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The challenge of the adolescent witness

Several big issues face legal professionals when putting adolescents on the witness stand, experts tell Lawyers USA.

“Attorneys need to be mindful that adolescents and younger children are on a different developmental scale,” said Dr. Patricia McEvoy, a founder of Zagnoli McEvoy Foley, one of the nation’s largest litigation consulting firms.

How old and mature the adolescent looks can have a real effect on jurors’ perceptions, McEvoy said.

“In modern times, kids are getting older faster,” she said. “More and more, jurors are treating adolescents like adults, depending on their age and who they are.”

Scott M. Hollander, executive director for KidsVoice, a Pennsylvania organization dedicated to advocacy for children’s rights and representation, said this is because some adolescents “are very advanced emotionally, linguistically, physically or some combination of those.”

For this reason, experts and researchers alike warn against the dangers of gauging an adolescent’s ability based on age and appearance.

Listed below are some special challenges adolescent witnesses present and how lawyers can avoid the pitfalls:

Special Challenges

One unique challenge with adolescent witnesses is that they tend to come across as less credible than younger children with jurors.

While “lawyers shouldn’t underestimate the importance of an underage witness,” they have to be “very careful when they put anyone underage on the stand. It may backfire,” said McEvoy. “Children are very powerful witnesses, because most of us assume that a child does not automatically lie.”

But when it comes to adolescents, “[jurors] are not going to automatically believe and understand an adolescent,” McEvoy said.

Dr. Bette Bottoms, Associate Professor of Psychology at the University of Illinois at Chicago, said the reason “victim age is a powerful predictor of jurors’ judgments” is that “it influences jurors’ perception of child competence and trustworthiness.”

“We know from looking at jurors’ perceptions of adult rape victims, they sometimes are very skeptical of adults, and that starts right around age 12 or 13,” said Bottoms, who has published several studies on jurors’ perceptions of child and adolescent testimony.

One reason, according to Hollander, is that while some adolescents may appear to be adults physically, they are not necessarily adults mentally, and it is up the lawyer to get that across to the jury.

“What’s challenging for some teenagers is that they are still kids,” he said. “A juror might think, ‘That kid physically looks like he could be 20,’ even though he’s only 13.” That might lead jurors to assume the adolescent “must be able to answer these questions and be very comfortable on the witness stand.”

Bottoms said that establishing an adolescent’s credibility is especially challenging in child sexual abuse cases, because they don’t have the instant credibility of a younger witness.

“Young children – under 12 – are generally perceived to be low on competence like cognitive abilities, memory or resistance to suggestion, but are perceived by jurors to be high on trustworthiness – like honesty, sincerity and innocence,” she said. Jurors view younger sexual abuse victims as “sexually naive, lacking the knowledge and cognitive capacity to fabricate sex encounters that didn’t happen, and lacking the sexual experience and provocativeness and motivation to lie.”

Those same factors can work against an adolescent in a sexual abuse case.

“So in the case of sexual abuse, the lack of cognitive ability sort of helps young children’s credibility, but it hurts older children,” she said.

But in cases that focus on a witness’ cognitive abilities, adolescents have an advantage over children.

“For example, if a case highlighted competence or cognitive abilities, such as cases in which children are bystander witnesses and must remember many details accurately, older children are likely to be perceived as more credible than younger children,” said Bottoms.

Another instance in which adolescents are more credible than younger children is in personal injury or medical malpractices cases. This is because jurors tend to be less wary of the lawyer’s motivations in such a case.

McEvoy cited an example in which a child is placed on the stand in a personal injury case to talk about the loss of a parent.

“Jurors are very wary of having that child on the stand because they think the lawyer is putting that child on the stand to manipulate their sympathy,” explained McEvoy.

However, when it comes to adolescents, they are “going to talk about who the person was and how their life has changed, and that could affect the damages that the jury would need to award,” said McEvoy.

Lastly, not all of the challenges adolescents present have to do with jurors’ preconceived notions. An adolescent’s personal comfort level – or lack thereof – with authority figures can also be a challenge.

“It’s especially challenging for lawyers because many of these teenagers may not think highly of authority … and they’re suspicious of you, or they’re suspicious of a judge, or they’re suspicious of the other lawyer that’s cross-examining them – and that gets misread as dishonesty or lack of credibility.”

That is why building trust is particularly important with adolescents, because the failure to do so can ultimately hurt their credibility, Hollander said.

Jury Selection

Jury selection can often becomes particularly important when a case hinges on the testimony of an adolescent witness.

“I would sure want to know [what prospective jurors] are parents of adolescents that age and, even more important, who are grandparents of adolescents that age,” said McEvoy. “Who is going to look at that [adolescent] and see their own flesh and blood?”

Jurors who never had children are a little more difficult to read. McEvoy noted that many people who never had kids “put children on a pedestal.” Whether that holds true for an adolescent witness depends largely on how grown up they appear.

“If the adolescent [appears to be] on the younger scale, they’re going to treat them as child,” she said. “If they’re a little older, they are going to treat them like an adult and hold them to the same standards, and lawyers would have to take that into consideration.”

Another factor lawyers need to take into consideration is a juror’s gender.

Although both women and men “react negatively to child sexual abuse,” Bottoms said, “Men and women in our society generally differ on our attitudes and our ability to empathize with child victims.

“One of the most robust findings is that men are more likely to side with the defense in child sexual abuse cases, and women are more likely to believe the child victim/witness,” she said.

Bringing Out Their Best Side

Experts agreed that a lawyer’s success often boils down to how credibly he or she portrays each adolescent witness. There are several techniques that can be used to make adolescent witnesses more believable to the typical juror. They include:

* Emphasize positive attributes.

One of the ways to dissolve juror bias is to bring out the adolescent’s positive attributes from the get-go.

Hollander cited an example: “A lawyer can ask the adolescent, ‘What grade are you in school?’ ‘I’m in 9th grade.’ ‘But you’re only X years old. Does that mean you skipped a grade?’ I moved ahead when I was in fifth grade.’ [As a result], that kid seems smarter and more credible than you might otherwise attribute to him.”

If the adolescentis in an honors program at school, or has received any kind of awards, you want to let the jury know by emphasizing the adolescent’s achievements. To give a sense of how mature and responsible the adolescent is, a lawyer may also want to bring up whether the adolescent takes care of younger siblings at home, or volunteers at a hospital, for example.

Anything that will increase the teenager’s credibility in the eyes of a skeptical juror should be brought out early in direct examination, Hollander said.

* Be aware of cultural differences.

There are many instances in which the cultural differences between the witness and the jurors can undermine the adolescent’s credibility. For example, a reluctance to speak out can be perceived as withholding, uncooperative or even that the witness has something to hide.

“There are cultures where children are supposed to be seen and not heard,” said Hollander.

Alternatively, children may have been taught in school or by their families that it is essential to provide an answer to every question, whether you really know the answer or not.

“And so, rather than say, ‘I don’t know,’ which is the honest answer to a question, you set yourself up as a witness to be cross-examined,” said Hollander. “Emphasize that it’s OK to answer ‘I don’t know’ even to important questions, and that the child does not need to always know the answer.”

Another cultural difference is the use of eye contact.

“They may be in a home where they’re taught to respect their elders in a way that you don’t look at someone directly in the eye,” said Hollander. As a result, a juror or judge who has a different cultural background can wrongfully conclude the adolescent is not being respectful, when in reality, “that’s exactly what’s expected of them in their culture or home.”

* Build rapport.

“The key for adolescents – or any witness – is to help them to be as comfortable as they can and develop rapport with you and with the jury, or with the judge,” said Hollander.

Lawyers can get a heads-up on what kind of teenager they will be dealing with by talking to some of the other professionals who have worked with him or her. He pointed out that a lawyer is generally not the first person to speak with an adolescent witness, because most have been through physical examinations or forensic interviews.

“And so speaking to those people who’ve already talked to [teenagers] can help you get a better sense of where they are in terms of their language, their development, their comfort in talking about things, in terms of what types of kids they may be and what they respond well to,” he said.

After getting an idea of who the adolescent is, lawyers can build trust by getting to know the witness on a personal level, said Hollander.

“The most important thing is to talk about them. That’s where they are [developmentally] – they are more egocentric. They don’t understand other people’s perceptions as much. Their perception is very ‘I’ focused, and so talking about them is very important.”

For example, he said, “talk to them about what music they like, the television shows that they watch, what they like to do, what they’re good at, and compliment them on what they’re good at.”

If the adolescent was a good artist, for example, “You could say, ‘it would be great if you draw something for me now,’ or ‘if you draw a picture for me, I’d really love to put it up in my office,’ and have it up in your office the next time they come in,” advised Hollander.

Being sympathetic and expressing that sympathy toward the adolescent is another way to build trust, said Hollander.

One way to go about doing that is to revert back to the material previously gathered by other professionals, such as reports and videotape on that adolescent.

Having looked at the videotape, a lawyer can then say to the adolescent, “‘I saw the videotape. I know this is really hard for you. Can you tell me X?’ That’s easier than trying to get something out of a witness who’s never talked to you about the situation.”

* Develop comfort in court.

Once a lawyer has established a relationship with the adolescent, shift that comfort level into the courtroom.

“Spend time with them at the courthouse,” Hollander stressed. “There are unfamiliar rules, and so making them more comfortable is real important. You can go visit the courtroom ahead of time and have them sit in the judge’s chair, if that’s permissible in your jurisdiction.”

And don’t stop there.

“If would be good to have them go and observe what happens in a similar type of case. That may seem like a lot of time to spend on a case, but then they have a much better idea of what to expect and what’s going to happen,” he said.

The courtroom experience should then mirror the interview process, with similar rapport building, non-threatening questions first.

“That’s done by starting them off by giving them very easy questions to answer – their name, their address, who they live with – and letting the judge and jury get to know a little more about them – where they go to school, what grade they’re in, favorite subjects,” said Hollander.

Bottoms also stressed the importance of smiling a lot and using direct eye contact.

* Use simple language.

“The way that you ask questions is very important with older children, just as it is with younger children,” said Bottoms. “Use very straight-forward language, not complex vocabulary.”

Hollander agreed.

“The clearer the question is, the clearer it’s going to be to the witness and to the judge or jury that’s going to be hearing the question. If they don’t understand the question, they’re not going to understand the answer,” he said.

For example, Hollander said a lawyer would typically ask, “‘At what rate of speed was the decedent’s vehicle traveling southbound on the night in question?’ But do you really have to ask all that? Can’t you just ask, ‘How fast was he driving?’

“I don’t think that changes whether you have a child who is 8 or 13 or 19 or 90. It’s just easier to ask that question and get a straight answer. A jury likes you better because you’re not talking over their heads,” he said.

For the most part though, the language skills of an adolescent are much more advanced than young children.

“By the time you’re a teenager, language skills for many people in our culture are as developed as they’re going to get,” said Hollander.

Adolescents not only “remember better [than younger children], they articulate what they remember better,” said McEvoy.

Children tend to be more literal, and their inability to understand the questions can lead to incorrect answers.

“If you ask a child, ‘Are you in school now?’ the answer might be, ‘No,’ because you’re sitting in your office. A child understands the word ‘now’ as the moment the question is asked, and may not comprehend that an attorney has asked a broader question,” he explained.

“That’s not true with teenagers, they are going to pretty much understand a question the way an adult would understand the question.”

McEvoy said that what it comes down to is that lawyers can “get very good results from questioning [an adolescent], as long as they know where their limitations are.”

Questions or comments can be directed to the writer at: jaclyn.jaeger@lawyersweekly.com