Leading Questions and Child Witnesses

Courts often allow leading questions of child witnesses on the theory that children need additional assistance while testifying at trial. Although the child witness is a long-recognized exception to the rule against leading questions, there is a considerable amount of recent scientific evidence suggesting that children should not be asked leading questions, either during investigatory interviews or during trial testimony. Contrary to the theories underlying the evidentiary rules, scientific research shows that the reliability of a child's testimony is much more complicated than simply determining whether a child knows the difference between lying and telling the truth. Children may be unable to encode information and form a memory, may not be able to communicate a memory accurately, or may be easily misled by questions that suggest an answer. Moreover, a young child's understanding of the truth may be distorted through coaching or suggestion, causing the child to believe that what he is saying is the truth when, in fact, the truth has been obscured.

Today, almost half the states allow children to provide courtroom testimony, regardless of the subject matter, assigning the jury the task of determining how much weight to give to the testimony. See S. J. Ceci & M. Bruck, “Suggestibility of the Child Witness: A Historical Review and Synthesis,” Psychological Bulletin, Vol. 113, at 408 (1993). As more children provide uncorroborated courtroom testimony, it is important that courts inform their proceedings with available scientific evidence. In this two-part article, we discuss various federal and state court decisions regarding the use of leading questions with child witnesses, scientific evidence regarding a child's ability to communicate, as well as issues to consider when opposing counsel calls a child witness to testify. We also argue that the current practice of permitting leading questions with children should be discontinued — that the child witness should be treated the same as all other witnesses in that leading questions should not be allowed on direct examination — or in the alternative, that safeguards must be in place to ensure the reliability of the testimony elicited by the child witness.