The Use of Closed-Circuit Television: The Experiences of Child and Youth Witnesses in Ontario’s West Region

Pamela Hurley

For almost three decades the role of young witnesses in the Canadian justice system has received considerable attention from the dual perspectives of minimizing revictimization and maximizing ability to provide best evidence. It is generally accepted that testimonial aids have improved the experience of children in the courtroom. Studies have reported the benefits of testimony outside the courtroom in facilitating the process of giving evidence (Davies and Noon, 1993; Goodman et al., 1998).

Efforts to “humanize” the adversarial process and make it more sensitive to children and youth are reflected in legislative amendments, in Canada and internationally, and research has attempted to ascertain the effects of these provisions on children who give evidence in court. In the past decade, researchers have focused on better understanding children’s experiences with the criminal justice system by speaking directly with them, rather than just their parents or the professionals (see Plotnikoff and Woolfson 2012, 2009, 2007, 2004). The present research reflects the experiences of young witnesses (now aged 9–19) Footnote 1 in court and the use of testimonial aids, specifically closed circuit television (CCTV).

Since the first series of legislative reforms in 1988, there have been significant changes in the legal system addressing the needs of children called to testify in Canadian criminal courts. With amendments that came into force in 2006, there is now a presumption that all children under age 18 can, upon application, use testimonial aids, including screens and CCTV, and have an identified (court-approved) support person. Footnote 2 Although the intention of the legislation was to provide clarity and consistency, there continues to be a wide variation in how these provisions are being used throughout the country.

The purpose of this study is to better understand the use of CCTV in the West Region of Ontario and to determine how, or if, the use of CCTV helps facilitate children’s evidence and minimize stress and revictimization for children and youth. Ontario’s West Region includes 10 areas and extends from Grey Bruce County (Owen Sound) to Essex County (Windsor). This article describes the method and the findings in light of other similar studies.

Method

There were three sources of data: (1) information provided by the Victim/Witness Assistance Program (V/WAP) Footnote 3 and the Child Witness Project (CWP); Footnote 4 (2) demographic information obtained from a questionnaire completed by parents/guardians; and (3) in-depth interviews conducted with 15 children and youth and with 13 parents.

The study employed in-depth, semi-structured interviews with witnesses to explore their experiences and perceptions about testifying in criminal court. Criteria for inclusion in the study were that the case must have been completed within a two-year period and that the children and youth were under the age of 18 when they testified. Cases that fell within the two-year parameter were reviewed by V/WAP in six of the ten locations in the West Region and by the CWP in one jurisdiction. The following information was retrieved from these files: type of offence(s); number of child witnesses in each case; completion date; disposition; and what if any testimonial aids were used. V/WAP and the CWP informed parents about the research and a total of 29 parents agreed to be contacted about the interviews. Of these, 15 children and youth and 13 parents participated. Participants were provided with a letter of information in adult, youth and child versions. The voluntary nature of participation, confidentiality, and anonymity was explained and discussed with each young person and parent. Footnote 5

Limitations

As with all qualitative studies, the findings presented here are representative of only those interviewed and should not be generalized to the whole population of young witnesses. While many of the cases have similarities (e.g. offences, relationship to the accused, gender), each case is ultimately unique.

Participants and the Interviews

Twelve female and three male children and youth participated, ranging in age from 9 to 19 when interviewed. The courts were located in both large and smaller urban centres and most were equipped with CCTV. Of the 15 cases, 13 involved sexual offences. All but one participant was related to or knew the accused. Just over half of the children testified twice. Most used CCTV at least once; two children used a screen, and two children chose to testify in open court. These four witnesses were included to understand how their experience compared to those who used CCTV. The majority of children also had a court-approved support person with them while testifying.

Findings

The findings are organized by five themes: the use of testimonial aids, the witnesses’ perceptions about CCTV; cross-examination; preparing for court; and the impact of time and delays.

The Use of Testimonial Aids

Three quarters of the children in the interview group used CCTV, and all of those who used CCTV had a support person with them while testifying. In four of the five courthouses where CCTV was used, both Crown and defence counsel were in the testimony room with the child and support person. In examining the court outcome for the participant cases, there appeared to be little difference associated with whether the child testified using CCTV or a screen or in open court.

Interviews explored reasons why CCTV was not used for four of the young witnesses. Two of the witnesses used a screen; one because the courthouse did not have the equipment. When technical problems with the CCTV arose, the second witness opted to testify in the courtroom rather than adjourning and re-scheduling the matter. The screen was placed in front of the accused in this instance. This witness had used CCTV at the preliminary inquiry.

Three other witnesses testified in open court, without a screen or CCTV, and one youth had used CCTV at the preliminary inquiry but chose open court at trial. She said that,

(I) decided to be in the courtroom at trial – I was still afraid of him, but I wanted to show him I was strong enough – show I was not scared any more.

Counselling helped me to get stronger; I learned strategies to cope without breaking down.

- female, aged 14

Children’s Perceptions about CCTV

There was a high degree of consistency among the young witnesses about the benefits of CCTV. When testifying outside the courtroom, their most significant concerns were addressed: they did not have to see the accused or be in his or her presence; they did not see people in the courtroom; and it helped them feel safe. The young witnesses noted:

[CCTV] helped because I didn’t have to be in the courtroom... I didn’t have to have people staring at me. If they didn’t have CCTV it would have been very difficult for me.

- female, aged 13

I didn’t have to see him or people in the court room – it felt safer.

- female, aged 15

I would have been even more scared if I had to go into that little box beside the judge - if he [the accused] was looking at me, I don’t think I would have said everything.

- female, aged 14

Participants who had used CCTV highly endorsed the aid and would recommend its use to other witnesses. One youth noted that it is not easy to testify, but that CCTV makes it easier. Problems with CCTV equipment, however, were identified by several young witnesses, sometimes resulting in delay or re-scheduling of the case.

The use of CCTV may not prevent an unanticipated meeting with the accused. One child saw the accused at the security gate and another saw the accused sitting on the bench outside of the testimony waiting room. An accidental move of the camera displayed a view of the accused to the young witness who was testifying via CCTV.

The majority of children reported that they had been very worried before court, and this was confirmed by parents who indicated that their child had been very worried about testifying and that the use of CCTV was helpful. All those interviewed, parents and children, emphasized the importance of having choice and the opportunity for input as to how they testified. The importance of having a choice in how to testifywas also identified in an early Australian study(Cashmore 1991).

Cross-Examination

CCTV helps young witnesses provide a full and candid account of their evidence, but for many children the aid does not buffer the process of cross-examination. Many described cross-examination as the most difficult part of the process. Over half of the children said that they were unable to say everything they had wanted primarily due to the questioning by defence counsel. The age of the witness was not a factor. In response to the question, “Did you say everything you wanted to the judge?” the participants responded:

No. Sometimes I said I didn’t understand, and sometimes I didn’t understand the questions and didn’t say

- male, aged 16

No. There was too much focus on time frames that happened a long time ago and not enough focus on the events.

- female, aged 15

Confusing questions, I just tried to answer.

- male, aged 11

A small number of participants recalled that the defence lawyer had been “nice,” but that they were confused by the questions. None of the children or youth reported confusion about questions asked by the Crown.

Participants recalled that court preparation helped somewhat with cross-examination and that they were aware they might be asked difficult questions. One youth recalled that the Crown had said she would, “intervene if there were inappropriate questions” asked during cross-examination. One youth became highly distressed during cross-examination, ran from the room, and was unable to return.

Cross-examination has been the focus of considerable controversy in child witness research for many decades. Studies have highlighted the difficulties children have responding accurately and completely to questions that are leading, suggestive and complicated. In a significant study in the UK (Plotnikoff and Woolfson 2009), undertaken as a follow-up to an earlier study (Plotnikoff and Woolfson 2004), Plotnikoff and Woolfson interviewed 172 children about testifying in criminal proceedings. Two thirds of the children interviewed reported having difficulty with comprehension, the complexity and pace of questions and interruptions. Two thirds reported negative feelings, including being scared, shaky, tired and frustrated while testifying. In a smaller scale study involving 37 interviews, children who had testified in criminal proceedings in Northern Ireland reported similar experiences, with almost half of them having problems understanding all of the questions asked during cross-examination (Hayes et al. 2011). Studies also suggest that testimony is less accurate after cross-examination (Fogliati and Bussey 2014) and that children answer erroneously to leading questions or those they do not understand (Spencer 2012).

Research that looks at the questioning of children has identified that open-ended, non-leading questions elicit the most complete and accurate information (Lamb et al. 2007). This style of questioning, however, is rarely practised in cross-examination. The use of intermediaries to facilitate child witness testimony, initiated in South Africa in the early 1990s, is an example of one innovation. Intermediaries are tasked with facilitating communication for the young witnesses during court proceedings, and they act as a protective factor during cross-examination. The use of intermediaries for children and vulnerable adults has been implemented and evaluated in England and Wales (Henderson 2012; Plotnikoff and Woolfson 2007).

Preparing for Court

All child and youth participants were provided with court preparation services by V/WAP or the CWP, which were highly valued. In most cases, the V/WAP or CWP staff who provided court preparation also acted as a court-approved support person. The majority of children and youth were informed about the availability of CCTV by the Crown prosecutor and/or V/WAP or CWP before going to court. Thirteen of the fifteen witnesses reported meeting with the Crown before court, and many recalled having a second meeting. Meetings with Crowns were described as reassuring and helpful. Many found that they learned what to expect when testifying, and some of the Crowns spent time preparing the witness for cross-examination. Two participants reported they did not have the opportunity to meet the Crown before court as the meetings were cancelled. This was upsetting for both young witnesses, one of whom reflected that the Crown “did not know me.”

The Impact of Time and Delays in the System

Children and parents voiced frustration and distress about the multiple delays and the lengthy period of waiting for the court process to reach completion. The time spent in the system by the 15 young witnesses ranged from 11 months to 38 months; on average, cases took just under two years to reach completion.

Children described this waiting period as difficult and stressful. These comments illustrate their experiences:

As soon as I got the subpoena I started reliving the memories about what happened.

- female, aged 18

You had to relive it again and keep thinking about it. I was nervous and stressed about it.

- female, aged 14

I wasted two years stressing about this.

- female, aged 18

It took so long – I didn’t want to do it anymore.

- female, aged 14

Waiting many months, even years, can have a negative impact on children and families. Parents spoke about their inability to talk to their child about their victimization until the case was completed, often having to wait up to two years. Parents were called as witnesses in several of the cases. They appreciated the preparation and support provided for their children and noted that they could also benefit from enhanced supports themselves. The need for support for parents has been identified in the literature (Crawford and Bull 2006). For a small number of children, counselling could not begin until the case was completed, as per the policy of some community agencies. Witnesses felt that they could not get on with their lives, as they were required to remember details of events in order to recount the information in court. As well, memories can fade with time.

Delays seem to be part of the criminal justice system, but there are some measures that may address the challenges (see Walsh et al. 2008). For example, the use of children’s video-recorded statements as evidence-in-chief may help. So could child and youth advocacy centres, which provide multidisciplinary, seamless services to and families, from the point of the investigation to court outcome and beyond (see McDonald et al. 2013). Footnote 6

Final Thoughts

CCTV has been available since 1988 on a case-by-case basis, and presumptively since 2006. Despite the clarity provided in the Criminal Code, anecdotal evidence shows that testimonial aids are not being used consistently for young witnesses in the country. Crown prosecutors, V/WAP and the CWP were concerned that this was also the case in the West Region. The findings showed that the majority of young witnesses interviewed did have access to CCTV and that most had been informed about CCTV and given the option to use it.

All participants reported that CCTV was beneficial; as one young person stated, “If CCTV is an option, take it.” Court preparation and support were both also identified as helpful and as making a difference. On the less positive side, problems with CCTV equipment did occur and often resulted in delays. And it is important to note that the use of CCTV could not buffer two stressful aspects of participation in criminal justice proceedings which were highlighted during the interviews: cross-examination and the negative impact of delays and waiting.

The majority of young witnesses stated that they would not want to testify again. This sentiment was echoed by their parents, who had concerns about the emotional turmoil testifying put their children through. The young witnesses, however, showed remarkable resilience and courage in facing up to the responsibility of testifying, even when the outcome was acquittal. As one youth reflected,

I am proud of myself. Even though he got off, I showed him that I [could stand] up and was not afraid of him anymore.

Although this is a small study from which limited conclusions can be drawn, it supports the findings of a number of related studies dealing with children’s participation in the criminal justice system. The views and experiences of the young witnesses explored in this study clearly highlight the benefits of CCTV and support while testifying. These testimonial aids facilitate the participation of child witnesses and, overall, serve to minimize stress associated with testifying.

Acknowledgements

This article is based on a larger research project undertaken by the Research and Statistics Division, Department of Justice Canada (2014), that included interviews with children and youth and their parents conducted by the author and surveys with Crown prosecutors and victim services in the West Region of Ontario. The author is grateful to the Steering Group that supported and guided the study throughout, to the Victim/Witness Assistance Program managers and staff and the Child Witness Project, who helped facilitate the participation of the children and parents, and to the Crown Community Committee, who identified the need for research.

References

Pamela Hurley is a child witness specialist and part-time faculty, Department of Interdisciplinary Programs, King's University at Western.