Self-Representation: Pro se Cross-Examination and Revisiting Trauma upon Child Witnesses
In the United States, the right to confront one’s accusers at trial is one of the key components of the adversarial legal process. As a part of this process, defendants are permitted to represent themselves if they decide to do so voluntarily (Faretta v. California 1975). As cross-examination of witnesses is considered essential to the adversarial legal system, child victims can be faced with being personally cross-examined by defendants. In cases involving vulnerable witnesses, such as child abuse victims, there is concern that being cross-examined by the defendant can be highly problematic and create more trauma over and above being cross-examined by a defense attorney. In the United States, there are no laws that explicitly forbid defendants from cross-examining their own victims, and decisions are made on a case-by-case basis. We discuss relevant legal traditions in the United States, laws and procedures followed by other countries that use the adversarial system, current psychological research on cross-examination of child witnesses, the need for further research, and recommendations for ways the United States can protect the rights, well-being, and personal security of vulnerable children.
KeywordsDefendant pro se Self-represented defendant Child witness Cross-examination
In 2016, Christopher Simcox, former kindergarten teacher and former leader of a border patrol militia, was convicted of two counts of molestation and one count of furnishing obscene material to a minor (a 5-year-old child). He was sentenced to 19.5 years in prison. Simcox was also accused of molesting his 6-year-old daughter but was acquitted on those charges.
This case came to the attention of child victim advocates because Simcox, who represented himself, insisted on cross-examining his alleged child victims. The legal battle over whether or not Simcox could personally conduct his own cross-examination lasted for over a year (see, e.g., Arizona v. Padilla 2015; Lemons 2016). Throughout this period, the children’s attorneys joined with legal scholars, psychological researchers, and prosecutors to apply legal analysis and psychological science to prevent Simcox from cross-examining the children.
At a pretrial hearing on the matter, the trial judge ruled in favor of Simcox’s right to cross-examine the child victims, based on the Sixth Amendment to the United States Constitution. Challenges to the judge’s decision then went to the Court of Appeals of Arizona, which has statewide jurisdiction. The Court of Appeals also ruled in favor of the defendant. The Court of Appeals decision was then appealed to the State Supreme Court of Arizona, which is the state’s court of last resort, but it declined to review the case on the merits. Preparations were then being made to take the case to the United States Supreme Court, which expressed interest by issuing a “Call for Response.” Some child advocacy groups prepared in earnest and even drafted an amicus brief. However, Simcox finally abandoned his plan to proceed pro se. Therefore, the trial went forward, and the brief was not filed. With the children having been in limbo for over a year of their young lives, one of them testified in open court, and the other testified via closed-circuit TV (CCTV), while being questioned by attorneys. Simcox was convicted of a subset of the charges, specifically molestation of the 5-year-old child (Cassidy 2016).
Simcox illustrates the need to understand emotional and attitudinal effects on children when self-represented defendants cross-examine their own alleged child victims in the courtroom. The United States is one of the few countries that permits this practice with child victims. What rights to personal security do—or should—such children have? In adversarial legal systems, such as the one in the United States, defendants have the constitutional right to face their accusers in court and to challenge the accusations against them. Pro se (in propria persona)1 is Latin for “on behalf of themselves.” Pro se defendants represent themselves in the legal system. Thus, self-representation can lead to defendants cross-examining their own alleged victims, including child victims of sexual crimes.
Our goal is to review scientific research and legal practice relevant to cross-examination of children conducted by self-represented defendants in criminal court. Of course, adults can be vulnerable witnesses. However, we focus on children rather than adults because children are widely considered to be in an especially “at risk” period of life, given their fledgling socioemotional and cognitive development and the potential negative impact of stressful events on their well-being. In the legal context, this vulnerability can extend into adolescence (Quas and Goodman 2012).
Although the legal definition of “child” can change depending upon the context, for the purpose of this review, we use the term “child” to refer to a broad age range, from 2 through 17 years. This age range is particularly fitting not only because of children’s special vulnerabilities at these ages, but also because we discuss research in this article about children as young as 2 years (Goodman et al. 1999) and as old as 17 years (Eastwood and Patton 2002).
The review is potentially relevant to child witnesses and victims of all crimes, but especially to violent ones prosecuted in criminal courts. However, much of the research in this area focuses on child sexual abuse victims. Child victims of sexual abuse are particularly likely to provide testimony in criminal court because they are often the key, if not the only, witnesses to the crime (Bala et al. 2001), and there is commonly little to no physical evidence of the sexual assault (Myers 1993). Children appear in criminal court trials more frequently in sexual abuse cases than they do in other types of cases (Cross and Whitcomb 2017; Goodman et al. 1999). Thus, much of this review addresses issues pertinent to child victims of sexual crimes.
We first outline the history of self-represented defendants in the United States and discuss current U.S. law, including provisions made for child witnesses. We then describe approaches of other adversarial legal systems and limitations or possibilities of these applications in the United States. Next, we review relevant research on cross-examination of children by defendants. We present research on children’s emotional and attitudinal reactions to testifying in court, including on seeing the defendant and enduring cross-examination in terms of short-term and long-term effects on child witnesses. We consider how pro se cross-examination can affect the accuracy of child witness testimony, which goes to the truth-seeking function of trials. We also consider potential effects of cross-examination on perceptions of procedural justice, and we provide suggestions for future research that can be conducted to further understand the issues involved. We end the review by offering recommendations for research-informed policy in the United States.
History of Defendants Pro Se in the United States
In the United States, there is a long history of legal arguments about whether or not defendants have the right to represent themselves in the courtroom (Comment 1973). Indeed, the Judiciary Act of 1789 was enacted by the First United States Congress and signed by President Washington. In Section 35, it was proposed that all parties had the right to argue their own cases, with or without the assistance of counsel. By refusing assistance of counsel, the right to self-representation was (and still is) implied. Through the years, various arguments have been made for the defendant’s right to self-representation both in federal and in state courts. Arguments refer to the wording of the Sixth and the 14th Amendments of the United States Constitution and to the Federal Rules of Criminal Procedure, Rule 44, which imply the right for self-representation. For example, the Sixth Amendment, among other rights, gives the accused the right to be informed of the case, to obtain favorable witnesses, and to confront accusers. As these rights are afforded the accused and not the attorney for the accused, it has been argued that self-representation is implied. Furthermore, it has been argued that the right for assistance of counsel does not mean that counsel can be forced upon the defendant.
In 1975, the United States Supreme Court held that the defendant had a constitutional right to self-representation (Faretta v. California 1975). This is commonly known as the “Faretta right.” Thus, defendants in criminal cases in the United States maintain the right to represent themselves under certain circumstances (Comment 1973; Marcus 1982). When allowed to self-represent, the “attorney pro se” is guaranteed the same rights afforded to other defendants, including the right to confront the accuser and the right to cross-examine the accuser (McKaskle v. Wiggins 1984).
The right to represent oneself is not absolute. For example, a defendant must fully understand the decision to waive counsel, and this decision must be made “intelligently and competently” (Johnson v. Zerbst 1938). The defendant must demonstrate understanding of possible dangers involved, including the likely fact that he or she lacks the technical and legal expertise essential to conduct a proper defense. Factors used to determine if the defendant’s decision is being made intelligently and competently include the defendant’s education, background, age, and experience (Marcus 1982). The purpose of these limitations is to guarantee the defendant’s right to a fair trial (Powell v. Alabama 1932). Additional limitations on pro se defense can be imposed on defendants who engage in abusive or disorderly behavior that disrupts the trial (Faretta v. California 1975; Illinois v. Allen 1970; Slobogin 2009), which includes abusive, harassing, or intimidating behavior toward witnesses. In addition, although the confrontation clause in the Sixth Amendment of the United States Constitution gives defendants the right to physically face and cross-examine their accusers (Pennsylvania v. Ritchie 1987), the rights of the defendant do not outweigh those of the public and cannot be aimed at frustrating the integrity of the trial (Mattox v. United States 1895).
Cross-Examination and Defendants Pro Se in the United States
Cross-examination is viewed as one of the key factors in an adversarial legal system. It is part of the process allowing a defendant “to be confronted with the witnesses against him” or her (Sixth Amendment, United States Constitution). In addition, in the United States, citizens may also feel that procedural justice is served through cross-examination (Sevier 2014), although surveys reveal public exceptions to that view in the case of child victims (Batterman-Faunce and Goodman 1993). The key purpose of cross-examination has long been framed as truth-finding (Ram 1873). In Wigmore’s (1904) famous treatise on evidence, he stated that “[Cross-examination] is the greatest legal engine ever invented for the discovery of truth” (p. 1697). The commonsense notion has been that the requirement to “say it to my face” will deter lying and other distortions of the truth. Methods of cross-examination include attempts to find new and helpful information that has not yet been presented (Cox 1852; Schneider 2015; Smyth 1988), and attempts to challenge the witness by exposing unreliability and lack of credibility, either in the witness or in the witness’s testimony, or in both (Adams et al. 2003; Wellman 2009), thereby testing the ability of the witness’s testimony to stand up under scrutiny (Myers 2017).
There is some question about whether or not cross-examination is actually effective in eliciting the truth from witnesses or in fact finders reaching the truth (see, e.g., Epstein 2007; Underwood 1997). Therefore, instead of determining truth, demonstrating fair treatment may be the most important role that cross-examination has during legal proceedings, both in terms of giving the accused a voice and treating all parties with respect (Tyler 1988). In line with procedural justice theory, cross-examination is ideally conducted politely (see, e.g., Smyth, 1961/1988; Underwood 1997). However, a courteous method is not always followed (Lininger 2005; Schneider 2015), thus likely decreasing perceptions of fairness and justice.
In the United States, decisions about pro se defendants conducting their own cross-examinations are made on a case-by-case basis (e.g., State v. Crandall 1990; State v. Sigarolo 1989). Often it is the responsibility of the prosecution to demonstrate that such cross-examination would cause extreme harm to witnesses (e.g., Fan 2014; National Crime Victim Law Institute 2017). However, it is up to the judge to decide. In the United States, although the Sixth Amendment dictates the right for defendants to represent themselves, judges have discretion to protect children’s personal security. Evidence that testifying in the presence of an abuser would be traumatic can come through expert testimony, testimony from a parent (State v. Sigarolo 1989), or the child’s own expressions of fear and discomfort (Hicks-Bey v. United States 1994; State v. Crandall 1990). For example, in Hicks-Bey, a 6-year-old child expressed distress about testifying in the abuser’s presence by hiding behind her hands and under the bench and by being hesitant and withdrawn. This evidence was sufficient to allow the child to testify via closed circuit television (CCTV).
Many courts have used Maryland v. Craig (1990) to argue that in sexual abuse cases, undue harassment and/or embarrassment would be caused to the child witnesses if defendants pro se were allowed to question the accusers (e.g., Fields v. Murray 1995; State v. Carrico 1998). Rule 611(a) of the Federal Rules of Evidence states that “The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to. .. protect witnesses from harassment or undue embarrassment.” Pro se cross-examination of the accuser should fall under the definitions of Rule 611(a), and states do not violate defendant’s rights by requiring an intermediary to question an accuser, especially if the defendant determines which questions will be asked (Lininger 2005).
When courts are grappling with the need to carefully balance the rights of the accused and the rights of vulnerable witnesses (Goodman et al. 1992a; Goodman et al. 1991b; Maryland v. Craig 1990), some restrictions can be placed on a self-represented defendant, for instance in child abuse cases (see e.g., Applegate v. Commonwealth 2009; Morris v. Slappy 1983). For example, according to Child Victims’ and Child Witnesses’ Rights (2011), if it is determined that a child cannot testify in the presence of the defendant, the attorney pro se can be excluded from the courtroom. If this occurs, the defendant’s image must be projected into the room with the child, and the child’s image must be projected into the room with the defendant. An attorney for the government and an attorney for the defendant pro se will be present and will conduct direct and cross-examination. In addition, the defendant can submit competency questions, but cannot question the child on competency. In such cases, the defendant must be allowed private communication with the defense attorney during hearings and depositions.
Defendants Pro Se Outside the United States
Self-representation is allowed in various degrees in numerous jurisdictions outside the United States, especially those with a British legal heritage (e.g., Australia, Canada, England, India, New Zealand, Scotland, and South Africa) but also Japan and Scandinavia (Adams et al. 2003; Evidence Act of 1908; Griffiths et al. 1980; J. Papa Rao v. Government of A.P. and Ors. 2002; Myklebust 2017; Omoto 2014; Ramaite v. The State 2014; Sexual Offences Procedure and Evidence Act of 2002). In many of these countries, courts attempt to balance the rights of the accused with the need to protect vulnerable accusers such as children.
Aside from the United States, in other countries using the adversarial legal system, restrictions can be placed on defendants pro se when the alleged crime is sexual in nature. In some cases, this is true both for child and adult victims. This list is not exhaustive, but it does provide insight into how other countries with legal systems similar to ours address the issue of defendants pro se cross-examining their own vulnerable witnesses. Although the U.S. Supreme Court has been reluctant to acknowledge insights from other countries’ laws and legal procedures (Breyer 2015), even U.S. legal authorities might be motivated to take note in regard to vulnerable child victims.
In New Zealand, the Evidence Act of 1908 prohibited the accused from personally cross-examining sexual assault victims under the age of 17. Currently, per the Evidence Act of 2006 self-representing defendants in New Zealand are not entitled to cross-examine any victims of sexual crimes unless given permission by the judge. The judge may prohibit pro se cross-examination based on factors including the witness’s age, disability, or maturity level, or the nature of the legal proceedings. The change from the 1908 to 2006 law affords more rights to the defendant, albeit at the discretion of the judge, while also extending protections to adult victims of sexual crimes.
In South Africa, the self-represented accused are allowed to cross-examine all state witnesses, including child victims of sexual abuse. However, it is the court’s duty to protect vulnerable witnesses from harassment. The Criminal Procedure Act of 1977 authorizes the court to provide protections for everyone under the physical or mental age of 18 by allowing them to testify via CCTV or to appoint intermediaries to question witnesses. With CCTV, witnesses are questioned in a separate room where they cannot see the defendant, but where the court can see them. If an intermediary is used, the intermediary asks all direct and cross-examination questions in a manner that does not change the meaning of the questions but removes confusing and intimidating language (Jonker and Swanzen 2007; Müller and Tait 1997).
A different procedure to that used in South Africa is carried out in Scandinavian countries, with specially trained police officers conducting the questioning of child victims under the age of 15 in the “Children’s House”2 (similar to Children’s Advocacy Centers in the United States). The children then do not see the defendant or appear in court (Myklebust 2017). The rights of children to personal security and support and to be heard without being exposed to risks of re-traumatization are central to the Scandinavian approach.
Defendants who are representing themselves in Canada are generally prohibited from cross-examining any witnesses under the age of 18 as well as adult victims of sexual assault or domestic violence. This prohibition is nullified, however, in cases in which the judge determines that it is absolutely necessary that the accused conduct the cross-examination (Criminal Code 1985; LeSage and Code 2008).
Courts in the United Kingdom prohibit pro se counsel from cross-examining witnesses under 17 in sexual assault cases and witnesses under 14 in cases of kidnapping and similar crimes (Youth Justice and Criminal Evidence Act 1999). Various jurisdictions in the United Kingdom have their own restrictions. Cross-examination by unrepresented accused is prohibited in England in cases of rape and sexual assault (Padfield 2012). In Scotland, a person accused of certain sexual offenses, including rape, must be legally represented throughout the trial (Sexual Offences Procedure and Evidence Act 2002), a requirement that is taken to mean that the accused cannot represent himself or herself.
These countries’ constitutions do not formally enshrine the Sixth Amendment rights found in the United States Constitution. We propose that, in the United States, defendants’ Sixth Amendment right to confrontation of their accusers should bend toward protection of children’s personal security when defendants decide to “go pro se” in cases involving child victims. Our contention is that such balancing of interests is consistent with the general principle of U.S. constitutional law that fundamental rights may be attenuated when doing so is necessary to protect compelling state interests (e.g., healthy socialization of children), provided that the limitation is narrowly drawn to meet such interests with minimal invasion of (in this instance) defendants’ constitutional rights.
Psychological Research Related to Child Victims and Witnesses
Each year, millions of children are involved in legal actions, including criminal prosecutions (e.g., National Children’s Alliance 2018; U.S. Department of Health and Human Services 2018). Although child sexual abuse cases are particularly likely to involve child victims’ testimony in court, children appear as victims or witnesses in prosecutions of many other types of crimes as well, including domestic violence, robberies, thefts, and assaults—perhaps even border crossings. As a result of their experiences, children may be interviewed by authorities, be asked to appear at court, and eventually be required to testify in depositions, at preliminary hearings, at trial, and in sentencing hearings. The criminal courts are especially known for austerity and harshness, a characteristic of such courts in virtually every country (Hall and Sales 2008). Numerous psychological issues are raised when children become involved in the legal system, and a body of scientific research has investigated these issues (Quas and Goodman 2012).
Research exists on children’s emotional reactions to legal involvement, including cross-examination in court. Yet in helping to prepare the amicus brief that was drafted for submission to the U.S. Supreme Court in the Simcox case, we were struck by the lack of psychological literature directly on point. For ethical reasons, the topic is clearly difficult to study in the laboratory. Research in the criminal justice system is hampered by infrequent cases in which a defendant decides to “go pro se” to cross-examine child victims. This infrequent nature has precluded study, although the frequency of pro se representation may be growing. When these cases do occur, children’s rights to personal security and risk of re-traumatization are center stage.
An important question is whether self-representation is particularly problematic for child victims. As we noted supra, children constitute a vulnerable set of victims and witnesses, given their formative emotional development, their limited understanding of legal procedures, and their dependence on adults (e.g., Bowlby 1980; Goodman et al. 1991b; Saywitz et al. 1999). Because victims are likely to take the stand in criminal prosecutions for child sexual abuse (Cross and Whitcomb 2017; Goodman et al. 1999), apprehensions about short-term and long-term effects of legal involvement are particularly acute in such cases. Concerns have been raised that subjecting children to cross-examination by the defendant in child sexual abuse and other types of serious cases can force the children not only to re-live the trauma but also to experience continued negative emotions associated with the experience, such as anger, fear, humiliation, and powerlessness. It has been argued that the defendants can use cross-examination to threaten children into silence (Anderson 1997) and to humiliate victims while potentially re-living the power and satisfaction originally felt during the victimization (Hansard 1998; Padfield 2012). Concerns with re-traumatization of child victims quickly raise the issue of children’s personal security, especially in regard to their mental health.
Despite its presumed necessity for the adversarial legal system, cross-examination is viewed by many to be the most brutal and hostile part of legal proceedings (Brodsky 2004). Many researchers argue that cross-examination of children is unnecessarily hostile (Davies et al. 1997; Eastwood and Patton 2002; Westcott and Page 2002), perhaps especially in child sexual abuse cases where a lack of physical evidence is common, and the child victim’s testimony plays a crucial role. In cases involving child witnesses, defense attorneys may cross-examine children under a number of premises that indicate the accusation is false (Myers 1992). These include the premise that the children are easily led by others to make false allegations, that the content and timing of children’s disclosures are questionable, that children have ulterior motives to lie about the defendant, and even that children make up the accusations of abuse out of thin air (Davies et al. 1997). Although displays of hostility are discouraged as counterproductive to the purposes of the defense (Wellman 2009), some attorneys conducting cross-examination have accused children of lying, claimed that children were not normal, and purposefully put children under as much stress as possible (Davies et al. 1997; Eastwood et al. 1998).
Child Victims and Witnesses: Anxieties, Fears, and Emotional Effects of Appearing in Court
Children’s Anxieties and Fears
Scientific research has not directly examined the effects of self-representation per se on children’s mental health, legal attitudes, or eyewitness accuracy. However, even in cases in which self-representation of the defendant is not an issue, seeing the defendant and cross-examination are frightening for many, likely most, child witnesses (Goodman et al. 1992a; Hobbs et al. 2014). In fact, seeing the defendant in the courtroom is one of the most difficult experiences for these children (Goodman et al. 1992a; Henry 1997; Hobbs et al. 2014; Quas and Goodman 2012). Children feel negatively about testifying, especially if the accused is present (Quas and Goodman 2012) and indicate that testifying in the presence of the defendant is the most frightening part of the trial (e.g., Henry 1997).
When studying criminal prosecutions for child sexual abuse, Goodman et al. (1992a) questioned child victims immediately before the children stepped into the courtroom. Fear of seeing the defendant was among the children’s greatest fears. Children worry, for example, about intimidation (e.g., “He might give me the evil eye”) and retribution (e.g., “He said he would kill me if I told”).3
When Henry (1997) interviewed children about their court experiences, 62% stated that not having the defendant in the courtroom would have made testifying easier for them. Similarly, in-depth interviews with 130 8- to 17-year-old children appearing as sexual abuse victims in Australia revealed that two of the three most distressing parts of the legal process were seeing the defendant and cross-examination (Eastwood and Patton 2002).
Hobbs et al. (2014) compared 4- to 16-year-old children’s fears of testifying in child sexual abuse cases in United States criminal and dependency courts. Children were more frightened of the defendant in the criminal court context, where the Sixth Amendment applies. Female children also expressed greater fears. Severity of maltreatment and older age of the children were significantly associated with greater negativity about answering questions in court.
Thus, it is clear that seeing the defendant and cross-examination are distressing experiences for child victims and witnesses. Anecdotally, some parents report that their children had nightmares, vomited, felt faint, or could not eat or sleep as the court appearance approached (Goodman et al. 1992b). If the thought of merely seeing the defendant during face-to-face confrontation is highly distressing for children, it would likely be even more so if the defendant is cross-examining the child, particularly in severe maltreatment cases and in cases in which threats of violence to the child or the child’s family were made, explicitly or implicitly. When the fear of seeing the defendant is combined with the fear of cross-examination, children’s capacity to cope and their feelings of personal security may be severely strained.
That said, not all children react with terror at the thought of facing the defendant in court and submitting to cross-examination. Some children want to testify in open court, and children profit from having a choice (Cashmore 2008; Hayes and Bunting 2013). Some children emerge from the courtroom saying it was not as bad as they had feared, although at times this sense of relief is not for the best reasons. (For example, one child was relieved because she felt the defendant was not going to kill her, just her mother.) At present, children’s anxieties and fears in reactions to the thought of cross-examination by pro se defendants are largely unknown. Extant research suggests, however, that many children’s anxieties and fears will be substantial.
We add that another important issue is the nonoffending caretakers’ views about the effects of the criminal court process on their children. At seeing their children full of anxiety at the prospect that the defendant will cross-examine the children, adults may decide not to place the already traumatized children further “in harm’s way”; parents or other caregivers may decide against permitting the children to take the stand. To help quell children’s and parents’ concerns, extra supports (e.g., use of closed-circuit TV, support dogs, tours of the courtroom, “kids court” preparation programs; Nathanson and Saywitz 2015; Schudson 1987) from victim advocates, prosecuting attorneys, clinicians, and family, as appropriate, are likely needed when a pro se defendant asserts the right to cross-examine child witnesses.
In cases that go to the criminal courts, child victims are already vulnerable and likely suffering emotional effects of traumatic experiences (Quas et al. 2005). There are numerous psychological and physical problems associated with experiencing child abuse or other traumas. These can include (but are not limited to) difficulty regulating and understanding emotion, insecure attachment, increased antisocial behaviors and decreased prosocial behaviors, poor academic performance, anxiety, depression, post-traumatic stress disorder (PTSD), dissociative tendencies, and maladaptive physiological stress responses (Alink et al. 2012; Cicchetti et al. 2010; Cicchetti and Toth 2005; Edwards et al. 2007; Goodman et al. 2009; McEwen and Gianaros 2011; see Klika and Conte 2017, for review). Moreover, in child sexual abuse prosecutions, those child victims called to testify in criminal court have more behavioral problems to start with than comparable children who do not testify (Quas et al. 2005).
Hostile cross-examination can exacerbate the emotional distress that child witnesses are already experiencing. For example, lengthy or harsh cross-examination is associated with negative effects on children’s mental health both in the short term (Whitcomb et al. 1994) and after many years (Quas et al. 2005). The courts assume that victims in general, regardless of age, will experience short-term distress, but may feel that such distress is unavoidable in the pursuit of justice. However, for child victims, emotional problems concomitant to testifying can persist even years after a case is over, even into adulthood (Quas and McAuliff 2009). Predictors of negative emotional effects in the short- and/or long-term include severe sexual abuse (e.g., long-term incest, violent sexual assault), testifying multiple times, hostile cross-examination, lack of corroborative evidence, and lack of parental support (Henry 1997; Quas et al. 2005; Whitcomb et al. 1994). The concern is that these negative effects may be compounded by forcing children to be cross-examined by possible abusers who are representing themselves in court. Because children typically know their abusers, the children may feel particularly conflicted and intimidated at being cross-examined by the person accused of assaulting them sexually or otherwise.
It is important to note, however, that involvement in criminal prosecutions as a child witness can also have positive effects of empowerment, for example, in cases involving less severe abuse. Legal participation can give children a voice, help them feel believed, and help them feel their needs and experiences are taken seriously, which is likely beneficial to their mental health and sense of personal security (Goodman et al. 1992a, b; Hayes and Bunting 2013; Henry 1997; Quas et al. 2005). For many children although their emotional distress is heightened at the start of a prosecution, after the case resolves, their parents rate the children’s mental health as having improved compared to the initial distress (Goodman et al. 1992b; Quas et al. 2005). The emotional effects of being cross-examined in court by the defendant are unknown, but taken together research suggests that the experience is likely to be negative overall.
Along with being associated with increased mental health problems, testifying, especially in the presence of the defendant, is associated with long-term negative outcomes regarding children’s attitudes about the law and the legal system (Quas and Goodman 2012). In a follow-up study of adolescents and young adults who were involved in sexual abuse court cases when they were children, individuals who felt the system was too harsh on victims were significantly more likely to view the legal system as unfair (Quas et al. 2005). When individuals have negative attitudes about the legal system, they are less willing to report crimes (Tyler 2006).
Legal attitudes are shaped by a variety of factors, including childhood trauma, attachment insecurities, and psychopathology, but interactions with the legal system clearly play an important role as well (Goldfarb 2018). Although the procedural justice literature finds that positive legal attitudes are predicted by such factors as respectful treatment and neutral decision making (Tyler 2006), for child victims and their families, outcomes matter considerably, too (Goodman et al. 1992b). Child victims have more positive attitudes about the legal system if the prosecution is successful. If it is not, children who did not testify often wish that they had done so, a regret that follows them into adulthood (Goodman et al. 1992b; Quas et al. 2005).
Respectful treatment also affects children’s views. It is an open question as to whether children feel they have received respectful treatment when they must be cross-examined by the very person accused of a criminal offense against them.
Defendant Pro Se Cross-Examination and Child Witness Accuracy
In addition to the potential emotional harm to children, having children cross-examined by the defendant may be counterproductive to fact finding, that is, to the truth-seeking function of a trial. It is widely acknowledged that, in general, children are not developmentally equipped for the challenges associated with cross-examination (Goldfarb and Goodman 2014). Cross-examination conducted by a defense attorney, especially when developmentally inappropriate questions are used, can result in decreased accuracy in their testimony (Myers 2017; Zajac et al. 2012). As seeing the defendant in the courtroom and cross-examination are two of the most distressing components of the legal process for children (Eastwood and Patton 2002; Hobbs et al. 2014), it is likely that being cross-examined by the defendant can compound that distress and adversely affect the accuracy and completeness of the children's reports
Moreover, at least one study demonstrated a risk of interviewing children with the person present who told the children to lie. Six- to 10-year-old research participants were told by their caregiver (i.e., parent or guardian) to lie about the caregiver’s transgression (i.e., stealing a book) and were later interviewed in the caregiver’s presence. The majority (56%) of the children lied, presumably to protect the caregiver or protect themselves from getting in trouble (Tye et al. 1999). Although it is an empirical question to be answered by future research, if the caregivers had actually interviewed the children, the lying rate might have been even been higher.
It is well established by empirical research that distress at time of memory retrieval, such as in a courtroom, can negatively affect the quality and veracity of memory reports. For example, distress impairs working memory (Oei et al. 2006). Distress at encoding strengthens memory, but stress at interview decreases performance (Quas and Lench 2007). Interviewing children in a courtroom (compared with a classroom) increased physiological distress and impaired memory accuracy (Nathanson and Saywitz 2003; Saywitz and Nathanson 1993). In a mock trial study, young children who testified live in court, as opposed to via CCTV, were more distressed and more suggestible when subjected to cross-examination in a courtroom (Goodman et al. 1998). Thus, distress in the courtroom is likely to inhibit accuracy and lead to greater suggestibility errors.
To be even more on point, researchers have examined the accuracy of children’s memory under conditions of cross-examination. For example, Zajac et al. (2016) asked 6- to 11-year-old children to play computer games with one of their parents. For half of the dyads, the parents coached their children to lie and falsely indicate the occurrence of two activities. For the remaining dyads, these two activities actually occurred. Children were later interviewed with neutral questions and cross-examination-type challenges. Of interest, neither questioning style resulted in answers from the children that discriminated between liars and truth-tellers: Accuracy of the child liars increased in response to cross-examination, but accuracy of the child truth-tellers had a corresponding decrease. To the neutral questions, children’s responses were consistent with their earlier responses regardless of whether or not those responses were truth or lies (see also Fogliati and Bussey 2014; Fogliati and Bussey 2015, Zajac et al. 2017). Thus, overall, cross-examination was not helpful.
Fortunately, there is also laboratory evidence that pre-interview practice and feedback with cross-examination questions can help 5- to 10-year-olds maintain accuracy (Righarts et al. 2013). However, we know of no study investigating whether such practice and feedback can help children maintain accuracy when the defendant is representing him- or herself, in which case the success of the training may depend on such factors as the children’s age, relationship to the defendant, extent of fear or intimidation involved, level of memory strength, loyalty feelings, and perceived consequences to the child, defendant, and family.
In any case, in terms of general interviewing techniques, there is an abundance of empirical research showing that children are more accurate and less suggestible when interviewed by a supportive interviewer compared to when interviewed by an unsupportive or neutral interviewer (Davis and Bottoms 2002; Goodman et al. 1991a; Hershkowitz et al. 2006; Klemfuss et al. 2013; Quas et al. 2004; Quas and Lench 2007; Saywitz et al. 2014; Saywitz et al. 2016). Indeed, during police interviews, unsupportive or intimidating questioning is associated with increased suggestibility and impaired performance (Davies and Wescott 1999). For children in general, higher heartrate during interviews (indicating increased distress) is associated with memory report deficits (Quas and Lench 2007). It seems reasonable to expect these effects would be even stronger with a defendant pro se, who, as the accused, is likely to be viewed by the child as intimidating. Researchers recommend that if interviewers want to obtain the best possible information from children, the interviewers should be warm and friendly and have an objective nonjudgmental stance (Cronch et al. 2006; Saywitz et al. 2016).
On balance, although child victims’ involvement in criminal cases is often stressful, it is not necessarily harmful in the long term. The real issue, then, is how best to accommodate children to give their evidence, minimize the distress they experience, and optimize their accuracy and credibility of report. As indicated supra, we can look to countries that do not have a constitutionally grounded right of defendants to confront and cross-examine witnesses to identify their procedures when defendants are pro se and perhaps to imagine modifications of such procedures that would be constitutionally permissible in the United States, at least in the instances in which individual child witnesses may be especially vulnerable.
Suggestions for Future Research
The research that we have reviewed provides considerable scientific evidence that seeing the defendant and cross-examination in the courtroom are negative experiences for many child witnesses (e.g., Eastwood and Patton 2002). In addition, the research suggests that being cross-examined by the defendant is likely to make the experience more traumatizing than it would be otherwise. Experimental (laboratory) study of the effects of pro se cross-examination on the emotional well-being, attitudes, and accuracy of vulnerable child witnesses who had experienced traumatic events raises troubling ethical issues.4 However, it is possible to conduct correlational or quasi-experimental research that would be of relevance. For example, a possible methodology would be to evaluate court transcripts in cases where defendants represented themselves and conducted cross-examination of their alleged victims.
Short of the real thing, laboratory and survey studies that ethically approximate cross-examination by a defendant or that examine relevant legal attitudes, respectively, may be feasible. Specifically, ethical research could be conducted on fact finders’ abilities to reach the truth in analogue studies in which researchers vary who conducts the cross-examination and the honesty of the child, as well as on children's legal attitudes and laypersons’ and legal professionals’ views of procedural justice. In laboratory studies, the purported cross-examiners of purported child witnesses might be mock defendants in comparison with intermediaries, such as attorneys or clinicians. Studies overall should take into account such factors as children’s age, gender, and ethnicity/culture, the type of crime, the child victim’s relationship to the accused, the aggressiveness of the cross-examination, the child victim’s expressed fears, and the trial outcome. Research is also needed on how clinicians and judges can best assess children’s vulnerabilities and resilience when facing the possibility of cross-examination by pro se defendants. Such research would help inform evidence-based decision-making about self-represented defendants.
Conclusion and Research-Based Recommendations
Implications for Children’s Personal Security
There are a number of research and legal implications of our analysis for steps to be taken to ensure the fulfillment of children’s right to personal security, especially to security in the psychological realm. Research is needed on children’s well-being and legal attitudes, fact finders’ abilities to reach the truth, and laypersons’ and legal professionals’ views of procedural justice when defendants (compared to intermediaries, such as attorneys or clinicians) cross examine alleged child victims. Such research should take into account such factors as children’s age and gender, type of crime, and children’s fears. Research is also needed on how best to assess children’s vulnerabilities and resilience when facing the possibility of cross examination by pro se defendants. Our principal recommendation for legal reform is to facilitate use of intermediaries to cross-examine children in criminal trials. A further legal implication is that when such practice is brought to the attention of appeals courts, including the U.S. Supreme Court, psychological research relevant to child witnesses and to children’s rights to personal security should receive proper weight in determination of the breadth of defendants’ Sixth Amendment right to self-representation. Consideration should be given to limitation of that right when it may adversely affect the state’s compelling interest in protecting child victims from increased short- and long-term trauma as a result of direct confrontation by the defendant in open court. In that regard, research on children’s typical responses to confrontation by defendants leads us to prefer a uniform rule to protect child victims. However, we recognize that U.S. legislatures and courts may be inclined to support a case-by-case determination of need.
For those who live in the United States, the question then becomes how to interpret the Constitution. Is it a static document, or does it evolve with the changing morals of the country? Can it be both just and humane by modern standards? Even when the ideal is to interpret the Constitution exactly as the writers intended, the interpretation is not always obvious (Dorsen 2005). The confrontation clause in the Sixth Amendment was written in large part to prevent the use of hearsay, depositions, or affidavits in place of face-to-face examination and cross-examination of the accused (Mattox v. United States 1895). If the Sixth Amendment of the Constitution were so interpreted, then defendants’ constitutional rights would not be violated by prohibiting them from personally cross-examining their alleged victims.
In the United States, when defendants wish to cross-examine their own alleged victims of sexual abuse, prosecutors are often required to present evidence that such cross-examination would cause extreme harm to the specific child in question (Arizona v. Padilla 2015). In this review, we have provided scientific evidence, albeit somewhat indirect, that pro se cross examination of child sexual abuse victims may be detrimental to many victims (Eastwood and Patton 2002; Goodman et al. 1992a, b; Quas and Goodman 2012) and can also be detrimental to the fact-finding purposes of the court (Myers 2017; Oei et al. 2006; Zajac et al. 2012).
Appointing an intermediary (e.g., an attorney) to conduct cross-examination of child witnesses can be beneficial to both the prosecution and the defense by alleviating children’s anxiety (e.g., Eastwood and Patton 2002; Hobbs et al. 2014; Quas and Goodman 2012) and increasing witness accuracy (Oei et al. 2006; Saywitz et al. 2016; Zajac et al. 2012), while comporting with laypersons’ view of procedural justice in cases involving child victims (Batterman-Faunce and Goodman 1993). We acknowledge, however, that such a proposal may pass muster under the U.S. Constitution only on the basis of a case-by-case determination of particularized need and that a relatively small subset of children might not be traumatized by conventional cross-examination by a defendant. We propose, however, that the default expectation in child victim cases should be for an intermediary to cross-examine the child rather than for the defendant to do so.
Another—in our research-informed view, much less preferable—intervention would be to use an intermediary to assist with cross-examination, in lieu of the intermediary’s conducting the examination in place of the defendant. In this case, the intermediary would object to developmentally inappropriate questions or intimidating questions and ask the defendant to rephrase. Research on this process involving a 4-year-old and a 13-year-old child shows promise in that mock jurors view the cross-examination to be of higher quality when an intermediary of this type was used (compared to no intermediary being present), no matter the age of the child in the study (Collins et al. 2017). Although we do not know how children would feel with an intermediary of this sort, this process may help provide at least some protection to children’s psychological security, while preserving the core of the accused’s legal rights as typically interpreted.
Overall, practices such as these would protect the Sixth Amendment rights of defendants to confrontation, while disallowing defendants from use of cross-examination to inflict emotional harm on child victims, adversely affect children’s legal attitudes, potentially undermine children’s testimonial accuracy, and violate children’s rights to personal security. In the U.S. criminal court system, Sixth Amendment rights at trial are fundamental but not absolute. Scientific research provides evidence to support the contention that these rights might be appropriately limited in cases requiring vulnerable child victims to take the stand at trial.
Terms vary and include “party in person,” “litigant in person,” “defendant pro se,” and “unrepresented defendant,” all of which indicate that the defendant has chosen not to be represented by an attorney.
Depending on the specific language, the Scandinavian term is Barnahus or Barnehus.
In some cases, children awaiting testimony have in fact been murdered (Waldman 1999).
Some extant experimental analogues to simulated investigations and courtrooms may be controversial. This includes studies in which parents have been “offenders” who in some experimental conditions have been instructed to encourage their children to lie to an interviewer; these studies, however, are conducted with safeguards to the children as approved by appropriate Institutional Review Boards.
The authors thank Alice Lustre, Lisa Ahlers, and Deborah Goldfarb for their feedback and consultation. We also thank Jack Wilenchik for inspiration and encouragement. Writing of this article was supported in part by grants from the National Science Foundation (No. 1424420) and the National Institute of Justice (No. 2013-IJ-CX-0104).
Any opinions, findings, conclusions, or recommendations expressed in this article are those of the authors and do not necessarily reflect the views of the National Science Foundation or the National Institute of Justice.
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