Exploring intermediary models in the New Zealand context

1. Exploring intermediary models in the New Zealand context Kirsten Hanna, Emma Davies, Emily Henderson & Linda Hand

2. The problem • Courtroom questioning of child witnesses • Question type • Complex syntax, vocabulary, etc • Defence: So what I’m putting to you is that you’ve discussed this allegation with your mother prior to making it. What do you say? (12-year-old witness) • Prosecutor: You were also asked some questions and it has been suggested to you that when you were raped you didn’t say no? Child: Yes. (16-yar-old witness) • Traditional techniques of cross-examination

3. A solution: Intermediaries in England/Wales • Intermediaries in England/Wales • Pre-trial assessment of child’s communicative competencies • Pre-trial ground rules hearing based on intermediary’s assessment report (judge, counsel, intermediary) • At trial, the intermediary monitors counsel’s questions and indicates when problems arise • Mandatory training/accreditation • Independent, neutral officers of the court

4. A solution: Intermediaries in England/Wales • Intermediary interventions Prosecutor: It was about 1pm. What was the weather condition? Was it sunny, rainy, foggy, what was the situation, what was it like? Intermediary: What was the weather like? Defence: One time, the once, a different time from the second incident? Intermediary: How many times have you been to B’s house? Plotnikoff& Woolfson (2007) • Intermediarieshighly regarded—no threat to the defendant’s right to a fair trial • A more interventionist model?

5. Mock examination: Model Topic-by-topic model • Pre-trial • Both counsel brief intermediary (separately) on areas of challenge/exploration grouped into topics • At trial • Intermediary poses questions under each topic, conferring with counsel before going to next topic (e.g., to receive further instructions)

6. Mock examination: Method Mock trial at Auckland District Court • Actors • Judge, prosecutor, defence lawyer took respective roles • Child witness (role-played by forensic interviewer) • Intermediary (speech/language therapist and forensic interviewer) • Observers (mock trial 1) • Judge, two prosecutors, two defence lawyers • Legal scholar • Former children’s commissioner • Researchers • Eliciting participants’ perceptions: • Mock trial 1: Facilitated group discussion and individual, semi-structured interviews (n=13) • Mock trial 2: Facilitated group discussion • Observers (mock trial 2) • Three judges, two prosecutors, two defence lawyers • Two forensic interviewers • Ministry of Justice policy analyst • Researchers

7. Mock examination: Expectations of model Pros Cons • Better questions and sequences  better evidence • Better preparation • Clearer evidence (topic-based) • Better monitoring of questions • Better perceptions of defence • Breaks • Better environment • Longer cross-examination • Interpersonal conflict • Risks to defence counsel’s ability to fulfil duties to the client/risk of appeals

8. Improving cross-examination: Appraisal • “I was impressed with [the specialists’] ability to put things into child-friendly language. I think most of us lawyers think that we can do that … but seeing it being done by the real specialists was impressive” (Defence lawyer) • “…can’t we be the first country in the world to have lawyers that ask really good questions?” (Defence lawyer) • “You actually have to tell lawyers there’s a problem before you want to fix it and provide an overlay of your solution to the problem when the lawyers haven’t been told” (Defence lawyer)

9. Key issue • What would a “best practice” cross look like? • Distinguish between the formand proper function of cross. • Develop a form consistent with its proper function. • Can cross-examination really be changed? Yes. • “…we must rid ourselves of any straight jacketed conceptions of the form cross examination must invariably take” (Lord Chief Justice of England and Wales, 2011).

10. Last word: Defence counsel • “The whole point of the exercise is that there should never be a question which is unfair to a child witness. … And so that’s why [cross] has to be recrafted. And it’s not about the theatre and it’s not about … confusing the witness. The whole idea is that we are trying to establish a system … where the witness is not confused. That’s the point.”