Numerosity in court: Attorneys’ questioning strategies and developmental changes in child witnesses’ responses

Child sexual abuse trials often depend on the testimony of the child victim, as physical evidence and other witnesses are often lacking. This reliance on the child’s testimony can pose a number of legally significant challenges, one of which concerns identifying how often the abuse occurred, that is, the abuse numerosity. Knowing how many times the abuse occurred is often critical for several reasons. It affects the formal number and types of charges in a case. In addition, the defense needs to know details of the allegation to mount a response and possible alibi. Courts themselves expect even relatively young children to be capable of estimating how many times abuse occurred (Lyon & Saywitz, 2006) and numerosity questions are routinely asked of children in court (See, e.g., R. v. R.W., 2006; U.S. v. Tsinhnahijinnie, 1997).

In contrast to the court’s expectations, developmental research on children’s numerosity abilities indicates that children often have difficulty reporting the precise number of times they’ve experienced prior events (Sharman, Powell, & Roberts, 2011; Wandrey, Lyon, Quas, & Friedman, 2012). This difficulty is also evident in legal settings: In the case of People v. Avila, 2001, Alejandro Avila was acquitted of molesting two nineyear- old girls. During the trial, one of the alleged victims was repeatedly questioned during her testimony about the number of times she was abused by Avila. After the acquittal, one of the jurors was quoted stating, “They weren’t consistent on their story. We know that they were young and we understand that they are children but the story was like did he touch you three times, yes, did he touch you five times, yes, did he touch you 50 times, yes. Everything was yes, yes, yes” (Riverside Press Enterprise, 2002). Two years later, Avila was re-arrested and ultimately convicted of raping and murdering 6-yearold Samantha Runnion (People v. Avila, 2005).

Given the obvious importance of numerosity in legal cases and children’s apparent limited abilities, it is of considerable interest to ascertain how attorneys, who are responsible for obtaining testimony from children, attempt to determine how often abuse events occurred and how well children can respond to these questions. My dissertation, conducted under the mentorship of Drs. Jodi Quas and Thomas Lyon, addresses this topic. Specifically, the study involves analyzing attorneys’ use of numerosity questions and children’s responses in a large sample of transcripts of children testifying in sexual abuse criminal cases. Before discussing some initial results, the study is situated in the broader developmental literature concerning children’s numerosity abilities and legal debates about interviewing children in forensic settings.

Developmental studies of children’s basic numerosity abilities for stimuli, such as words in a list or actions in a story, indicate that children are first competent at basic enumeration around age 5 (Connolly, Hockley, & Pratt, 1996; Hasher & Zacks, 1979; Ellis, Palmer, & Reeves, 1988), with continued improvements (e.g., with larger numbers, more complex stimuli) with age (e.g., Chalmers & Grogan, 2006; McCormack & Russell, 1997). In contrast, when children’s numerosity abilities for personal events is examined, even older children have considerable difficulty reporting accurately the precise number of times such events occurred. A study by Sharman and colleagues (2011) nicely demonstrates this difficulty. Four- to eight-year-old children experienced a classroom event once, six times, or eleven times. A week after the event (or last event), children were asked how many times it had occurred. Children who experienced one event were highly accurate in reporting just that. However, among children who experienced six events, only 9% reported the correct number, and none of the children who experienced it 11 times answered correctly.

In another investigation, my colleagues and I examined temporal memory in a legally important population, specifically, maltreated children removed from home because of substantiated maltreatment (Wandrey, Lyon, Quas, & Friedman, 2012). These are the types of children most likely to end up in legal cases and whose numerosity abilities may be critical. We asked the children, who ranged from 6 to 10 years, a series of numerosity questions about changes in their placement arrangements (i.e., foster care). Placement changes are not only salient and often highly emotional, but they occur at irregular intervals and hence may be somewhat similar to events about which children may be questioned in legal settings. We specifically asked children how many times they had experienced the placement changes and whether they had experienced them once or more than once, more than five times, and more than ten times. Across age, children had considerable difficulty reporting the exact number of placements (only 24% were accurate). This was true despite the fact that the actual number of placements was quite small for most children (the average number of placements was 3). When asked the estimate questions, children performed only slightly better than chance (50%), with a large percentage of children continuing to answer incorrectly. Overall, our study and Sharman et al.’s (2011) study cast serious doubt on the appropriateness of asking even older children numerosity questions about prior events.

Whether children “should” be asked numerosity questions and whether children are asked numerosity questions, though, are separate issues, and very little is known about how attorneys attempt to obtain numerosity details from children. Studies of attorney behavior have focused on the leading nature or complexity of phrasing of attorneys’ questions. Findings reveal, perhaps not surprising, that attorneys frequently ask closedended and complex (developmentally inappropriate) questions, particularly during cross-examination (Brennan, 1995; Davies & Seymour, 1997; Park & Renner, 1998; Walker, 1993; Zajac, Gross, & Hayne, 2003), Children, moreover, in response to these questions, have tremendous difficulty. They provide a high proportion of “don’t know” and ambiguous responses or they do not respond at all (Carter, Bottoms, & Levine, 1996; Perry et al., 1995; Zajac, Gross, & Hayne, 2003), perhaps because they simply do not understand what the questions are asking.

Whether attorneys would ask high proportions of closed-ended and complex questions when discussing numerosity is not known but quite likely. For instance, studies of forensic interviewers’ use of temporal questions with children (Guadagno & Powell, 2009; Lamb et al., 2003; Orbach & Lamb, 2007) indicate that numerosity questions are commonly asked by forensic interviewers, and that even these interviewers, who presumably have a sizeable amount of experience interviewing suspected victims, rarely follow-up or clarify children’s enumeration responses. Forensic interviewers did, however, ask more temporal questions of older than younger children (e.g., Orbach & Lamb, 2007), hinting that interviewers may have some general understanding of young children’s limitations, even though interviewers lacked awareness that even older children have difficulty with some types of numerosity questions.

In recognition of children’s difficulties, the NICHD Interviewing Protocol (Lamb et al., 2008) recommends that forensic interviewers abstain from asking directly how many times the abuse occurred and instead simply ask whether the abuse occurred more than once. Alternatively, numerosity can be estimated based on children’s responses to questions about separate enumerated events – specifically the first time, the last time, and the worst time. An interviewer could then calculate whether abuse occurred at least three times, which may be all that is legally necessary to determine in order to charge the defendant. Attorneys, though, likely have limited awareness of these potential strategies and may have substantially less knowledge about children’s development generally. This may lead to quite different behaviors when questioning children, including about numerosity, particularly among defense attorneys, who have different goals for questioning child witnesses (e.g., to discredit them or impeach their testimony) than do prosecutors.

My dissertation will examine attorneys’ strategies for questioning child witnesses about numerosity, children’s responses, and whether question and response patterns relate to trial outcomes. Approximately 228 child sexual abuse trial transcripts (69 acquittals, 131 convictions) involving child victims ages 5 to 15 years of age will be included. The testimony portion of the transcripts is being coded for attorneys’ questions about numerosity (e.g., “How many times did he touch you?”) and enumerated events (e.g., “When was the first time he touched you?”) and children’s responses to both types. Children’s spontaneous references to numerosity or enumerated events are also being coded. Numerosity questions are further coded for the topic of the numerosity judgment (i.e., sexual abuse event vs. non-abuse event), the form of the question (e.g., “how,” yes/no, forced choice), and the type of judgment asked about (i.e., number of events, people, items, or places). Because the vast majority of questions (87%) ask about the number of events, most analyses, including those here, focus on this large subset of questions. Children’s responses are coded as responsive or not (no response/” don’t know”), with all responsive answers that include expressions of uncertainty being flagged along with whether answers provide an estimate. Demographic information about the child, relevant case details, and trial outcome are being documented from other portions of the transcripts. To date, 148 transcripts have been reliably coded. These form the basis for the trends reported here.

First, simple frequency information about attorneys’ questions is quite informative: Attorneys asked on average about 12 numerosity questions per transcript, although the variability was substantial: from 0 to 71 numerosity questions. Although the total number of questions prosecutors and defense attorneys asked increased with children’s age, the number of numerosity questions did not. Thus, unlike interviewers, who as mentioned, asked more numerosity questions of older than younger children, attorneys did not appear sensitive to young children’s difficulties in terms of avoiding numerosity questions more so than with older children. Finally, the proportion of numerosity questions (out of the total number of questions asked) posed by defense attorneys and prosecutors was quite similar (.029 v. .026). As such, it does not appear that defense attorneys are strategically asking a large proportion of numerosity questions to confuse children.

Second, analyses focused on the topics of interest when attorneys asked numerosity questions, meaning whether attorneys asked numerosity questions about the sexual abuse event(s) or some other event. Defense attorneys asked more numerosity questions about non-abuse events than abuse events, whereas the reverse was true for prosecutors, who asked more often about abuse (see Figure 1). Surprisingly, even though prosecutors tended to focus more numerosity questions on abuse events, they still asked such questions about non-abuse events 40% of the time. This is surprising, as such questions are not likely to be legally needed, and, insofar as children have difficulty responding, prosecutors may be unnecessarily discrediting or confusing children witnesses while obtaining their testimony. Of course, this is not to say that questions about non-abuse events are always unnecessary. Such questions may be needed, for example, to establish the alleged victims’ relationship to the defendant. However, establishing the numerosity of non-abuse events is unlikely to be legally necessary in most circumstances.

Third, of interest was how attorneys phrase questions about numerosity. Questions were divided into “how many” questions, which are more difficult (e.g., “How many times did he touch you?”), and other formats, which do not force the child to generate an exact number (e.g., “Did it happen more than 5 times?” “He touched you on your private three times, right?”). Prosecutors asked a larger percentage of “how many” questions than did defense attorneys, but primarily when questioning older rather than younger child witnesses (see Figure 2). Defense attorneys did just the opposite. They asked a greater proportion of the difficult “how many” questions to younger than older child witnesses, suggesting that they may be strategic in their efforts to discredit young victims.

Fourth, turning to children’s responses, when considering how well children could answer the more difficult “how many” questions compared to other types of numerosity questions, results confirmed the former’s difficultness. Children were much more responsive when questions did not require children to generate a specific number (children provided a response to 91.5% of the questions) than when questions asked “how many” times a particular event occurred (children provided a response to 73.2% of the questions).

Providing an answer, though, does not necessarily mean that the response is correct or even plausible. Accuracy could not be determined in the current study, but, for many responses, children’s uncertainty (e.g., “I think”), and estimations (“about,” “almost”) could be determined. All of these latter indices, despite not being able to address the issue of accuracy, provide important insight into whether children understand questions and are thoughtful and logical in their responses, all of which are critical, in theory, to accuracy. Most children expressed no uncertainty in their responses, with younger children being even less likely to express uncertainty than older children (see Figure 3). Estimates are primarily relevant when children are asked “how many” questions. When children answered these questions, they, for the most part, provided an exact number. As with uncertainty, younger children were less likely to include an estimate than were older children (see Figure 4).

At least two issues are relevant to these trends: One concerns the mechanism underlying the developmental patterns. Older children may have been more likely to express uncertainty or include estimates because of their greater meta-awareness of what they do not and should not know. Alternatively, the older children may also have felt more comfortable expressing their uncertainty or not concretely answering how many questions. Which pattern is correct has implications for whether and how to address younger children’s decreased use of uncertainty and estimates. The other concerns the consequences of younger children’s lack of use of uncertainty or estimates. If jurors recognize situations where such hedges might be appropriate, young children may appear incompetent because they give implausibly exact and certain responses to questions that should be difficult to answer.

Subsequent analyses will be conducted on the full sample once coding is completed. These will examine attorneys’ questions about enumerated events, which as mentioned, may allow the attorney to obtain, indirectly, critical information about numerosity (e.g., by obtaining details about a first time, second time, and third time, it can be assumed that abuse occurred at least three times). These will also investigate developmental differences in children’s spontaneous reports of numerosity and enumerated events. Finally, the combined associations of attorneys’ use of numerosity questions, and children’s responses in relation to trial outcomes will be explored. Although still preliminary, findings already highlight several potential problems with the manner in which attorneys ask child victims numerosity questions in court. For one, prosecutors are asking quite a few numerosity questions, including many about non-abuse events, the latter in particular may be at best unnecessary and distracting and at worst detract from the prosecutor’s goal of proving the defendant’s guilt. Moreover, by using such questions, prosecutors may be indirectly suggesting that they are appropriate to ask, which then justifies defense attorneys to ask these questions as well. A second problem is that poor or limited responses from children, even if perfectly justified based on extant research on temporal abilities in children and adults (Bradburn, 2000; Friedman, 2004; Sharman, Powell, & Roberts, 2011; Wandrey, Lyon, Quas, & Friedman, 2012), may undermine their credibility if jurors are not sensitive to the difficulty of these questions. Future work should examine how jurors respond to attorneys’ use of numerosity questions and children’s responses. I would like to express my gratitude to Division 7 for providing me with a dissertation grant to help fund this project, to my mentors, Drs. Jodi Quas and Thomas Lyon, for their wonderful guidance and support, and to my stellar research assistants, Jennifer Mascia and Janki Merai, for their invaluable help with this project.

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