Complex Questions and Children

 Posted on January 22, 2009 in Uncategorized

Here is an article (Complex Questions Asked By Defense Lawyers But Not Prosecutors Predicts [sic] Convictions in Child Abuse Trials) from the Journal of Law and Human Behavior describing a study using automated linguistic analysis finding that the complexity of the questions asked by defense counsel in a child sex abuse case predicts the outcome of the case: more complex questions asked by the defense are associated with convictions.

The study analyzed 46 randomly-selected transcripts from felony child sexual abuse trials in Los Angeles between 1997 and 2001 involving at least one testifying complainant under age 18, and then narrowed the transcripts down to questions directed toward child witnesses by the defense (average 239 questions per trial) and the prosecution (344 questions).

Then:

Connexor Functional Dependancy Grammer (FDG) [demo] parser was used to obtain complexity and wordiness measures of the defense and prosecution's questions. The software produced the total number of layers (complexity measure) and branches (wordiness measure) for each question. Then, mean scores for complexity and wordiness for each child witness were calculated for the defense and prosecution.....

Paired sample t-tests revealed no significant difference in the number of words used by the defense (M = 33.88, SD = 9.91) and prosecution (M = 32.40, SD = 19.80), t(45) =.88, p =.38. Also, the defense and prosecution question wordiness measures were not significantly correlated with witness' age, r(46) =.17, n.s., and r(46) =.27, n.s., respectively. The mean complexity scores of questions asked by the defense (M = 17.55, SD = 3.66) and prosecution (M = 16.66, SD = 3.66) were not signi?cantly different, t(45) = 1.33, p =.19. Again, the defense or prosecutions question complexity scores were not significantly related to age, r(46) =.18, n.s., and r(46) =.27, n.s., respectively.

So neither the defense nor the prosecution was better than the other at asking short, simple questions of child witnesses, and neither adjusted the complexity of its questions according to the age of the child witness.

The researchers sought a correlation between trial outcome and age of witness, wordiness of questions, and complexity of questions. Age of witness and wordiness of questions were not found to be outcome-predictive. But complexity of questions and, more specifically, complexity of defense questions, was a significant predictor of verdict:

Contrary to our prediction, defense lawyers who use more complex questioning were 2.16 times more likely to produce a guilty verdict for their client than those who use less complex questions. In contrast, the prosecution's questions were not signi?cantly related to the trial outcome.

The researchers (Angela D. Evans, Kang Lee, and Thomas D. Lyon) then broke down the questions asked by defense lawyers according to the sort of responses children gave (I don't know, no, no expansion, yes, yes expansion, open ended).

The model accurately predicted the trial outcome 82.6% of the time. Speci?cally, when the defense asked more complex questions leading to an I don't know (b = 1.44, Wald = 6.29, p <.01, odds ratio = 4.22) or no-expansion (b = 2.53, Wald =.90, p <.01, odds ratio = 12.55) response from children they were more than 4 and 12 times more likely, respectively to receive a conviction verdict than those defense attorneys who used less complex questions leading to such responses.....This suggests that juries may respond positively when children react to defense complex questions in certain ways. Simply responding with ‘yes' or ‘no' to complex questions was not related to a conviction, but replying with a ‘no' and expanding on the response helped achieve a conviction. This may re?ect children's ability to successfully resist defense attorney's complex and leading questions. In addition, jury members may perceive a child's response of ‘‘I don't know'' to a complex question as a sign of competence in their ability to identify questions they do not understand, rather than a lack of memory or a submissive response.

(For another take on the accuracy of yes – no – open ended answers by children and adults' perception of that accuracy, take a look at this 2007 article by Laimon and Poole.)

Knowing juries, I suspect that they might see a complex question (we call those "Marcia Clark questions" around here) followed by an "I don't know" answer not as a sign of the witness's competence, but rather as an unsuccessful effort by the lawyer to trick the witness. What else is going on here?

First, jury members may feel the defense's use of complex questions is unfair or a deliberate attempt to mislead the child witness. Perceptions of unjust questioning may lead jury members to feel protective of, or empathetic towards, the child witness. Another possible explanation is that defense attorneys may use more complex questions when the prosecution has a strong case in hopes to mislead or ‘‘trick'' the child witness, thus more complex questions may occur in cases that result in a conviction verdict.

The researchers' guesses are as good as two of mine - that juries might not like inappropriately complex questions asked of children (cause and effect), and that lawyers might ask such questions when they've got nothing else (shared cause).

There's a third hypothesis. Terry MacCarthy tells us that cross-examination should consist of short, simple statements; it may be that complex questions asked of children are simply a sign of bad lawyering, which doesn't often lead to acquittal.

Whether the Marcia Clark questions are the cause of the conviction or only a symptom of some other underlying problem, defense lawyers would do well to learn how to talk to children before taking on the weighty task of cross-examining them.

The researchers don't seem to have tried to correlate trial outcome to the difference between defense question complexity and prosecution question complexity. It would be interesting, and might be helpful, to know whether, notwithstanding the similar mean complexity levels, in the conviction cases, the prosecution asked less complex questions than the defense.

If it's not so - if prosecution cases in any given case are as complex as defense questions - then how do we account for a greater probability of conviction in that case? One answer is that "doubts about the accuracy of children's memories do not always translate into doubts about the ultimate issue in forensic cases, which is whether the gist of alleged events occurred as described.... In other words, the concerns adults have about children't cognitive competence are not strong enough to lead them to discount the probability that alleged events occurred when they actually read or view testimony, especially when children describe inappropriate touching." (Laimon and Poole 2007.)

In still other words, people tend to give the complainant the benefit of the doubt in child abuse cases, which strengthens the case for a lawyer to learn the research not only behind child accuracy (what kind of questions will get the most accurate answers?) but also behind adult perception of child accuracy (what kind of answers will be perceived as most truthful) before charging in to question a child in court.

(Thanks again to future criminal-defense lawyer Joshua Zientek for his research assistance.)