures that would allow us to investigate any differ-
ences in cross-examination accuracy as a function of stress or trauma at the time of the alleged event.
The fact that experimental findings on children’s memory for stressful events are equivocal (see
Cordon, Pipe, Sayfan, Melinder, & Goodman, 2004; Goodman, Quas, & Ogle, 2010, for reviews) makes
it difficult to determine whether existing cross-examination research using enjoyable or neutral mem-
ory events could be underestimating or overestimating the effect of cross-examination on children’s
accounts of traumatic experiences. What we can say, however, is that children can be pressured into
changing their answers during cross-examination even when they remember the target event very
well (Righarts, Jack, et al., submitted for publication). Additionally, the literature on stress and mem-
ory has focused on children’s memory for stressful experiences, rather than how their memory or sug-
gestibility is affected under stressful recall conditions. The latter issue is particularly relevant to cross-
examination, during which child complainants report high levels of negative emotional arousal (East-
wood & Patton, 2002; Prior et al., 1997).

Repeated events

To date, experimental analogue studies have exclusively examined the impact of cross-examina-
tion questioning on children’s memory for a single event. In many real-world cases, however, children
must provide testimony about events that have happened repeatedly (Davies et al., 1997; Powell &
Thomson, 2002; Prior et al., 1997). For example, 75% of the child complainants interviewed by Prior
190 R. Zajac et al. / Developmental Review 32 (2012) 181–204

et al. (1997) reported having been sexually abused on more than one occasion, while 20 of the 26 child
witnesses interviewed by Davies et al. (1997) alleged that they had been abused on more than three
occasions by the same perpetrator.
Repeated exposure to an event often improves children’s memory for features that are consistent
across each episode (Farrar & Goodman, 1992; Ornstein et al., 1998; Powell, Roberts, Ceci, & Hem-
brooke, 1999). In the courtroom, however, children are often required to particularize – that is, to give
highly specific details about discrete episodes of chronic abuse, including – but not limited to – time,
location, what was said, and descriptions of clothing (Powell & Thomson, 2002; Powell, Thomson, &
Dietze, 1997). Eastwood et al. (2000) give an example of a child complainant who was allegedly
abused repeatedly over a 4-year-period, but was cross-examined about what she was wearing on
one specific day. Questions like this pose difficulty for children because their descriptions of events
tend to be sparse, comprise common elements across the episodes (fixed elements), and lack acknowl-
edgement of details that deviate from what typically happens during the event – so-called variable de-
tails (Farrar & Goodman, 1992; Powell & Thomson, 1996; Powell et al., 1999). As well as being less able
to recall specific or variable details about repeated events, children tend to be more suggestible
regarding these elements (Connolly & Lindsay, 2001; Powell & Thomson, 1996).
Given the research outlined above, we can generate a number of specific hypotheses about how
cross-examination questioning might affect children’s reports about repeated events. First, the closed,
leading nature of cross-examination questions may increase the likelihood of children changing their
responses to questions about repeated events, particularly after a long delay. Second, children may be
somewhat buffered from the negative effects of cross-examination on their recall of details that are
consistent across repeated events, but more at risk for changing their responses to questions about
the episode-specific details that are often crucial in obtaining a conviction. Vulnerabilities in this area
are highly relevant to the courtroom, where cross-examining lawyers often draw attention to chil-
dren’s inability to give consistent accounts of specific details from repeated events (Eichelbaum,
1989; Salhany, 1999).

Secrets and threats

There are several reasons why some children might fail to disclose genuine abuse, even when ques-
tioned about it. They might be keeping a promise, protecting a family member, avoiding embarrass-
ment or punishment, or they might have been threatened with harm if a disclosure is made
(Hartwig & Wilson, 2002; Pipe & Goodman, 1991). Alternatively, one of children’s greatest fears about
the legal process is that they will not be believed (Berliner & Conte, 1995; Flin, Stevenson, & Davies,
1989; Freshwater & Aldridge, 1994), and abusers can exploit this fear to encourage victims to remain
silent (Eastwood et al., 2000). Unfortunately, even when disclosures have been made, any of these fac-
tors could make children vulnerable to retracting information under cross-examination pressure.
In laboratory studies, several factors of particular relevance to cross-examination have been linked
to the concealment of information. Bottoms, Goodman, Schwartz-Kenney, and Thomas (2002), for
example, demonstrated that children would often keep a secret to protect a parental figure. Bribery
and threats are also effective motivations for children to maintain a secret (Bottoms et al., 2002; Bus-
sey, 1992, cited in Pipe & Goodman, 1991). Finally, the presence of the secret-giver during interview-
ing appears to influence whether secrets are concealed or disclosed, at least for older children (Wilson,
Powell, Raju, & Romeo, 2004). While an alleged offender will not be present when children are inter-
viewed in the early stages of the investigation process, his or her presence in the courtroom may make
children more likely to change accurate testimony or retract genuine allegations under cross-exami-
nation. This possibility lends some support to the use of screens or CCTV to shield child witnesses from
the defendant.

Interview length

Child witnesses often report the length of cross-examination to be distressing, with a considerable
number of children testifying for several hours and/or across more than 1 day (Eastwood & Patton,
2002; Goodman et al., 1992; Hanna et al., 2010). In contrast, experimental studies of cross-examina-
 R. Zajac et al. / Developmental Review 32 (2012) 181–204 191

tion have used relatively short questioning protocols. Crossman et al. (in preparation) direct and cross-
examination sessions combined lasted approximately 20 min. Turtle and Wells (1988) asked their par-
ticipants 10 cross-examination questions, while Zajac and colleagues use a protocol that is up to 40
questions in length (O’Neill and Zajac, 2012; Righarts , Jack et al., submitted for publication; Righarts,
O’Neill, et al., submitted for publication; Zajac & Hayne, 2003a, 2006; Zajac et al., 2009). Clearly time
and ethical constraints prevent researchers from interviewing children over an extended time period.
In the real world, however, longer interviews provide greater opportunity for children to become con-
fused and change previous responses. Alternatively, children who find cross-examination aversive
may acquiesce with the lawyer’s suggestions to end the questioning as quickly as possible.

Physical environment

Children’s ability to answer questions in an actual courtroom may differ from their capacity to an-
swer the same questions in a less formal or more familiar setting (Bala, 1999). Indeed, the physical
courtroom environment has been criticized for creating a threatening atmosphere that could hinder
children’s ability to answer questions posed to them (Brennan & Brennan, 1988; Scott, 1994). Research
findings support these concerns: children find the courtroom environment to be stressful, and their
resultant anxiety appears to interfere with their ability to provide complete and accurate recall. Child
witnesses who testify from outside of the courtroom – via closed circuit television – appear to expe-
rience less anxiety than those who testify in open court, as rated by observers (Law Reform Commis-
sion., 1992; Murray, 1995) and the children themselves (Murray, 1995). Children interviewed in a
mock courtroom show higher scores on self-report anxiety measures (Goodman et al., 1998; Saywitz
& Nathanson, 1993) and observer ratings of anxious behavior (Hill & Hill, 1987) than those inter-
viewed in a less formal setting. Furthermore, children interviewed in a courtroom setting tend to
be less accurate when answering misleading and specific questions (Goodman et al., 1998; Nathanson
& Saywitz, 1993; Saywitz & Nathanson, 1993), and display less complete free recall information (Hill &
Hill, 1987; Saywitz & Nathanson, 1993) than those who are not. In Saywitz and Nathanson’s (1993)
study, children’s self-reported stress levels were negatively correlated with free recall accuracy. Sim-
ilarly, Nathanson and Saywitz (1993) showed that heart rate reactivity was negatively correlated with
children’s correct responses to specific questions.
What do these findings tell us about the applicability of cross-examination findings to the real
world? Because Zajac and colleagues have always interviewed children in a room at their school, a
familiar – and presumably non-threatening – environment, it may be that this aspect of the paradigm
could have underestimated the effect of cross-examination on children’s performance. Crossman et al.
(in preparation) attempted to simulate a courtroom, but differences in the experimental paradigms
make it impossible to compare findings. The role of the courtroom environment itself therefore re-
mains an experimental question that can only be tested by manipulating interview setting. What
empirical research can never address adequately, however, is the possibility that the gravity of a real
trial situation inoculates children against making the types of cross-examination errors that arise in
laboratory studies.

Interviewer manner

By manipulating the interviewer’s behaviors, researchers have established that the emotional tone
of an interview, determined by factors such as the interviewer’s rate of speech, eye contact, posture,
tone of voice, and physical proximity to the interviewee affects children’s susceptibility to suggestion
(Carter, Bottoms, & Levine, 1996). The supportive interviewer may introduce himself to the child, en-
gage in eye contact, smile frequently, sit in a relaxed manner during the interview, and provide
encouraging comments (e.g., ‘‘You’re doing a great job’’). In contrast, the non-supportive interviewer
makes no attempt to establish rapport with the child, speaks in monotone, smiles or makes eye con-
tact infrequently, and sits with formal posture during the interview (Carter et al., 1996; Davis & Bot-
toms, 2002; Quas, Bauer, & Boyce, 2004; Quas, Wallin, Papini, Lench, & Scullin, 2005). Typically,
children interviewed in a non-supportive manner make more errors on misleading questions (Carter
192 R. Zajac et al. / Developmental Review 32 (2012) 181–204

et al., 1996; Davis & Bottoms, 2002; Quas et al., 2005, for an exception see Imhoff & Baker-Ward,
1999).
In our cross-examination paradigm, the interviewer adopts a professional, non-aggressive tone,
builds some rapport with the child before starting the interview, sits at the same level as the child,
and makes eye contact. In this way, the interviewer’s behavior could be seen as relatively supportive.
Given the findings discussed above, it is possible that our paradigm could underestimate the negative
effect of cross-examination on children’s performance. We must point out, however, that lawyers (Da-
vies et al., 1997; Henderson, 2002) and legal texts (e.g., Eichelbaum, 1989) frequently promote cross-
examining children in a gentle, non-intimidating manner, because it is under these conditions that
child witnesses are more likely to agree with the lawyer. If this were the case, we might expect our
findings to generalize to the courtroom. To test these hypotheses, however, interviewer style must
be experimentally manipulated within the cross-examination paradigm. This has yet to be done, pos-
sibly because ethical constraints limit researchers’ capacity – and willingness – to interview children
in the aggressive manner often seen in the courtroom.

Jurors’ reactions to cross-examination

Regardless of the accuracy of children’s responses to cross-examination, it is the jury that makes
the ultimate decision about whether or not the defendant is guilty.
Jurors have noted that cross-examination appears very difficult for child witnesses. In Cashmore
and Trimboli’s (2006) Australian survey, for example, jurors in child sexual assault cases believed that
defense lawyers treated the child complainants less fairly than did judges or prosecutors. Jurors
tended to be critical of the questions that defense lawyers asked children, saying that many were
not appropriate for the child’s age or intellectual functioning. The behavior of the defense lawyers also
came under fire from many jurors. In particular, jurors condemned defense lawyers who upset the
child or accused him or her of lying. Jurors also identified children as being more distressed and less
confident when they answered cross-examination questions, relative to direct examination questions.
Given that jurors acknowledge that children find cross-examination difficult, does this influence
their evaluation of children’s evidence? Several studies suggest that potential jurors take into account
the questioning style used to interview children (e.g., Castelli, Goodman, & Ghetti, 2005; Schmidt &
Brigham, 1996; Tubb, Wood, & Hosch, 1999), although these studies have focused on children’s pri-
mary evidence, where inappropriately suggestive questioning could lead to a false allegation. In Tubb
et al. (1999) study, for example, mock jurors in a simulated case of child sexual abuse were less likely
to convict when the child’s primary evidence was elicited through the use of suggestive questioning.
Given Tubb et al. (1999) findings, could inappropriate questioning during cross-examination influ-
ence jurors’ verdicts? Indeed, there is some recent evidence to suggest that this might be the case.
Evans, Lee, and Lyon (2009) used an automatic linguistic analysis tool to examine the link between
question complexity and trial outcome in 46 child sexual abuse court transcripts. The complexity of
direct examination questions was unrelated to verdict, but the complexity of the cross-examination
questions accurately predicted trial outcome in 83% of cases. Contrary to expectations, complex
cross-examination questioning was associated with guilty verdicts, rather than acquittals. How can
we account for these findings? It is possible that defense lawyers might use highly complex questions
when the prosecution case is strong, in an effort to confuse a witness that they cannot easily discredit.
Alternatively, the complexity of cross-examination might influence jurors’ perceptions of the child or
his or her evidence. This second option could occur in one of two ways. First, jurors might be more
sympathetic to a child complainant’s case when they see the child undergoing highly complex
cross-examination questioning, regardless of how the child responds. Second, jurors could be taking
children’s responses to the questioning into account. That is, they might perceive a child who stands
up to a rigorous cross-examination as more credible than one who stands up to a less rigorous one.
Once we start to consider the possible effects of cross-examination on a child’s evidence and how
this might influence jurors, the issue of consistency arises. Because cross-examination is not the first
interview that children undergo in the adversarial legal system, it may result in a contradiction of ear-
lier – direct examination – testimony. In the case of inconsistency across two interviews, jurors are
 R. Zajac et al. / Developmental Review 32 (2012) 181–204 193

required to weigh which version of events is more likely to be the truth. Inconsistency in an adult wit-
ness’s report has typically led mock jurors to conclude that that witness’s original report was not
truthful (Berman & Cutler, 1996; Berman, Narby, & Cutler, 1995; Brewer, Potter, Fisher, Bond, & Luszcz,
1999; Semmler & Brewer, 2002). In fact, Granhag and Stroemwall (2000) identified consistency as the
most frequently used cue for making truth/lie judgments about an adult witness’s testimony.
There is a dearth of research examining the effect of inconsistency on mock jurors’ perceptions of a
child’s evidence. At least one study has suggested that mock jurors may be particularly sensitive to
inconsistencies between a young child’s direct- and cross-examination evidence (Leippe & Romanc-
zyk, 1989, Experiment 3). In a recent study by Zajac and Hayne (2012), however, there was some indi-
cation that mock jurors took the questioning style used during cross-examination into account when
evaluating a situation in which a child retracted her abuse allegation. In that study, cross-examination
only exerted an influence on jurors’ verdicts when the complainant retracted her allegation despite
developmentally appropriate questioning. When the child retracted her allegation in the face of inap-
propriate cross-examination questioning, the conviction rate did not drop significantly.
The next step in this research is to ascertain whether cross-examination is a help or a hindrance to
jurors faced with the task of determining children’s accuracy. Turtle and Wells (1988) showed video-
tapes of their child ‘witnesses’ to mock jurors and asked them to determine what really happened dur-
ing the videotaped event. They found that cross-examination was more helpful to mock jurors in this
sense than direct examination. Similarly, some preliminary work of ours in a similar vein suggests that
jurors can distinguish between a cross-examination change directed towards the truth and one direc-
ted away from it (Zajac & Hayne, 2003b), but substantially more research effort needs to go toward
addressing this question.

Facilitating accurate evidence during cross-examination

Taken together, the extant research findings suggest that not only might cross-examination be an
ineffective method for ascertaining the truth, but that in some cases it might even create the very er-
rors that it aims to uncover. There is considerable potential for these errors to compromise the out-
come of a trial. Consequently, while researchers continue to explore the mechanisms behind the
effects of cross-examination, our attention must now expand to encompass reforms to policy and
practice.
We note that much of the impetus for reform has come from concern about the psychological im-
pact of testifying on children. Although there is little doubt that negotiating the criminal justice sys-
tem is not a pleasant process for children, this unpleasantness is by no means limited to child
witnesses, and is likely to apply even more so to wrongly accused defendants. In our opinion, the fun-
damental goal in considering reform should be to achieve the best quality evidence.
While cross-examination contravenes most well established principles for eliciting accurate evi-
dence from children, its aim from a legal standpoint is not to elicit evidence, but to test that evidence.
Furthermore, while eyewitness memory researchers are concerned with facilitating accurate testi-
mony, many in the legal profession will argue that the adversarial court process is concerned not with
the truth, but with convincing arguments. For these reasons, suggestion of reform of cross-examina-
tion is often met with considerable resistance from legal practitioners (Cashmore & Bussey, 1996; Da-
vies et al., 1997; Peters & Nunez, 1999). Despite conflicting perspectives of the legal profession and
psychological scientists, however, several countries have made reforms to the cross-examination pro-
cess, and several more have proposed them. Implemented and proposed reforms encompass both bot-
tom-up approaches, which aim to help children to negotiate the existing system; and top-down
approaches, in which the system, or an aspect of it, is changed to better accommodate children. The
principal options are discussed below; many of these are not mutually exclusive.

Option 1: Retain cross-examination in its current form

Can we afford to retain the status quo and hope that justice will be served? Recall that Evans et al.
(2009) observed that complex child cross-examinations were associated with convictions, suggesting
194 R. Zajac et al. / Developmental Review 32 (2012) 181–204

that developmentally unsound cross-examinations may not necessarily reduce conviction rates. Fur-
thermore, Righarts, Jack, et al. (submitted for publication) observed a high level of consistency be-
tween children’s final interview responses and their highly accurate direct examination responses,
raising the possibility that at least some of the damage done during cross-examination could be un-
done during re-examination, when lawyers may attempt to rectify any inconsistencies between their
witnesses’ direct-examination and cross-examination testimony.
Caution is warranted, however, since Crossman et al. (in preparation) data suggest that desirable
changes made during cross-examination (i.e., those directed towards the truth) may not be retained.
Moreover, even if all of the errors that children made during cross-examination were corrected during
re-examination, children who provide inconsistent testimony may be seen as less credible in the eyes
of a jury than those who remain consistent (Leippe & Romanczyk, 1989, Experiment 3). That said, Za-
jac and Hayne’s (2012) data suggest that jurors might be forgiving of inconsistencies that are elicited
by inappropriate cross-examination questioning, and two studies suggest that cross-examination
might even help jurors to discern children’s accuracy (Turtle & Wells, 1988; Zajac & Hayne, 2003b).
It is also necessary to investigate the generalizability of Righarts et al.’s findings to situations that
are more analogous to re-examination. For example, it will be necessary to confirm that children’s
re-examination responses were not influenced by the final interviewer’s presence during the memory
event, or the cross-examining interviewer’s absence during the final interview. Finally, in our experi-
ence dealing with transcripts of criminal trials involving child witnesses, we have noted that re-exam-
ination does not always take place, even when retractions or other substantial inconsistencies have
arisen during cross-examination. For these reasons, relying on re-examination as a mechanism to re-
solve any negative effects of cross-examination is risky.

Option 2: Reduce delays to cross-examination

Even in countries making concerted efforts to expedite trials involving child complainants, cross-
examination typically occurs long after an allegation has been made (Eastwood & Patton, 2002; Good-
man et al., 1992; Hanna et al., 2010; Lash, 1995; Plotnikoff & Woolfson, 1995). Furthermore, in many
countries, these delays are increasing (e.g., New Zealand; Hanna et al., 2010).
In two of the three cross-examination analogue studies in which researchers manipulated delay, a
longer delay was associated with a decrease in children’s accuracy (O’Neill and Zajac, submitted for
publication, 2012; but see Righarts, Jack, et al., submitted for publication). In light of these findings,
one way to reduce the negative effect of cross-examination might be to carry out the cross-examina-
tion interview as close as possible to the time of the event in question. Several jurisdictions provide for
cross-examination to be pre-recorded at time an allegation is made (e.g., USA, England, Wales, New
Zealand, Australia), but this provision is rarely, if ever, used (Gupta, 1994; Hanna et al., 2010).
Given the effects of delay on children’s accuracy, it would be encouraging to see policies that allow
for early cross-examination to be used. Decreasing the delays might also incur other benefits as well.
For example, long trial delays have been shown to exert a negative effect on a child’s mental state
(Runyan et al., 1994). By bringing forward cross-examination, child victims of abuse may also be able
to gain earlier access to therapeutic intervention (Esam, 2002). On the other hand, children’s perfor-
mance under cross-examination-style questioning tends to be poor even when they are interviewed
very soon after the memory event (O’Neill and Zajac, 2012; Righarts, Jack, et al., in preparation; Turtle
& Wells, 1988; Zajac et al., 2009). Reducing delay might therefore be best considered a useful adjunct
to other types of reform.

Option 3: Put cross-examination questions through a third party

Many countries have either implemented (e.g., England, South Africa) or considered (e.g., New Zea-
land) the option of conducting cross-examination through a third party, or intermediary. One of the
biggest questions facing policy-makers who consider this issue is deciding the precise role of the inter-
mediary. That is, will the intermediary act as a translator, who repeats lawyers’ questions verbatim
(e.g., Norway), or as an interpreter, who is permitted to rephrase questions to render them more devel-
opmentally appropriate (e.g., England)? The fundamental question here is whether merely buffering
 R. Zajac et al. / Developmental Review 32 (2012) 181–204 195

children from the intimidating and aggressive tone that is commonplace during cross-examination is
enough to substantially improve the quality of their evidence. Indeed, many practitioners believe that
the emotional tone of the interview is just as important as the questions themselves (Jonker & Swan-
son, 2007). As discussed earlier, however, our research would suggest that children perform poorly
under cross-examination even when the lawyer assumes a supportive – but professional – style
(O’Neill and Zajac, 2012; Righarts, O’Neill, & Zajac, submitted for publication; Righarts, Jack, et al., sub-
mitted for publication; Zajac & Hayne, 2003a, 2006; Zajac et al., 2009); it is therefore unlikely that
addressing emotional tone without addressing the nature of the questions will do much to facilitate
quality evidence.
Although the idea of a suitably qualified intermediary who rephrases questions holds considerable
face validity, there are three main caveats to this reform. First, in an ideal world, any intermediary who
was required or permitted to rephrase questions would require a comprehensive knowledge of child
development, memory, linguistics, and the evidential process. In reality, intermediaries seldom pos-
sess all of these qualities, and accreditation processes differ widely (Hanna et al., 2010). Second, no
direct systematic research has been carried out into what effect the ‘intermediary as interpreter’ ap-
proach would have on the quality of children’s evidence. As already noted, our data have shown that
cross-examination-style questions exert a far greater negative effect on children’s accuracy than ques-
tions that address the same issues but are phrased in a more developmentally appropriate manner
(O’Neill and Zajac, 2012). In that study, however, the vast majority of children provided accurate tes-
timony to begin with. What we do not yet know is whether the intermediary approach would have the
desired effect on a child whose original evidence was flawed or even fabricated. Finally, intermediaries
who are permitted to rephrase questions are unlikely to be permitted to address lines of questioning, or
comment on issues that arose earlier in questioning that might affect a child’s response to a given
question. The only model that may partially resolve this problem is a model in which the defense law-
yer briefs the intermediary on elements to test the witness on; the intermediary then conducts his/her
own questioning to achieve this. Again, however, the general lines of questioning may be non-
negotiable.

Option 4: Educate judges and lawyers about appropriate questioning

Lawyers and judges may lack knowledge of child development and, consequently, what constitutes
inappropriate questioning for children (Bala, 1999; Eastwood et al., 2000; Eltringham & Aldridge,
2000; Henderson, 2002). One defense lawyer interviewed by Eastwood et al. (2000, p. 169), for exam-
ple, stated: ‘‘because the child has the same IQ as an adult, they can largely be treated as an adult’’. As a
result of these types of misperceptions, education for lawyers and judges regarding what constitutes
appropriate child questioning is frequently advocated. Jurisdictions that have taken this approach,
however, have done so largely without success (e.g., Cashmore & Trimboli, 2005).
Why does this approach tend to be ineffective? At least one study suggests that lawyers over-
whelmingly consider their cross-examination questions to be age-appropriate, but that they also ap-
pear to underestimate the steps that need to be taken to ensure that questions are developmentally
sound (Henderson, 2002). One needs only to glance at legal textbooks, however, to see that a lack
of knowledge regarding how to question witnesses in a developmentally appropriate manner may
not be the only reason that lawyers ask complex and confrontational cross-examination questions.
Discrediting the witness is the essence of cross-examination, and lawyers are encouraged to achieve
this using techniques that would not be acceptable in any other forensic setting. Given that legal texts
also instruct lawyers to use children’s limited verbal proficiency against them to decrease their cred-
ibility (Bala, 1999; Eichelbaum, 1989; Henderson, 2002), it is likely that complex questioning is delib-
erately employed in some situations. In support of this notion, Henderson (2002) notes that, outside of
cross-examination, defense lawyers appear to be aware of the dangers of suggestive questions in elic-
iting false abuse allegations. It may also be that the use of grammatically complex questions is not al-
ways a deliberate technique utilized to confuse the child, but rather the result of cross-examination
questioning being impromptu (Zajac et al., 2003). Although the general line of cross-examination
questioning can be prepared in advance, the individual questions cannot (Eichelbaum, 1989), perhaps
196 R. Zajac et al. / Developmental Review 32 (2012) 181–204

resulting in more complex questions than necessary or intended. Educating lawyers would do little to
solve this problem.
Unlike lawyers, judges have a general duty to prevent questioning that may result in the court
being misled, and many jurisdictions allow or compel judges to intercede when questions are inappro-
priate. Which questions are considered to be inappropriate does differ depending on the jurisdiction,
but may cover questions that are confusing, misleading, harassing, offensive, repetitive, intimidating
and/or annoying (Cashmore & Bussey, 1996; Eastwood & Patton, 2002). Hafemeister (1996) noted that
judges tend to believe that they are adequately addressing inappropriate courtroom questions. Over
87% of judges in that study stated that they monitored questions that children were asked and ensured
that they could be understood. Over 95% of judges thought that posing questions at children’s compre-
hension level was fair and effective. In stark contrast, the data suggest that judicial intervention rarely
occurs when a child is giving evidence (Davies & Seymour, 1998; O’Kelly et al., 2003; Zajac & Cannan,
2009; Zajac et al., 2003). In fact, Davies and Seymour (1998) reported that no one intervened to protect
children from inappropriate questioning in the 26 New Zealand transcripts that they analyzed, while
Zajac et al. (2003) and Zajac and Cannan (2009) both noted that judicial intervention was extremely
rare. This lack of intervention may indicate that judges do not have a good understanding of the types
of questions that are not appropriate for children (Eastwood & Patton, 2002).
Although educating judges on these issues may be more successful than educating lawyers, a lack
of knowledge about what constitutes appropriate questioning is not the only reason that judges might
be hesitant to intervene. Numerous researchers, for example, have suggested that judges may fear
seeming biased (Davies & Seymour, 1998; Kebbell, Hatton, Johnson, & O’Kelly, 2001; O’Kelly et al.,
2003). Intervening can also cause considerable disruption in a trial, especially if the jury needs to
be sent out while discussion takes place. Finally, some judges in Cashmore and Bussey’s (1996) study
indicated that thorough testing of the child’s evidence during cross-examination was of utmost impor-
tance, and that a child’s distress was an unfortunate – but acceptable – consequence. Interestingly,
judges’ willingness to intervene was inversely related to their perception of children’s susceptibility
to fantasy and suggestibility.

Option 5: Prepare children for cross-examination

In recognition that testifying in court is difficult for child witnesses, many jurisdictions offer prep-
aration programs to vulnerable witnesses in the lead-up to the trial. Unfortunately, children’s diffi-
culty with cross-examination questioning has largely been neglected in these programs, which
generally focus on familiarizing children with the courtroom and its procedures (Davies, Devere, &
Verbitsky, 2004; Dible & Teske, 1993; Doueck, Weston, Filbert, Beekhuis, & Redlich, 1997; Finnegan,
2000; Gersch, Gersch, Lockhart, & Moyse, 1999; Mellor & Dent, 1994; Morgan Libeau, Woodham, &
Rickard, 2003; Welder, 2000). Some programs tell children that cross-examination will differ from
other forensic interviews, in that their integrity might be questioned (Bauer, 1983), or give some basic
instruction on addressing cross-examination questions (Morgan Libeau et al., 2003), but these ele-
ments typically comprise only a small part of the intervention.
Although children can be taught strategies to answer suggestive and other difficult questions accu-
rately (Gee, Gregory, & Pipe, 1999; Peters & Nunez, 1999), these interventions do not prepare children
for the challenges to credibility that characterize cross-examination. Helping children to respond to
these types of questions is crucial, given that children might either assume that their evidence will
be believed (Saywitz, 1989), or fear that it will not (Flin, 1993; Flin et al., 1989; Freshwater & Aldridge,
1994).
Recent research shows that merely warning children of the difficult nature of cross-examination is
likely to be insufficient to buffer them from the negative effects of this questioning style (Righarts,
O’Neill, et al., submitted for publication). In light of these findings, Righarts, O’Neill, et al. (submitted
for publication) developed a brief (approximately 20 min) intervention specifically designed to give 5–
10-year-old children practice and feedback at the types of questions that they might be asked during
cross-examination. During the subsequent cross-examination interview, children who received the
intervention made fewer changes to their earlier responses, and changed a smaller proportion of their
correct – but not their incorrect – responses, relative to control children. Furthermore, accuracy levels
 R. Zajac et al. / Developmental Review 32 (2012) 181–204 197

during the cross-examination interview were higher in the intervention group than in the control
group. In short, the intervention was successful (Righarts, O’Neill, et al., submitted for publication).
At this early stage, three main advantages of the intervention are evident. First, children are not
‘coached’ on their testimony about the staged event; they receive practice at answering questions
about an unrelated topic. Second, the intervention emphasizes accuracy rather than resistance to
change per se. Third, the intervention was effective despite being conducted by an unfamiliar third
party, as would occur in real life. Naturally, however, there are numerous aspects of the intervention
that require more comprehensive investigation. For example, we recently confirmed that the efficacy
of our preparation intervention decreases with time (O’Neill and Zajac, submitted for publication),
raising questions about whether we can reduce/ameliorate this effect, perhaps with a brief verbal re-
minder of the intervention. Furthermore, because we cannot predict with any great certainty the ques-
tions that children will be asked, it is crucial that we investigate children’s ability to generalize from
the intervention to the courtroom. Our data (O’Neill and Zajac, submitted for publication; Righarts,
O’Neill, et al., submitted for publication) suggest that the extent of the overlap between the practice
questions and the cross-examination questions exerts little effect on intervention efficacy, but some
degree of overlap has always been present. Finally, it is important to ensure that our intervention is
beneficial to children with low levels of assertiveness, confidence and self-esteem, as these character-
istics are common in victims of child abuse (Howing et al., 1990; Kaufman & Cicchetti, 1989; Martin &
Beezley, 1977; Oates et al., 1985), and are also associated with poorer cross-examination performance
(Zajac et al., 2009).
Most important to note is that while our intervention has facilitated children’s cross-examination
performance across two studies, even children in the preparation conditions made changes to their
earlier testimony that decreased their overall accuracy levels. Further work needs to determine which
components could be added to preparation programs, which aspects should be altered, or which re-
forms they should be implemented alongside, to maximize their effectiveness.

Directions for future research

Because laboratory analogue studies of child cross-examination are a relatively recent phenome-
non, researchers will be busy for some time uncovering details of the effect of cross-examination
on children’s eyewitness reports, and the mechanism(s) responsible. There are, however, several other
directions for future cross-examination research, each of which has particular forensic relevance.

Cross-examination of older witnesses

Adult witnesses also face lengthy, linguistically complex, and coercive cross-examinations (e.g.,
Brereton, 1997; Danet & Bogoch, 1980; Kebbell, Deprez, & Wagstaff, 2003; Zajac & Cannan, 2009)
and are susceptible to many of the same factors that influence children’s performance during forensic
interviewing (e.g., wording of a question; Kebbell, Hatton, Johnson, & O’Kelly, 2001; Kebbell & Johnson,
2000; Loftus & Greene, 1980; Loftus & Zanni, 1975; Perry et al., 1995; Poole & White, 1991; Waterman,
Blades, & Spencer, 2001; social influence, Asch, 1956; Cialdini, 1988; Milgram, 1963, 1974). In light of
this, are the negative effects of cross-examination limited to children?
By studying court transcripts in which child and adult complainants gave evidence in sexual of-
fence trials, we recently confirmed that adults are not immune to the effects of cross-examination
on their testimony (Zajac & Cannan, 2009). In fact, adults undergoing cross-examination made just
as many changes to their evidence as children. Many of these changes were elicited by the types of
questions that are unique to cross-examination (i.e., leading and/or credibility-challenging questions).
In light of this finding, it is imperative that we examine whether these changes decrease adults’ accu-
racy as they do that of children. Three of the four studies to examine this issue have observed that
adults’ accuracy decreases significantly following cross-examination-style questioning (Brimacombe,
Jung, Garrioch, & Allison, 2003; Turtle & Wells, 1988; Valentine & Maras, 2011; but see Jack & Zajac,
2011).
198 R. Zajac et al. / Developmental Review 32 (2012) 181–204

Importantly, the questioning style used to cross-examine adults in the courtroom is likely to be
qualitatively and quantitatively different from that used to cross-examine children. Relative to chil-
dren, for example, adult witnesses tend to be asked more cross-examination questions, a higher pro-
portion of which are complex and credibility challenging (Zajac & Cannan, 2009). The specific
credibility challenges used to cross-examine adults are also likely to differ from those used with chil-
dren. In cases of a sexual nature, for example, defense lawyers are likely to raise the issue of consent
with adult complainants – clearly not a valid means of challenging a child. By asking participants of all
age groups the same questions, it is likely that laboratory research could overestimate the age-related
decrease in the cross-examination effect. Overcoming this obstacle in an empirically sound way poses
a challenge for researchers.

Cross-examination of witnesses with an intellectual disability

Compared to their typically developing peers, individuals with an intellectual disability2 (ID) are at
greater risk of being a victim of a serious crime, including physical and sexual assault and robbery (West-
cott & Jones, 1999; Wilson & Brewer, 1992). Despite this, crimes against persons with an ID frequently go
unreported, and even when a report is made, only a few cases make it to court (Valenti-Hein & Schwartz,
1993). Part of the reason for this is that individuals with an ID are perceived to be unreliable witnesses. In
fact, jurors consider witnesses with an ID to be less credible than their typically developing counterparts
(Stobbs & Kebbell, 2003).
Is this skepticism warranted? Children and adults with an ID can give very accurate – albeit brief
(Agnew & Powell, 2004; Michel, Gordon, Ornstein, & Simpson, 2000; Milne & Bull, 2001) – reports in
response to open-ended questions (Agnew & Powell, 2004; Dent, 1992; Gordon, Jens, Hollings, & Wat-
son, 1994; Henry & Gudjonsson, 1999, 2003). Given the cognitive delays and adaptive functioning def-
icits experienced by people with an ID, however, we should not be surprised that they struggle with
questions that are specific, repeated, complex, and suggestive (Agnew & Powell, 2004; Dent, 1992;
Gordon et al., 1994; Gudjonsson & Henry, 2003; Heal & Sigelman, 1995; Henry & Gudjonsson,
1999; Michel et al., 2000). These findings pose a problem for witnesses with an ID who are questioned
in a forensic context (see Kebbell, Hatton, Johnson, & O’Kelly, 2001; Milne & Bull, 2001, for reviews).
That is, the types of questions that these individuals find most difficult to answer accurately are just
the sorts of questions that characterize cross-examination. For this reason, cross-examination is likely
to pose more problems for these witnesses than for their typically developing peers (Gudjonsson &
Henry, 2003; Kebbell, Hatton, & Johnson, 2004).
Adding to the problems that intellectually disabled witnesses might experience during courtroom
questioning, lawyers and judges seem reluctant to alter their practices to accommodate witnesses
with an ID. Kebbell et al. (2004) noted that, for the most part, lawyers question witnesses with and
without an ID in a similar way. When compared to typically developing witnesses, however, individ-
uals with an ID provided shorter responses, were less likely to resist leading questions (particularly
during cross-examination), and were less likely to provide clarifying information. Furthermore, judi-
cial intervention – whether addressed to the witness or to the questioning lawyer – is rare in cases
involving witnesses with an ID, and does not occur significantly more often than in cases involving
typically developing witnesses (O’Kelly et al., 2003).

Cross-examination of dishonest witnesses

It is now well established that cross-examination questioning can compromise the accuracy of chil-
dren who are telling the truth. What is less well known is its effect on children whose original ac-
counts are not accurate. Taken together, these two approaches would strike at the very heart of the
cross-examination issue, and could exert substantial impact on policy-makers. Although Zajac and
Hayne (2003a, 2006) and Crossman et al. (in preparation) ensured that children’s direct examination
reports were not 100% accurate by misleading them on some aspects of the memory event, we know

2
Intellectual disability is also referred to ‘learning disability’, particularly in the United Kingdom, and ‘mental retardation’,
predominantly in the United States.
 R. Zajac et al. / Developmental Review 32 (2012) 181–204 199

nothing about situations in which children are purposefully fabricating their evidence, and how cross-
examination might uncover the truth in these cases. At this juncture, it is important to consider that a
sexual abuse allegation would be particularly easy to fabricate, as there is seldom physical or eyewit-
ness evidence to corroborate a complainant’s story (Bays & Chadwick, 1993; Berenson, Heger, & An-
drews, 1991; Walsh, Jones, Cross, & Lippert, 2010). Children who are fabricating their accounts can
find it very difficult to maintain consistency across statements (e.g., Talwar, Gordon, & Lee, 2007; Tal-
war & Lee, 2002), raising the distinct possibility that their reports might be especially susceptible to
cross-examination. Even if cross-examination identified 100% of liars, however, it is not a useful tech-
nique if it cannot discriminate acceptably between an accurate and an inaccurate witness. The caveat
to this statement, of course, is that it is possible that jurors can distinguish a change made towards the
truth from one directed away from it. As mentioned earlier, our preliminary research suggests that
this might be the case when children have been misled about the memory event (Zajac & Hayne,
2003b), but again, we have no data regarding fabricated reports.

Concluding remarks

Recent research has made it clear that cross-examination is unlikely to be the truth-finding tech-
nique that many believe it to be. Instead, the style of questioning typically used during this process
directly contravenes almost every principle scientifically established over the past 30 years for obtain-
ing complete and accurate evidence from any witness, particularly a child. Of specific concern, the
types of questions typically employed during cross-examination have been shown to exert a signifi-
cant negative effect on the accuracy of children’s reports about personally experienced events.
Although the difficulty that children experience during cross-examination appears to be widely recog-
nized, because cross-examination is a mainstay of adversarial trial procedure, there appears to be
resistance to its reform. Some progress in designing effective interventions has been made, with prep-
aration programs that give children practice and feedback at answering cross-examination-style ques-
tions achieving promising results. Significant work is still needed, however, to maximize the
effectiveness of these interventions. The legislature and judiciary also need to be open to alternative
means of gathering and testing children’s evidence. On the other hand, it is clearly dangerous to allow
testimonial evidence to go untested – especially when corroborating evidence is absent or limited.
What empirical research has yet to tell us is how proposed alternative methods of testing children’s
evidence fare with regard to establishing the truth.

Acknowledgments

During the preparation of this paper, a portion of Rachel Zajac and Harlene Hayne’s salaries were
paid by Marsden grants from the Royal Society of New Zealand. The authors gratefully acknowledge
Bridget Irvine and Paula Cannan for their assistance.

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