Vulnerable Witnesses: Understanding and Supporting Children and the Learning Disabled

1. Vulnerable witnessesScope, nature and research Brian R. Clifford Professor Emeritus University of East London Honorary Professor University of Aberdeen

2. The concept of Vulnerability • Psychology and law conceive of vulnerability rather differently • Psychologically, vulnerability usually refers to a person’s deficits In the Vulnerable Witness (Scotland) Act 2004, the term is used in a subtly different way. Here vulnerability refers to the person’s product – their evidence. • Thus the Act stresses special measures in and around court appearance, “ where there is a significant risk that the quality of their evidence may be diminished … in connection with giving evidence at trial”, predicated on the witness’s fear, distress and possible intimidation. • But, as initial evidence gatherers, you have to deal with vulnerable persons, in the psychological sense, and the quality of evidence extraction is thus critical

3. Vulnerable witnesses • Persons under the age of 16 years (children) • Adults subject to mental health or mental disorder problems • Adults with significant impairment of intellectual or social functioning • Adults whose evidence may be diminished due to fear or distress but with no underlying impairment • Today I will be looking at children, the learning disabled and the elderly as vulnerable witnesses

4. Children as vulnerable witness • Memory strategies develop with age • Thus there are age related differences in the number, type and efficiency of strategy usage • Forget faster than adults • Report fewer details than adults in free recall • Give answers that they think are wanted • Highly suggestible • Confuse the source of their memories more than adults • These deficits stem from cognitive and social factors

5. The reality • The quality of the child’s testimony is less a function of the child than of the interviewer • There is now ample guidance on how to interview children – MOG, ABE, SE • Research has suggested methods that can further enhance the evidential value of children’s testimony • One such method is mental or physical context reinstatement

6. Physical and mental context reinstatement • Physical CR La Rooy et al. (2007) looked at the effect of perfect-CR, imperfect-CR and no-CR on 5-6 year-olds’ event memory under immediate and repeated delayed interviewing. They found that • CR attenuated forgetting (27% vs 50%) • Accuracy was 86% vs 72%. • Imperfect-CR did not produce worse performance than no-CR. • P-CR resulted in most accurate new information in the repeated interviews. • Thus CR can have facilitative effects across repeated interviews

7. Physical and mental context reinstatement continued • Mental context reinstatement • Mental context reinstatement is a key element of the Cognitive interview • Mental CR is not built into MOG, ABE or the SE guidance • Granhag & Spjut (2001) found, in children aged 5-12 years of age, more correct information with a CI than with a control interview based on the MOG and ABE • Holliday (2003) found CI led to more complete recall and 27% more correct information in 4-5 yr-olds and more Person, Action and Object information, than a MOG-based interview • The CI can also offset the negative effects of post-event misleading information in children if given before the misleading information (Memon et al. 1996; Milne & Bull, 2003) or after it (Holliday, 2003; Holliday & Albon, 2004)

8. Conclusion re. Children as vulnerable witnesses • Children do have poorer memories than adults and are more susceptible to suggestion, misleading information and repeated questioning • Provided interview strategy and questioning are age appropriate children can be reliable and credible witnesses • Government guidelines on interviewing are not the best available • The use of CR within the umbrella of the CI offers itself as a facilitative technique that can reduce the weaknesses identified under categorising of children as vulnerable witnesses • The CI lends itself to video taped evidence-in-chief just as well as that suggested by ABE and the Vulnerable Witness (Scotland) Act 2004’s special measures

9. The learning disabled as vulnerable witnesses • Learning disability, intellectual impairment and mental retardation are used interchangeably • Intellectual impairment is defined as a state of arrested or incomplete mental development resulting in a significant impairment of intellectual and adaptive and social functioning (APA, 2000) • Estimates suggest that there are ca.1.5 m LD persons in the UK. • Most LD live in the community and are disproportionately likely to be either victims/witnesses of crimes, or perpetrators (e.g., Gudjonsson, et al. 1993, found 34% of adult suspects awaiting interview had IQs of 75 or less)

10. Perceived problems with LD witnesses/victims • Significant impairment in cognitive and social functioning • Poor memory • Limited linguistic skills • Excessive desire for attention • Lack of awareness of consequences • Prone to fabricate accounts • High levels of suggestibility (Yield and Shift) • Highly influenced by the nature of questioning

11. Reality Robinson & McGuire (2006)

12. Reality continued • Wright & Holliday (2007)

13. Reality continued • Brown & Geiselman (1990) Found CI with LD adults led to 33% increase in correct detail recall compared to a control interview • Milne et al. (1999) Found CI increased correct detail recall by 35% with mild LD adults compared to a structured interview • Milne & Bull (1996) Found 7-10 year old children with mild LD improved Person, Action and Surrounding detail recall and increased accuracy with a CI compared to an SI

14. Conclusion concerning LD vulnerable witnesses/victims • Their cognitive and social impairments cannot be denied • These eventuate in witnesses who have poorer memories, are more suggestible and thus more intrinsically unreliable • However research has shown that there are methods of interviewing that can increase their evidential value • The CI should perhaps be the preferred method of investigative interviewing with such witnesses

15. The elderly as vulnerable witnesses • We are an ageing population. By 2011 some 12m people in the UK will be of pensionable age, i.e., some 20% of the population • The BCS suggests that 15% of victims of crime were over 65. Some 7.3% were victims of violent crime • Neglect and abuse are being reported with increasing frequency by older people • In a survey of 159 police officers in England, a tenth of the officers encountered elderly witnesses over 50% of the time. Perceptions of the whole sample were predominantly negative (Wright & Holliday, 2005)

16. Perceived problems of the elderly as vulnerable witnesses • Memory decline is age related and multifaceted • Encoding, storage and retrieval • Availability and deployment of processing resources • Control processes associated with neural degeneration • Poorer memory quantity and accuracy • Recall/recognition • Episodic and event memory • Source monitoring • Confidence in errors • Distractibility

17. Remembered 68% 46% Young Forgot 32% Old Forgot 54% Correct 63% 36% Correct Rays of hope in terms of the elderly • Rose et al (2005)

18. Rays of hope continued • Wilcox et al. (2007) TP TA

19. Rays of hope continued • Wright & Holliday (2007) %age better than ABE-based interview

20. Conclusion re elderly witnesses • The elderly are heterogeneous but do have systemic weaknesses • Recall and identification can be improved by appropriate methods • These methods are based upon giving environmental and cognitive support to abilities that may be absent, poorly deployed or inefficiently activated • The CI is one such method that recommends itself

21. Overall conclusion re vulnerability • Vulnerable persons form various continua • These continua involve social, emotional, behavioural and cognitive dimensions • The various dimensions are not mutually exclusive • I have looked at the cognitive continuum today • This continuum stretches from chronic, through acute, to no cognitive impairment

22. Children LD Elderly Chronic cognitive impairment Drugged Drunk Acute cognitive impairment Possible acute/chronic cognitive impairment Anxious Depressed Fearful Intimidated No acute or chronic cognitive impairment

23. Scope, nature and research • Scope of vulnerability – huge • Social, emotional, behavioural, cognitive • Nature of vulnerability – multifarious • Auditory, visual, intellectual, linguistic deficits, fear, distress, intimidation • Research on vulnerability - ongoing • Applicable • Uneven • Fledgling stage

25. Children as vulnerable witnessesHeydon, 1984, p.84 Observation and memory less reliable Live in make-believe world Very egocentric Very suggestible Little notion of need to speak the truth Can be evil beyond their years

26. Social and cognitive factors • Social factors Compliance Repeated interviews and questioning Misinformation effects • Cognitive factors Memory Event-based knowledge Language Concepts of time, quantity, etc., are difficult

27. Reality • Miles et al.(2007) LD Normals Age 11.4 11.1 IQ 59.9 104.4 Yield 11.0 5.34 Shift 6.51 4.96 Total Suggestibility 17.51 10.30 Magic show Correct detail 44.96 126.88 False-new 15.9 6.10 False-interview 1.62 1.86

28. The reality • Gudjonsson & Henry (2003) Children Normal Mild LD Mod LD IQ 102.9 63.3 46.8 Imm Rc. 17.1 9.1 5.1 Yield 4.6 7.0 8.9 Shift 3.4 4.6 7.9 Total Sugg. 7.9 11.6 16.8

29. Reality continued • Gudjonsson & Henry (2003) Adults Normal Mild LD Mod LD IQ 94.4 67.4 49.6 Imm Rc. 13.4 6.9 1.6 Yield 5.6 7.7 11.3 Shift 4.3 4.4 5.4 Total Sugg. 9.8 12.1 16.7

30. So who are vulnerable witnesses • Under the 2004 Act the definition of vulnerable witness is widened to include anyone where there is a significant risk that the quality of their evidence may be diminished by reason of fear or distress in connection with giving evidence at trial. • Thus the Act now identifies as vulnerable