SENIORS ON THE STAND

ACCOMMODATING OLDER WITNESSES IN ADVERSARIAL TRIALS

Abstract

Adversarial trials are structured on the assumption that the most reliable evidence comes through the in-person cross examination of witnesses. However, for many older adults, aging introduces physical and cognitive changes that can interfere with the ability to meet this basic requirement. This paper considers whether the legal and procedural rules that have been developed to ensure that only the most reliable evidence is used as the basis of fact finding in a trial may disproportionately be excluding evidence from seniors. To explore this tension, I identify four physical and cognitive issues that increase in prevalence with old age that can interfere with a witness’s ability to testify in person. I then review the promise and limitations of the current rules of evidence and procedure in meeting the potential challenges experienced by older witnesses.  While current laws of evidence and procedure contain tools that can accommodate individuals who experience limitations, a case law review suggests that they are seldom used to facilitate the participation of older adults in trials. With the proportion of people aged over 65 expected to double in the next 20 years, it is critical for future research to explore this gap.