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Attorneys Often Fail to Clarify Ambiguous Child Testimony

When asked ‘do you know’ and ‘do you remember’ (DYK/R) questions containing an implicit wh- (who, what, where, why, how, and which) question requesting information, children often provided unelaborated ‘yes’ responses. When DYK/R questions contained an implicit yes/no question, unelaborated ‘yes’ or ‘no’ responses could be responding to the explicit or implicit questions resulting in referentially ambiguous responses. In the context of testimony during child sexual abuse cases, children often provided referentially ambiguous responses, and attorneys usually failed to disambiguate children’s answers. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2017, Vol. 23, No. 2, 191-199

Pragmatic Failure and Referential Ambiguity When Attorneys Ask Child Witnesses “Do You Know/Remember” Questions

Authors

Angela D. Evans, Brock University
Stacia N. Stolzenberg, Arizona State University, Tempe
Thomas D. Lyon, University of Southern California

Abstract

“Do you know” and “Do you remember” (DYK/R) questions explicitly ask whether one knows or remembers some information while implicitly asking for that information. This study examined how 4-to 9-year-old (N=104) children testifying in child sexual abuse cases responded to DYK/R wh- (who, what, where, why, how, and which) and yes/no questions. When asked DYK/R questions containing an implicit wh- question requesting information, children often provided unelaborated “yes’ responses. When DYK/R questions contained an implicit yes/no question, unelaborated “yes’ or “no” responses could be responding to the explicit or the implicit questions resulting in referentially ambiguous responses. Children often provided referentially ambiguous responses and attorneys usually failed to disambiguate children’s answers. Although pragmatic failure following DYK/R wh- questions decreased with age, the likelihood of referential ambiguity following DYK/R yes/no questions did not. The results highlight the risks of serious miscommunication caused by pragmatic misunderstanding and referential ambiguity when children testify.

Keywords

Child witnesses, pragmatics, referential ambiguity, testimony

Summary of the Research

“Children’s difficulty in understanding the implied meaning of questions can led to miscommunication…and both adults and children can fail to recognize the ambiguity of children’s answers. This study examined one way in which child witnesses’ failure to understand the implied meaning of questions may lead to miscommunication and ambiguity. We identified ‘Do you know’ and ‘Do you remember’ (DYK/R) questions asked of child witnesses that explicitly asked whether children knew or remembered information while implicitly asking for that information. We distinguished between DYK/R wh- questions, which could lead to incomplete responding, and DYK/R yes/no questions, which could lead to ambiguous responding (p.191).”

“We suspect that both children and attorneys have only limited awareness of the referentially ambiguous nature of DYK/R questions containing implicit yes/no questions. The ambiguity of an unelaborated ‘yes’ or ‘no’ response is subtle because one has to generate the alternative interpretations to identify the ambiguity. For example, if a child is asked, ‘Do you remember if it was dark?’ and answers ‘No,’ the attorney must mentally generate ‘No, I don’t remember’ and ‘No, it wasn’t dark’ to recognize the ambiguity (p.193).”

“This study examined the use of DYK/R questions in sexual abuse trials in which child witnesses testified. We first looked for evidence of pragmatic failure by determining whether children often gave unelaborated ‘yes’ responses to DYK/R questions that implicitly asked wh- questions (e.g., ‘Do you remember where it happened?’). We examined how attorneys responded to such answers to ascertain whether the questions were indeed intended to ask both a literal and an implied question. We predicted that children would frequently exhibit pragmatic failure but that this tendency would diminish with age (p.193).”

“We then turned to DYK/R questions that implicitly asked yes/no questions. With respect to DYK/R if/whether questions (e.g., ‘Do you remember if it was dark?’), we examined the extent to which children gave unelaborated ‘yes’ and ‘no’ responses. With respect to DYK/R questions gerund questions (e.g., ‘Do you remember going to the house?’), we examined how often children simply said ‘No.’ We then determined whether attorneys sought to disambiguate children’s responses…We predicted that children would frequently provide referentially ambiguous responses, and that this tendency would diminish with age. We anticipated that attorneys would frequently fail to clarify whether children were answering the explicit or literal question (p.193).”

“We found that in 18% of the cases in which attorneys asked DYK/R questions containing an implicit wh- question, there was clear evidence that pragmatic failure occurred; children responded with an unelaborated ‘yes,’ and attorneys followed up by asking the implicit question…We found that children provided referentially ambiguous responses to about half of the DYK/R if/whether questions and about a fourth of the DYK/R gerund questions. Attorneys usually failed to disambiguate children’s responses. As a result, 22-37% of the DYK/R yes/no questions led to unresolved referential ambiguity. When attorneys did seek clarification, children revealed that they had been answering the literal question about half the time and implicit question about half the time. Hence, there is substantial opportunity for misunderstanding children’s responses because of the use of DYK/R questions (p. 196-197).”

“Consistent with our prediction, children were less likely to exhibit pragmatic failure as they grew older, and more likely to answer the implicit question, suggesting that development plays a part in children’s interpretation of indirect speech acts. However, children exhibited no age improvement in the likelihood that their answers to DYK/R yes/no questions were referentially ambiguous. Hence, there is no evidence that within this age range (up to 9 years of age), children were aware of the ambiguity of their responses. Indeed, one wonders whether the adult attorneys were aware of the ambiguity, given their failure to attempt disambiguation in most cases. Thus, future research can explore the emergence of understanding, and examine how performance may change throughout adolescence and into adulthood (p.197).”

“Although attorneys usually followed up children’s unelaborated ‘yes’ response to DYK/R questions with the implicit questions, they failed to do so about a fourth of the time, suggesting that they may not have intended the DYK/R question as an indirect speech act. One possibility is that they asked the implicit question later in the examination…Rather, it seems more likely that attorneys were sometimes asking these questions as introductions to the topic, similar to a tendency we noted in the introduction with respect to DYK/R temporal questions and DYK/R definition questions. In such cases, they would be satisfied with an unelaborated ‘yes’ response, and the child’s answer would not reflect pragmatic failure (p.197).”

“Ironically, to the extent that attorneys sometimes asked DYK/R questions as indirect speech acts and sometimes as topic introductions, this may have increased the likelihood of referential ambiguity. In any case in which a DYK/R question was asked, it was difficult to determine precisely what the attorneys were getting at; did they only want the child to answer the literal question, or were they getting at more? We had the benefit of considering the attorneys’ follow-up questions, but of course the children did not know what the next questions would be. If the attorneys sometimes expected literal answers and sometimes expected answers to the implicit question, then children had little guidance regarding how they should interpret DYK/R questions. Even if children recognized the implicit question, they might have answered literally. In turn, this increased the risk that attorneys would misinterpret a literal response to a DYK/R yes/no question as a response to the implicit yes/no question (p.197).”

Translating Research into Practice

“For a number of reasons, interviewers have been encouraged to minimize the use of yes/no questions. This study provides additional support for this advice…Practitioners should attempt to reword their DYK/R questions as questions that cannot be answered ‘yes’ or ‘no.’ Rather than use DYK/R questions as topic introductions, attorneys should explicitly introduce topics…a method called signposting and recommended by practice guidelines (p.198).”

“In court, objections are available to ambiguous questions, but only if attorneys can recognize them as such. It is likely that practitioners need to be trained. The ambiguity of children’s answers to DYK/R appears not to be obvious, given the frequency with which both prosecutors and defense attorneys fail to ask clarifying questions. Although there is no objection for ‘referential ambiguity,’ DYK/R yes/no questions could be characterized as ‘vague’ or as ‘compound,’ which are standard trial objections (p.198).”

“Training could also enable attorneys to identify inconsistencies in children’s testimony that might be due to referential ambiguity. For example, a child might answer ‘yes’ to a DYK/R question, answering the literal question, but subsequently answer ‘no’ to a yes/no question about the same topic…Attorneys who recognized the referential ambiguity of DYK/R yes/no questions could explain the apparent inconsistency. Moreover, the rules of evidence in many states in the United States give the judge authority to disallow questions that are developmentally inappropriate…Again, however, judges will need training and some encouragement to intervene on behalf of child witnesses (p.198).”

“This study has demonstrated the potential pitfalls in asking DYK/R questions of children, given children’s limited understanding of the pragmatics of questions and the referential ambiguity of answers. Future lab and observational work can profitably explore what is likely a much broader problem in child interviewing and testimony (p.198).”

Other Interesting Tidbits for Researchers and Clinicians

“This study suggests a number of promising new directions for future work on the difficulties children encounter in investigative interviews and in court. The pragmatics of child interviewing has received little attention…Referential ambiguity in investigative and courtroom questioning has also been largely overlooked…the research has predominately focused on documenting the frequency of potentially ambiguous questions, rather than how well children answer such questions…Future work can take into account the linguistic developmental work on children’s understanding of anaphora, as well as expand the range of linguistic devices that are likely to lead to ambiguity (p.197-198).”

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored By Amber Lin

Amber Lin is a volunteer in Dr. Zapf’s research lab at John Jay College of Criminal Justice. She graduated from New York University in 2013 with a B.A. (honors) and hopes to obtain her PhD in forensic clinical psychology. Her research interests include forensic assessment, competency to stand trial, and the refinement of instruments used to assess the psychological states of criminal defendants.

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Interactive Training System Successful for Child Interviewers

A computer-based, interactive training system demonstrates promising results for investigative interviewers of children by improving interview questioning skills, increasing adherence to interview protocol, and enhancing overall quality of interviews. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

ppplEvaluation of a Comprehensive Interactive Training System for Investigative Interviewers of Children | Psychology, Public Policy, and Law | 2015, Vol. 21, No. 3, 309-322

Evaluation of a Comprehensive Interactive Training System for Investigative Interviewers of Children

Authors

Mariri Benson, Deakin University
Martine B. Powell, Deakin University

Abstract

This article reports on the evaluation of an interactive interviewer training system with a large, heterogeneous sample of investigative interviewers of children. The system, delivered predominantly through computer-assisted learning activities, focused on how to elicit important evidential details from child witnesses in a narrative format. Two studies are reported, each adopting a pre versus post training design. Study 1 examined the effect of the training on trainees’ (N = 92) performance, using mock interviews where an actor played the role of the child in a highly controlled manner. Study 2 examined the effect of the training on field interviews (N = 156) conducted prior to and after the training. Five measures were analyzed: (a) proportion of interviewer question types, (b) proportion of desirable interviewer behaviors, (c) adherence to the interview protocol, (d) interview length, and (e) the quality of evidential information sought. Overall, the findings provide clear support for the utility of the training system. Irrespective of the type of interview or measure, adherence to best-practice interviewing increased from pre- to posttraining, with some evidence supporting sustained performance 12 months after there had been no intervening training or supervision. The implication is that there is now an evidence-based alternative to the traditional classroom-based training system for investigative interview- ers. Suggestions for future research are also discussed.

Keywords

child witnesses, investigative interviewing, interview training, training evaluation

Summary of the Research

Interviewing children can be a tedious and complex process, which requires careful practice by those conducting the interviews. In a forensic context, investigative interviews of children can be even more complex, as they are “centered on the elicitation of accurate, detailed, and coherent accounts of offenses. Such interviewing requires highly specialized training. The current article reports on the evaluation of a new interactive training system with a large cohort of child abuse interviewers in two jurisdictions of Australia. The new system consisted of computer-assisted learning activities, which focused on using open-ended questions to elicit narrative accounts for both investigative and evidential purposes. The learning activities, prepared in collaboration with academics and industry partners, were completed over several months in trainees’ regular workplace environments. Delivery of the learning exercises was standardized and controlled via an online learning site that uses a management system to allow in-house (organizational) trainers to track individuals’ progress” (p. 309).

The authors address the concern that, “despite strong consensus about what constitutes best-practice interviewing, a major gap exists between interviewing methods dictated in evidence-based interview protocols and those strategies used by interviewers in the field” (p. 309). They outline three features of modern child interviewing protocols: instructional ground rules about the process of interviewing, the use of a practice narrative prior to questioning of the event under investigation, and the use of open-ended questions.

The authors discuss possible factors contributing to the low efficacy of current training techniques: an underestimation of the skill required to teach child witness interviewing and a need for more interactive components to training in order to avoid passive learning. “Research in the interviewer-training field has made some head- way in identifying how to amend the structure and format of training programs to more successfully reduce the gap between best-practice guidelines and actual interview practice. Specifically researchers have increased the intensity and frequency of feedback, prolonged the length of time during which trainees received feedback, staggered face-to-face training sessions over an extended period of time, and incorporated subsequent “refresher” sessions after training completion. While such attempts have led to better success in open-ended question usage, the maintenance of skills over time (from immediate posttraining to several months follow- up) is still problematic. Another attempt to address the gap has involved incorporation of e-learning technology. E-learning technology has transformed workplace learning across a number of domains in terms of accessibility, flexibility in delivery, cost-efficiency and the fact that trainees can progress through activities in their own time and at their own. E-learning allows for active participation from trainees and places more responsibility for professional development on the individual learner. Another benefit of e-learning is that it can incorporate a wider array of media elements, such as text, narration, animations and film clips, as well as empirically supported instructional strategies into the learning environment, which promote long-term retention and transfer of skills and knowledge into practice” (p. 311).

The current study examined the efficacy of a web-based, interactive training program on child witness interviewing techniques. “At the time of this evaluation, the current training system, named the Specialist Vulnerable Witness Forensic Interview Training, had been in operation for 18 months across two Australian jurisdictions. The overriding focus of the training was to increase understanding of sufficient evidential requirements and how to elicit this information in narrative format. The training took a number of months to complete and consisted of 15 modules, covering a wide variety of topics: defining the various question types, child development, techniques on how to elicit a disclosure, how to interview about repeated abuse, identifying relevant legislation, recognizing grooming behavior, and interviewing cross- cultural children and other witnesses with complex communication needs. An interview protocol, similar in structure to the NICHD protocol and approved by local Crown prosecutors (Benson & Powell, manuscript under review) was also introduced” (p. 312).

The training program included interactive exercises, film clips, examples, presentations, virtual simulations, self-initiated practices, and quizzes. Participants were provided with immediate online feedback including explanations of correct answers. Progress was monitored through a management system by the trainers in order to prevent participants from advancing through the course too quickly. Throughout the training, mock interviews with actors (trained to respond like abused children) were utilized and conducted over phone or video call.

The study was completed in two parts. In Study 1, 92 trainees participated in the interactive training system and were assessed based on mock interviews, Participants demonstrated a decrease in specific and leading questions asked, an increase in open-ended questions asked, and the improvements lasted through a three to six month follow up. In Study 2, 78 trainees were evaluated on field interviews by the same individual both before and after training., The number of specific and leading questions of interviews are decreased, and an increase in open-ended questions was also observed. There was also a significant increase in adherence to the interview protocol post-training. These improvements showed no evidence of decline at follow-up.

“The current findings provide clear support for the utility of the training system evaluated in this study. The most important indicator of best-practice interviewing is adherence to open-ended questions, and this training was associated with a significant increase, along with relatively high posttraining rates, in the use of these questions. For the mock interviews, the mean proportion of open-ended questions increased from 30% at pretraining to 58% at posttraining. For the field interviews, the mean proportion of these questions increased fourfold from 10% pre- to 40% posttraining … Importantly, improvements in performance were sustained at the 3–6 month follow-up mock interview assessment and for up to 12 months in the field…. What the current study showed is that long-term maintenance of interviewing skills is not just about the prevalence of feedback and supervision in the months after the course ceases. The structure of the training program itself also impacts skill maintenance.” (p. 316).

Translating Research into Practice

“The implication of the current findings for government organizations is that there is now an evidence-based alternative to the traditional classroom-based training system for investigative interviewers. This is good news for those organizations with limited budgets and staff spread over large geographic regions. When excluding the costs of writing and developing the materials, the training system was no more costly to run than the previous short-term classroom-based training where most of the budgets were spent on travel, accommodation, and other requirements associated with the abstraction of large numbers of trainee interviewers into the classroom. The main costs associated with this course were technological support, the hiring of actors, the maintenance of the management system, and the evaluation of interviewer performance. It also needs to be considered that the training would have led to cost savings in other areas. Shorter interviews are associated with lower interview transcription costs. The provision of ready-made training activities and resources allow in-house trainers to focus on supporting trainee interviewers, as opposed to writing and delivering course content. Further, computerized assessment allows easier evaluation and monitoring of individual skills over time” (p. 317).

The findings of this research may be directly translated into practice by providing an innovative training method relevant to child witness interviewing and, more broadly, leading to the potential adoption of similar training programs across other forensic professional practices. The current study suggests that the use of modern technology for offering professional training is not only cost-efficient and convenient for the learner, but also successful in improving skills and practice.

Other Interesting Tidbits for Researchers and Clinicians

Notably, the comprehensive interactive training program in the current study appears to maintain its success over several months. Future research and similar programs may consider secondary follow up analyses, as well as follow up training or materials to provide to learners. It would be worthwhile to create new ways to help forensic mental health and investigative professionals maintain skills learned in training over longer periods of time.

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored By Marissa Zappala

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Marissa is currently a second-year Master’s student in the Forensic Psychology program at John Jay College of Criminal Justice in New York. Her main research interests include cognitive biases, forensic assessment, and evaluator training and education. Following her Master’s, Marissa plans to pursue a doctoral degree in clinical psychology and an eventual career in psychological assessment.