Leading Questions and Child Witnesses

Lawyers involved in product liability cases are occasionally involved with child witnesses, either as plaintiffs or as percipient witnesses to the critical events in the lawsuit. As in other types of litigation, child witnesses present a number of difficult challenges in product liability cases.

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.