EXAMPLES OF TESTIMONY

1. For Checklist item #5: Did I use easy words instead of hard ones?

Acquisition of "before" and "after"

In this example, a young child is being questioned by a judge in a case involving contributing to the delinquency of a minor by showing obscene video material to children aged 5 to 9. The attempt was to prove through this childís testimony that the offense occurred on December 28.

1. Q. Do you know what date this happened on?
2. A. No.
3. Q. Was it BEFORE Christmas, or AFTER Christmas?
4. A. BEFORE Christmas
5. Q. Are you sure this happened BEFORE Christmas?
6. A. Yes
7. Q. What holiday comes AFTER Christmas?
8. A. I donít know.
9. Q. What did you get for Christmas?
10. A A Nintendo set.
11. Q. Do you remember if you had your Nintendo on the day you watched the movie at [Mr. Jonesí] apartment?
12. A. I played it that morning. [Which would have been Dec. 28.]
13. Q. When did you get your Nintendo?
14. A. Christmas.
15. Q. Have you ever had more than one Nintendo set?
16. A. No
17. Q. And you got that Christmas?
18. A. Yes
19. Q. Well, if you did not have your Nintendo game BEFORE Christmas, [and the child is claiming that this incident happened before Christmas}, how were you able to play it on the day you were at Mr. Jonesí apartment?
20. A. I got my Nintendo Christmas morning.
21. Q. Listen carefully now. What number comes BEFORE the number 5?
22. A. Six

2. For Checklist item #8: Did I assume that because a child uses a word, he or she understands the concept it represents?

Words that express relational concepts

1. Size

   Cross-examination of a 5-year-old girl who had been the primary witness for the State in the three trials for the murder of a child by three children.

   Q. How tall is Jim? Is he - Well, let me look. Is he taller than me?
   A. Yeah.
   Q Okay.
   A. About taller than you, above your head.
   Q. Like about this high?
   A. Yeah.
   COUNSEL: I think the record - oh -
   A. Heís big.
   Q. Real big?
   A. Big.
   Q. Bigger than this?
   A. Heís that big.
   Q. That big.
   COUNSEL: Iím about five eleven, Judge. I guess thatís about a foot above my head. Could the record reflect that?

2. Time:Dates

   Voir dire by the court of a 5-year old child, taken from the same trial as above.

   Q. Okay. Do you know what your birth date is? I bet you know that?
   A. No.
   Q. When were you 5 years old?
   A. I am 5.
   Q. You are 5?
   A. (Witness nods).
   Q. Okay, when will you be 6?
   A. When my birthday comes.
   Q. Ask a silly question, get a silly answer - or get a straight answer. Okay. How long ago did you have your birthday?
   A. I didnít HAVE my birthday.

3. For Checklist item #14: Did I avoid asking the child about abstract concepts, like ìWhat is truth?î

Confusion between what is CALLED a lie, and what is CALLED a mistake.
(Example taken from a Virginia case: Kiracofe v. Commonwealth; girl 6 years old)

Q. Let me ask you this, Linda. When you said a minute ago to Mr. Conrad that you didnít know whether you would or would not tell the truth, what did you mean by that?
A. I donít know whether I would tell the truth or not.
Q. Would you purposely tell a lie, or make a mistake?
A. Thatís right.
Q. Which is right? That you might purposely tell a lie?
A. Huh uh.
Q. Or that you might make a mistake?
A. (Nodded head).
Q. I want to be perfectly sure what you mean. Do you mean that you would not purposely tell a lie?
A. No
Q. Of course anybody can make a mistake. For instance, if you ask me what time it is and I would say ì11:00 oíclockí and I would be wrong, but that wouldnít be a lie because I thought it was 11:00 oíclock. That is just a mistake. Did you mean that kind of mistake, or a deliberate mistake on purpose? That is, would it be a deliberate mistake or accidental?
A. Accidental.
THE COURT: The Court will accept her as competent.

4. For Checklist item #17: If the childís answers were inconsistentÖ

1. The following example of confusing testimony - the witness is a 4-year-old - is taken from Saywitz (1988), and it illustrates two of the strategies young children follow when something goes wrong for them conversationally:
1. repeating the end of the prior sentence*
2. giving whatever information they have that seems to them to relate to the topics**

   Q. When you were at your grandmaís house with your daddy, whose mamma is your grandma?
   A. Grandma Ann.
   Q. Is she your daddyís mamma?
   A. Huh?
   Q. Is she your daddyís mamma?
   *A. Daddyís mamma.
   Q. Is grandma daddyís mother?
   **A. She has a boyfriend, two boyfriends.

3. for WH, if the WH word is not fully acquired, treating the Q as if an acquired word had been used

   Ex: Child is shown a picture of a girl eating an apple at a lunch table. She is asked:
   Q. Where is the girl eating?
   A. An apple.

   (She responds as if WHERE were WHAT, because of the contextual and semantic features of the verb ìeatî: e.g., children associate ìeatingî with what they eat before they associate if with where they eat.) (See Tager- Flusberg 93)

2. Example from When the Victim is a Child (Whitcomb 1992). 5-year old sexual abuse victim under cross examination:
1. Q. And then you said YOU PUT your mouth ON his (Daddyís) penis?
2. A. No
3. Q. You didnít say that?
4. A. No
5. Q. Did you ever put your mouth on his penis?
6. A. No
7. Q. Well, why did you tell you mother that YOUR DAD PUT his penis IN your mouth?
8. A. My brother told me to.
9. REDIRECT: (DA)
10. Q. Jennie, you said that you didnít put your mouth on daddyís penis. Is that right?
11. A. Yes
12. Q. Did Daddy put his penis in your mouth?
13. A. Yes
14. Q. Did you tell your mom?
15. A. Yes
16. Q. What made you decide to tell?
17. A. My brother and I talked about it, and he said I better tell or dad would just keep doing it.

5. For Checklist item #10: Did I keep my questions and sentences simple? Did I try for one main (new) thought per utterance?

Unpacking complicated syntax

The following question was asked during cross-examination of the 5-year-old on the subject of a prior ID which she had made to Martha, a social worker.

Now, Suzy, with respect to the second group of pictures in which you identified previously as showing the people who hurt Doug, were you telling the truth when you said that?

Breaking the question into shorter questions that have just one NEW main thought each accomplishes two goals:

1. Makes it understandable
2. Pins a Yes or No answer clearly to one proposition

What follows represents only one possible breakdown; the fact that the child was under cross-examination explains the highly leading form the questions take.

S1) Now Suzy, you've seen a lot of pictures, haven't you?

S2) And this bunch here [handing her the pictures]: you've seen these pictures before, too?

S3) They are pictures of some people, aren't they.

S4) You talked to Martha [social worker] about these people, didn't you.

S5) Did you tell her that these people hurt Doug?

S6) Are these the people who hurt Doug, Suzy?

Beside its overall complexity, the original question has many other problems, some of which are noted by the highlighted portions:

• Boldface: Adult vocabulary
• Underlining: sophisticated syntactic forms. The phrase "pictures in which you identified previously", because of the insertion of the preposition "in" is simply ungrammatical.
• The pronoun "that" has no clear referent: to what does "that" refer?
• It buries the most significant proposition (that she had identified the murderers) deep in the middle of the question, where it could be missed by the child.

6. For Checklist item #11: Did I avoid asking "DUR/X" questions?

Ex: Do you remember saying that Jack had the knife when Doug got hurt?
(13 words, 4 propositions)

Do you remember [X]

Saying [Y]

(that) J had the knife [Z]

when D got hurt?

PROBLEM: Which one of these propositions is being "answered" by a yes, or a no?

7. For Checklist item #16: Were the child's responses to my questions, answers to my Questions? Am I sure?

Below are more "DUR/X" examples demonstrating uncertainty of communication because of the syntax of the question. The underlines indicate which part of the question was responded to (not "answered") by the child.

1. (Topic: a psychological interview done with the 5-year old child after the murder.)
Q. Do you remember [Martha: social worker] asking you, "Do you know who Mark is?"
A. Yeah.
Q. Do you remember her asking you, "Do you know who Jimmy is?"
A. Yeah.
Q. And you remember her asking that "Were Mark and Jimmy with Doug that night?"
A. Yeah.
Q. And were they with him that night?
A. Yeah.
Q. And that's the truth, isn't it?
A. Yeah
Q. Do you remember when Don [psychologist] asked you, "What color was their skin, like mine or like Martha's?"
A. Like yours.
2. (Same topic as above)
   Q. And Martha [social worker] said, "I sure would like to get those boys. I don't like it when someone hurts my friends. You're my friend. [Note the unilateral declaration that the child is Martha's friend. See Checklist item #21] Can you tell me who Mark is?" Do you remember that question?
   A. Mark is one of Doug's friends.
3. (Same topic as above)
   
   Q. First they asked you to draw a picture of yourself, didn't you - didn't they?
   A. Yeah.
   Q. And you drew a picture of yourself with a smiling face, didn't you? Do you remember?
   A. No.
   Q. You don't remember?
   A. A sad face.
4. Topic is police interview following the psychological interview above.)
   Q. Do you remember saying that Jake had the knife when Doug got hurt?
   A. No.
   Q. Was that the truth?
   A. No.
   Q. You didn't say that, right?
   A. No
   Q. Or - You didn't say it, or you don't remember it?
   A. I didn't say it.
5. (Topic: Same as #d above.)
   Q. Do you remember telling T.J. that Jim pulled Doug's shirt up and dug at his eyes with a spoon?
   A. No.
   Q. You don't remember that?
   A. No
   Q. Was that not true?
   A. No
   Q. You just don't remember.
   A. I don't remember what you said.
   Q. Okay, I'm - Let me - Let me - I may have confused you the last question because my - my friend here, Mr. Nesbitt, he told me I confused him and I figure if I confused him I might have confused you.

8. For Checklist item #13: Did I give the child the necessary help in organizing his or her story?

Example illustrates the difficulty children have 1) in providing a clear description - a necessary component of stories, and 2) accommodating to the lack of understanding on the part of a listener. Child is 5 years old.

Q. Do you remember telling them on that date that Mark was white and Jim was black?
A. And Chuck was mixed.
Q. Oh, I see. Chuck was mixed. What do you mean by "mixed"? Is that -
A. White and black.
Q. Okay
A. -- is mixed.
*Q. And it isn't - It isn't like this, like if you took a line and put it in the middle, half white and then half black on this side, is it?
A. No
Q. It means somebody who's lighter colored?
A. His whole face is mixed.
Q. Okay. I'm not quite sure I understand "mixed." Do you mean - Do you mean light - a lighter color, closer to mine but still darker than me?
A. Mixed.
Q. Mixed up on their face?
A. No
Q. Okay. Tell me what you mean. I'm not - I'm sorry.
A. I - I mean how people's face is. They're mixed.

[NB: "Purposely" is a tough adverb. Much better to say, "on purpose".]

9. For Checklist item #20: Am I gathering information, or am I doing therapy?

1. Trial version of a portion of a psychological interview done with the previously referenced 5-year-old child witness to the murder of a child. This passage is also shown under 4b above.
   Q. And Martha [social worker] said, "I sure would like to get those boys. I don't like it when someone hurts my friends. You're my friend. Can you tell me who Mark is?" Do you remember that question?
   A. Mark is one of Doug's friends.
2. Original version of above passage as reported in the transcript of the psychological interview.
   Q. I sure would like to find those boys that hurt Doug, because I don't like when anybody has hurt my friends. You're my friend, aren't you? Did you know that I love you, huh? Yeah, I sure do.
   A. [Inaudible]
   Q. Suzy, can you tell me who Mark is?
   A. No.

1. Kiracofe v. Commonwealth, 198 Va 833 (1957).
2. SAYWITZ, Karen J., 1988. The credibility of child witnesses. Family Advocate, Vol. 10, No. 3, 38-41.
3. TAGER-FLUSBERG, Helen. 1993. Putting words together: Morphology and syntax in the preschool years. In Jean Berko Gleason, (Ed.), The Development of Language, 3d Ed., pp. 151-193. NY: Macmillan.
4. 4. WHITCOMB, Debra, 1992. When the victim is a child. National Institutes of Justice, Washington, D.C.: GPO.

1. Objections:
1. Not developmentally appropriate for this child
2. F.R.E. 611
• Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
1. Make the interrogation and presenation effective for the ascertainment of the truth (which cannot be done if the witness does not understand, and cannot be SHOWN to understand, the question).
2. avoid needless consumption of time,
3. protect witnesses from harassment or undue embarrassment (both of which result from being asked accusatory, repetitive, and incomprehensible questions by large, powerful adults in a formal, forbidding setting.)
• Form of the question [inherent in F.R.E. 611 (a)]
1. Two questions in one
2. Too long to be comprehended/Too many ideas in one question
3. Front-loaded question, requiring a heavy load on short term memory
4. Too complex in structure: embedding (ex: sentences within sentences), passives, some hypothetical, etc.
5. A restricted choice question (giving 2 or more options, connected by 'or." That kind of Q can be heard by young children as a Yes/No question. Research shows a slight danger that the child might pick one, whether either option is correct or no.)
3. F.R.E. 403
• …evidence may be excluded if [there is] danger of ..confusion of the issues, or misleading the jury…
1. See a-e above: Answers are evidence; but answers follow questions. If a question cannot be understood, then the child will be confused and the jury may well be misled by the child's response.
2. Beyond child's cognitive capabilities (incomplete list)
• requires full understanding of concepts such as time, age, size, kinship,
• too abstract
• requires comparison and contrast
• requires understanding cause and effect
• requires reasoning beyond the capacity of the child
• requires sorting out Q's & A's asked in the past from Q's being asked now (ex: counsel reading from a deposition)
• asks children under 10 to define or explain truth and lies
2. Tactics
1. Speaking objections: "Your honor, I'm not sure the child understands the question." "May I ask counsel to rephrase the question/ask that the child repeat the question?" "May I voir dire the child on his/her understanding of the question/ask the child to tell us what he/she thinks the question was?"
2. Take notes; rehabilitate on redirect.

The test for determining whether a child is competent to testify as a witness is well established in those states which require competency voir dire. It is typically expressed as follows:

The child must be found to have sufficient mental capacity to:

1. Observe the incident;
2. Remember the observed facts until the time of trial;
3. Communicate the observed data accurately at the trial;
4. Possess a consciousness of the duty to speak the truth
>
(Charles E. Friend, The Law of Evidence in Virginia, 3d ed. Sec 54)

What follows is a revised prototype for a voir dire which was first developed in 1990 as a response to judges' request for some "Language" with which to explore competency issues with children. Its intent is to provide assistance to judges and attorneys in assessing capacity in accordance with the above standards with minimal risk of confusing a child. These questions are designed to explore necessary legal concepts in age-appropriate language which children of normal cognitive and linguistic development, and general life experience, should be able to understand. They are offered, however with two caveats:

1. each child is different; and
2. the language used should fit the child and the situation.

In recognition of varying degrees of cognitive and linguistic maturity in children, two versions of the questions are given. Format I is intended for children of elementary school age (7 - 12); Format II is for children age 6 and under, and can also be use for children of any age who appear to be confused, or frightened, or who have a developmental delay.

These questions, and the follow-up questions that appear in parentheses, are intended ONLY as a GUIDE; they have not been tested empirically, and it is not suggested that all of them are necessary in order to elicit essential responses. Neither is it suggested that if a child is unable to provide answers for all of the questions, that child should be found incompetent. It is suggested, however, that whatever personal deviations are made from this guide, an attempt be made to follow its model: grouping like topics together, introducing new topics as they arise so as to facilitate understanding; and using questions that are as short as possible, and words that are as simple as possible.

It may be worth mentioning here, too, that a child who is frightened, intimidated, or who has had no preparation for the experience of giving testimony, is less likely to be able to access his or her memory for past events. So a calm demeanor and tone of voice, even a smile, are more than cosmetic: they are tools for gaining information.
[NB: Questions in parentheses are suggested follow-ups.]

*with grateful acknowledgment to Judge E. Preston Grissom for his assistance.

FORMAT I: questions Designed to Explore Competency for Children of Elementary
School Age

1. [Appropriate greeting] My name is_____, and I am going to be asking you some questions. Let's start with your name: What is your name?
2. Will you spell your name for me, please?
3. Where do you live? (What is your address in [insert name of town/city…]?]
4. Do you live in a house, or an apartment, or what?
5. OPTIONAL: Tell me something about where you live - what it's like.
6. Did you live in some other house/apartment/X before this one?
   [If Yes: follow up with appropriate questions about where.]
7. Who lives in your house/apartment/X?
8. What are their names?
9. Anyone else live there? [If Yes: Who?]
10. How old are you?
11. When were you born? When is your birthday?
12. Do you go to school? Where?
13. [If home-schooled, go to #15: if not (and if necessary)]: What's the name of the school?
14. How do you get to school every day?
15. What grade are you in?
16. Do you have a favorite subject in school - something you like to learn about best?
17. [If Yes to #16]: Tell me about it: Why is it your favorite?
    [If No]: No? Well then, tell me what you like to do when you aren't in school.
18. When you have a birthday, do you ever have a party, or do something special?
19. [If Yes to #18]: Do you remember what you did on your last birthday?
    [If Yes]: What did you do? Tell me everything you can remember about that day.
    [If No]: No? Well, how about if you tell me about some special day that you remember, like a holiday, or vacation, or something you did with your friends. Tell me as much as you can remember about that day. [Avoid mentioning religious holidays. Some families do not celebrate them.]

20. Let me ask you about something else now. Before you came to court, did someone talk to you about what to say? [If Yes]: What did he/she/they tell you?
21. [If answer is a variation of "told me to tell the truth"]: That's what I want to talk about: telling the truth and telling lies. [Go to #22.]
    [If answer is something else, follow up appropriately. Then]: What I want to talk to you about now is something very important: telling the truth and telling lies. [Go on to 22.]
22. Let me ask you something first. Who brought you here to court today?
23. So if someone said [NB: Do Not use, "If I said] that [child answer] brought you here today, what is that: a lie, or the truth?
24. What if someone said that [someone else known to child/in courtroom/popular fictional character] brought you here? Is that the truth, a lie?
25. Is it a bad thing or is it a good thing to tell a lie?
26. Why is that?
27. What can happen when people tell lies?
28. Has your mom or you dad [other primary caretaker] talked to you about telling lies?
    [If Yes]: What did he/she tell you?
29. What happens at home if you tell a lie to your mom and dad/[other] and he/she finds out?
    [NB: Avoid asking if child has an idea of what could happen if he/she tells a lie in court.]
30. [OPTIONAL] what about at school? What happens there?
31. I have something else to ask you, [child's name]. Do you know that a promise is?
    [Regardless of answer]: If I promise you that I will do something for you, am I supposed to do it?
32. What about you? If you promise me that you will do something, are you supposed to do it? [If Yes, move to #33, If some other answer, inquire]: Tell me what you mean by that.
33. [If applicable]: A few minutes ago, the [bailiff/clerk/whoever] - that man/woman right over there - asked you to raise your right hand. And then he/she asked you if you would tell us the truth today. And you said, "Yes." When you said, "Yes," did you mean that you promise that you will tell the truth? [Avoid running these sentences together as you speak. Children need time to process.]
    [If Yes]: Will you do that?
    [If some other answer]: Tell me what you mean by that.
34. Let's talk for a minute about answering questions. If you don't know the answer to a Question, do you know what to do?
    [If Yes]: What should you do? [If "Say I don't know"] Good. [Go on to 2nd sentence in #35.] [If No, go on to #35.]
35. Well, there's something I need to tell you about answers. When you don't know the answer to a question, you don't have to guess. It's O.K. for you to say, "I don't know," if you really don't know. [Brief pause] And it's O.K. to say, "I don't remember, "if you really don't remember. But it's not O.K. to guess, or to make something up. And it's not O.K. to say something that is not true. Do you understand that? [Wait for answer.]
    [If Yes, continue; if No, go over rules again, then:] O.K. Let me hear you tell me what the rules are here about guessing. And what about making something up? And if you don't remember? [Wait for responses, and correct, if necessary, or affirm if correct. This last step is essential in determining whether the child really understands what you've said.]
36. We're almost finished. Just a couple more questions. Do you know why you are here today, [child's name]?
    [If Yes, inquire, and continue as in "No" answer.]
    [If No]: Well, one thing you are here for today is to answer some questions [if appropriate, continue:….about _____]. And another thing you are here for is to do a job. Everyone here today has a job to do, even you. Your job is to do what I just told you a minute ago: to tell the truth, and not guess. Your job is to answer all the questions the very best that you can. [Brief pause] And if you don't understand what the question means, you tell us, O.K.? We'll try to say it in different words.
37. O.K. Last questions: Will you promise me, [child's name] that you will tell the truth today, and not guess about anything? (Good.) And will you promise me that you won't tell any lies? (Good.)

Format II: Questions Designed to Explore Competency for Children Below School Age*

*It is important to note a few things in connection with the questions suggested below.

> Pre-school children's ability to recite autobiographical facts (e.g., full name, age, address), their ability to recite cultural lists (e.g., numbers, the alphabet, days of the week, months of the year), or to do things like name colors, is largely dependent on the degree of exposure to these facts that the children have experienced in their everyday lives. Some parents are very active in teaching their children these things; some are not. In any case, the ability of children of any age, pre-school or not, to recite these lists is in no way connected to their ability to remember events accurately, nor is it related to the ability to connect an act to a particular date, time, frequency, or duration.

> There are a lot of questions here, and they don't all have to be used. A voir dire of this length may be particularly difficult for a 3-year old. The younger the child, and the fewer the number of questions asked, the better. Young children's attention span is very short, and the longer that a voir dire goes on, the greater the likelihood for responses that don't reflect children's true competency.

> A word about the phrasing suggested in the following questions: You will notice that usually when you change a subject, I suggest that you do so explicitly ("Let's talk about X now…"). There are two reasons for that kind of framing: 1) naming the topic focuses attention; and 2) children are not as adept as adults at shifting from topic to topic mentally. You will also probably notice what seems to be a great deal of redundancy in the line of questions. Besides framing, redundancy increases the chance that you and the child will be talking about the same thing at the same time, which is, of course, essential if you expect to get accurate information. And so is speaking slowly. That includes not running several sentences/questions together as if they were one, especially with the younger children.

A. Capacity to Observe, Remember, and Communicate

1. [Appropriate greeting] My name is _____. What's your name? (Is that your whole name? What is your whole name?) [If child is not familiar with "whole name"]: Do you have some more names?
2. Do you have some brothers and sisters? (What are their names?)
3. What is your mother's/mommy's name? [If answer is "Mommy", etc.]: Dies she have another name? [Pause} How about your dad/daddy? [NB: avoid "Father"] What is his name?
4. Where do you live? [If answer is something like "at home"]: O.K. Do you know your address: like the name of the street you live on? [Wait for answer] How about the name of your town/city? Do you know that?) [Don't expect answers to these address questions.]
5. How old are you, [child's name]?
6. Do you know when your birthday is? (Prompt: Like in January, or February?)
7. What you did on your last birthday? [If child does not respond, move on to #8.]
8. Did you do something special that day? [Pause] Tell me about your last birthday. I'd like to know about it. [If child does not respond, move on to #9.]
9. Let's talk a little bit about things you do every day. First, you get out of bed in the morning, don't you. What do you do next? [Pause] (Prompt: What happens at you house/apartment/in the morning?)
10. 10. Do you stay at home all day long?
    [If Yes]: Who stays at home with you?
    [If No]: Where do you go?
11. Do you watch T.V. sometimes?
12. Do you have a favorite T.V. show/program: one that you like the best? (What is it?)
13. What do you like about [name of program child mentions]?
14. Tell me something about that show/program. Who do you see on [name of the show]?
15. What happened on the last [name of program] that you saw? Do you remember? (Prompt: Like what did [insert any name/names the child has given you; or say "the people"] do?) [Do not expect full answers to these last three questions.]

B. Consciousness of the Duty to Speak the Truth

16. Let me ask you something else now. You know you came here to talk to me/us about something important. Well, did someone tell you what to say? (What did he/she/they tell you?)
17. [If answer is a variation of "told me to tell the truth"]: O.K. That's what I want to talk about"
    telling the truth. [Go to #18]
    [If answer is something else, follow up appropriately. Then]: What I want to talk to you about now is very important: I want to talk to you about telling what's real. [Go on to #18.]
18. Let me ask you something first. Is it snowing in here?
19. So if someone says [NOT "If I say"] it's snowing in here, is that right/real/true, or wrong/not real/not true/a lie? [NB: children 7 and under equate facts/reality to the truth, non- facts/unreality to a lie.]
20. Is it a bad thing or a good thing to tell a lie?
21. What happens at home if you tell a lie to your mom or dad/other?
22. O.K.[child's name], now I want to talk to you for a minute about promises**.
    What if mom/dad promises to buy you some ice cream. What does that mean? [No pause] Is she/he supposed to buy your ice cream, or what? [You may get some answers here about real life actions on the part of parents that will show you clearly that children understand, "But you promised!]
23. Well, what about me? If I promise you that I will do something for sure, am I supposed to do it?
24. And what about you? If you promise me that you will do something for sure, are you supposed to do it?
    [If the child says "No" to #23 or #24, follow up with]: No? Tell me about that.
25. [Only if applicable; otherwise, move to #26]: A few minutes ago, that man/woman over there [point] asked you to raise your hand. And then he/she asked you if you would tell us the truth today. And you said "Yes," didn't you? [Pause} Well, when you said "Yes," that was like a promise that you'd only tell us what really happened. So will you do that? [Pause] Will you tell us only things you know for sure? [Respond appropriately] And you won't tell us any lies? (Good.)
26. 26. Now, let me ask you something else; What do you think [ child's name]? Do I have a dog at my house?
    [If answer is, "I don't know"]: That's a good answer, because you really don't know. So if we ask you a question, and you don't know the answer, what are you going to say?
    [If child responds, "I don't know"]: Good.
    [If a child doesn't respond, say again]: You're going to say, "I don't know, O.K.? (Good.)
    [If answer is "Yes" or "No," regardless of whether the answer is correct or not]: How did you know that? [ Pause, and then adapt following to response]" Well, I'll bet you guessed. Sometimes, we guess when we really don't know the answer. But today, we don't want you to guess. O.K.? [Pause] And we don't want you to make anything up. You don't have to. Just tell us what you really know. That's what we want to hear. [ Pause} So if you don't know something, just say, "I don't know." That an O.K. answer. Will you do that? [Respond appropriately.]
27. Do you know why you are here today, [child's name]?
    [If Yes, inquire. Whether response is Yes or No, continue with #28].
28. Did you know that you have a job to do here today? [No pause] Your job is to do what we just talked about. Your job is to tell the truth. [Pause] And your job is to say, "I don't know" if you really don't know. [Short pause] Or you can say, "I don't remember" if you really don't remember. Will you do that? (Good.)
29. O.K. One more thing, [child's name], and then I'm all done. We talked about promises a minute ago. So I need to ask you: Will you promise that you will tell the truth today for sure? You will tell us just what was real? [Pause] And you promise that you won't tell any lies? [Pause] (That's good. Thank you.)
    [NB: Research indicates that young children regard "will" as placing more obligation on them to tell the truth than "promise." Therefore, it is recommended that you use both "will" and "promise," as written above.]

** The word "promise" can be used in ways that are very difficult for young persons to process. One use that can give children, even school-age children, a problem is found in the questions that some judges feel they must ask: "Has anyone promised you anything for coming here today?" That wording uses a somewhat abstract verb form (has promised), and leaves out the essential phrase "to give" (promised to give you). If such a question is absolutely necessary, try phrasing it as follows: "Did someone promise to give you something special/good/that you'd like [very brief pause] for coming here today?" Or avoid the word "promise" by asking: "Did someone [not "anyone"] tell you that you'd get something special for coming here today?"

Before allowing child witnesses to testify, courts routinely require children to describe what would happen to them if they lied. However, young children often refuse to reason hypothetically if they view the premises as implausible or undesirable, and might be more willing to discuss the consequences of lying if they are asked about another child rather than themselves. On the other hand, children might view themselves as invulnerable to punishment, and therefore believe that whereas other children will be punished for lying, they will not be. In this study, 64 maltreated 5 and 6-year old children were asked to describe the consequences of lying to three professionals (a judge, a social worker, and a doctor). Participants in the "self" condition were asked what would happen to them if they lied, whereas participants in the "other" condition were asked to describe what would happen to a story child if he or she lied. Asking children about "other" children increased responsiveness, but did not reveal perceptions of invulnerability. The results suggest that young children's understanding that they will be punished for lying may make them reluctant to discuss the consequences of lying, leading to underestimation of their oath- taking competency.

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