Department of
Publications
http://canada.justice.gc.ca/en/ps/rs/rep/interaction/inter.html
The Interaction Between
Children's Developmental Capabilities and the Courtroom Environment: The Impact
on Testimonial Competency
Louise
Sas, Ph.D.C. Psych
November 2002
The views expressed in this report are those of
the author and do not necessarily reflect the views of the Department of
Justice Canada.
TABLE OF CONTENTS
- Executive Summary
- I. Introduction
- 1.1 Children and the Courts
- 1.2 The Reception of Child
Witnesses in Court
- 1.3 Post-Disclosure Stressors
on Children
- 1.4 Children’s Qualitative
Experiences on the Stand
- 1.5 Understanding the
Expectations of Child Witnesses on the Stand
- 1.6 The Inquiry into the Oath:
A Child’s First Foray on the Stand
- 1.7 Cross-Examination of the
Child Witness
- 1.8 Facing the Accused: The
Impact on Child Witnesses
- 1.9 Modifying the Criminal
Justice System’s Expectations of Child Witnesses
- II. Children's
cognitive abilities and their impact on Court Testimony
- 2.1 Bridging the Gap in
Knowledge for Child Witnesses
- 2.2 Understanding the Meaning
of the Truth and Making a Promise to Tell the Truth
- 2.3 Children’s Abilities to
Make Inferences About Other’s Intentions, and to Take Another’s
Perspective
- 2.4 Dealing with Hypothetical
Questions
- 2.5 Using Scale Models to
Explain a Situation to the Court
- 2.6 Children’s Tendency to
Attribute Knowledge to Adults
- 2.7 Children Don’t Know That
They Don’t Know Things
- 2.8 Children’s Abilities to
Estimate Duration, Frequency of Events and Dates
- 2.9 Children’s Concepts of
Court
- III. Language
Development in Chidren
- 3.1 Toddlers
- 3.2 Preschool Aged Children
- 3.3 Early Primary School Aged
Children
- 3.4 Late Primary School Aged
Children
- 3.5 General Language Skills
- 3.6 Knowledge of Legal
Terminology
- IV. Memory in
Children
- 4.1 The Processes of Memory
- 4.2 The Use of Narrative
Accounts in Memory
- 4.3 Age as a Factor in Memory
- 4.4 Prior Knowledge and Memory
- 4.5 Impact of Anxiety on
Memory
- 4.6 Long-Term Memory
- 4.7 The Effect of Time on
Forgetting Behavior in Children
- 4.8 Script Memory
- 4.9 Source Monitoring
- 4.10 Highlights in Children’s
Memory
- V. Suggestibility of
Children's Memory
- 5.1 Factors Affecting
Children’s Suggestibility
- 5.2 Reducing the Potential for
Suggestibility in Interviews
- 5.3 Highlights on Children’s
Suggestibility
- VI. Developing a
Model to Explain testimonial Competency
- VII. Recommandations for the System : How To Obtain Good
Evidence from Children
- VIII. Futures
Directions
- References
- EndNotes
1.1 Children and the Courts
Over the last
twenty years, there has been a steady increase in the number of children who
testify each year in criminal court in
This generally
more favorable attitude on the part of professionals towards the credibility of
children, which emerged in the mid-eighties in
A more
accepting disclosure climate with respect to allegations of abuse by children,
led to a gradual increase in the number of cases reported to mandated agencies
such as the police and the Children’s Aid Society. What became apparent rather
quickly, was that the next identified step had to involve the development of
appropriate responses by mandated agencies to children’s disclosures of abuse.
Motivated by this positive change in attitude towards abuse
disclosures by children, and in recognition of the urgent need to deal more
effectively with this social problem,
Of most
significance from the point of view of children’s involvement in the court
system, was the abrogation in law of the need for corroboration of unsworn testimony and the negation of the distinction
between sworn and unsworn evidence for children under
fourteen years of age. These two changes to a previously restrictive reception
of children’s evidence in the courts essentially opened the courtroom doors,
allowing children to testify even if they could not swear an oath and even in
the absence of corroboration. Given the particularly clandestine nature of
child sexual abuse which often does not involve injury and medical findings (Sas, Cunningham, Hurley, Dick, & Farnsworth, 1995),
coupled with the reality that many young children have difficulty defining an
oath in court (Bala, 1993; Sas
et al., 1993; Wilson, 1989; Wolfe, Sas, & Wilson,
1987), these two legislative amendments were responsible for allowing more
children into the courtroom to tell about their victimization experiences.
In the
nineties, a number of historical cases of child sexual and physical abuse came
to light as well, and these cases emphasized the importance of responding to
children’s disclosures of abuse. The Canadian public’s awareness of the extent
of child abuse increased tenfold through exposure to the horrific details that
emerged in a high profile historical abuse case at Mount Cashel
Orphanage in
Since that case
came to light, the public has been exposed through extensive media coverage to
the victimization of large groups of children in residential schools and other
institutions, the proliferation of child pornography rings on the internet, and
the involvement of children in sexual exploitation rings in major Canadian
cities (Sas, Hurley, Cunningham & Austin, 1997).
In addition to these multiple victim multiple offender cases, there have been a
number of celebrated cases involving high profile individuals as victims. One
such case involved Sheldon Kennedy. Sheldon Kennedy was a star junior hockey
player for the Swift Current Broncos in
As can be
expected, accompanying the rise in high profile child abuse cases in which
children testified has been an increase in criticism by defense lawyers
regarding the veracity of young children’s accounts of sexual and physical
abuse. In the United States, the Kelly Michaels case (State v. Michaels, 1994)
and the McMartin case (Montoya, 1993), both of which
involved large numbers of preschoolers in a day care center; and in Canada, the
Martinsville’s matter in Saskatchewan (Roberts, 1995) which emphasized the
potential dangers of accepting children’s accounts of abuse when inappropriate
and suggestive interviews had taken place before court. In comparison, the
In response to
concerns raised in these North American cases, as well as criticisms of other
investigations abroad (R v. Ellis,
1994)1, the last five
years has found social science research focusing its attention on the
troublesome issue of children’s suggestibility in response to suggestive and
leading questions in forensic interviews. A proliferation of studies examining
the potential for contamination of children’s reports by interviewers and the
suggestibility of children’s memories have been conducted (e.g., Bruck, Hembrooke, & Ceci,
1997; Ceci & Bruck, 1993, 1995; Lyon, 1999; Poole
& Lindsay, 1997, 2001).
These studies
on suggestibility and memory in children have raised concerns about the
accuracy of very young children’s memories. A common finding in these studies,
has been that children’s memories are deficient compared to that of adults and
more suggestible to post-invent information. Some defense lawyers have even
raised the question of whether young children can ever be depended on to give
reliable accounts in a court of law.
In response to
the increasing backlash against children’s evidence in court and in light of
study findings on children’s susceptibility to suggestion, attempts have been
made to provide clearer guidelines for interviewing children and more
sophisticated abuse protocols for mandated agencies carrying out forensic
investigations (Coulborn-Faller, 1996; Poole &
Lamb, 1998; Saywitz, 1995; Saywitz
& Elliot, 1999). Improving the quality and integrity of investigative
interviews in light of current research findings has become a major priority.
In summary, the
last twenty years or so has produced many changes in the way we respond to the
problem of child abuse. One major development has been a stronger legal
response to the problem and the introduction of more and more child witnesses
into criminal court as complainants in prosecution cases. The next section of
this paper will discuss the involvement of children in court, in particular the
expectations of children when they testify. This is intended to provide a
background for the subsequent sections, which will focus on different aspects
of children’s development and their impact on testimonial competency.
1.2 The Reception of Child Witnesses in
Court
Our reliance on
a legal remedy to combat child abuse has translated into a reality where young
children’s testimony against their alleged abusers has become the cornerstone
of our prosecution efforts (Woolard, Repucci, & Redding, 1996). In the absence of a guilty
plea, children are routinely expected to testify about their alleged
victimization at both preliminary hearings and trials.
An increase in
the participation of children in the Canadian court system was found in a
four-year review of Bill C-15 (Standing Committee on Justice and the Solicitor
General, 1993). This was seen to be encouraging, as it was felt that the steady
increase in the number of children testifying was a sign that the Criminal Code
amendments intended to facilitate the reception of children’s testimony were
effective. More cases of child abuse were definitely being heard across the
country.
In a multi-site
study involving child witnesses entitled I’m
doing my job in court, are you? Questions for the Criminal Justice System,
over 900 cases of child abuse prosecuted across South Western Ontario were
examined retrospectively (South-Western Ontario Child Witness Network, 1999).
The researchers found that children testified in 80% of the preliminary
hearings that were held and in 88% of the trials. These numbers indicated
clearly that children’s involvement in the court process was critical to the
prosecution of their cases.
In another more
recent study of child witness involvement in criminal court, just over half of
the 251 completed child abuse cases tracked by the Nova Scotia Department of
Justice Victims’ Services, testified in court, many more than once (Nova Scotia
Department of Justice Victims’ Services, 2000). The remaining children who were
referred to the Victim Services Department were waiting to testify. The
statistics quoted in the
What has not
been affected to the same extent by the amendments however is
the qualitative experience of most children who testify in court.
Several research studies have highlighted the secondary trauma, which occurs
when children venture into the courtroom arena (Bala,
1993; Park & Renner, 1998; Sas et al. 1993, 1995;
Department of Justice Canada, 2001). Despite the legislative amendments,
researchers have reported negative experiences for children on the stand.
The negative
experiences are attributed in large measure to reluctance on the part of the
judiciary, the prosecuting crown attorneys and most notably the defense
lawyers, to handle children in a more sensitive manner. In Canada, a failure to
routinely implement the legislative provisions designed to ameliorate the
stress of testifying for children, such as the use of screens and closed
circuit television, or making support persons available to accompany children
to the stand, has meant that many children are intimidated and highly anxious
in court when they testify (Bala, Lindsay, et al.,
2001; Park & Renner, 1998; South-Western Ontario Child Witness Network,
1999).
Child advocates
have suggested that the marked difficulties children experience on the stand
are not the result of simply a reluctance to change the way business is done in
court, but are symptomatic of an underlying negative courtroom culture that
remains insensitive to children’s emotional vulnerabilities and misinformed
about their capabilities and their limitations. On the surface, children are
permitted access to court because of the changes to the legislation. Once they
are there however, this negative courtroom “culture” prevails and there are
little or no accommodations made available for child witnesses. Court observers
note that what happens in court can often undermine children’s testimonial
competencies.
There are many
stressors facing child witnesses. Challenging and intimidating crossexamination of children is permitted and fairly
routine. The language employed in the courtroom is sophisticated and
formalized. Very few children have the benefit of testifying behind a screen or
using closed circuit television, despite being very frightened by the presence
of the accused in the courtroom. Children often have to testify twice, once at
a preliminary hearing and again at trial. There are extended delays between
hearings, which result in long periods of anticipatory anxiety. All this occurs
in spite of the stated spirit of the legislation, which recognizes children’s
vulnerabilities and provides progressive amendments to the law, which can
reduce the stress of testifying.
Park and Renner
(1998) have described our current legal system as one which creates procedures
and tactics that promote stress and push child witnesses beyond their level of
competency, thereby preventing them from testifying fully and truthfully.
Others have documented the fact that ignorance about children’s abilities still
prevails in court, and as a result children are routinely exposed to
inappropriate questions and complex procedures that they do not understand (Bala, Lee, Lindsay, & Talwar,
2001).
The Canadian
experience for child witnesses has not been unlike that described in other
countries around the world. In describing the experience of child witnesses in
Britain, Bull and Davies (1996) cited an article in the 1994 Daily Telegraph in England, which
described how one eleven year old child testifying in a child sex-gang
prosecution “endured six days of crossexamination and
frequently broke down in tears” (pp. 97). Many child advocates around the world
have contended that the Criminal Justice System ignores the special
vulnerabilities of child witnesses (Davies, 1991; Dent & Flin, 1992; Freshwater & Aldridge, 1994; Goodman et
al., 1993; Hamblen, Leibergott, & Levine, 1997; Maunsell, 2000; Pipe, Henaghan, Bidrose, & Egerton, 1996;
Whitcomb, 1992).
Around the same
time that Bill C-15 was enacted in parliament in
1.3 Post-Disclosure Stressors on Children
In order to
understand the difficulties that a child might experience in the courtroom when
testifying, one needs an appreciation not only of the child witness’s role in
court, but of the typical events that occur in a child’s life in the
post-disclosure pre-court time period. Once a disclosure is made, children and
their families are swept up in a complex process that most do not understand.
Children have no idea that they will be testifying months or years later in
court about what has happened to them. Depending on their age, they may not
even know what a court is!
This lack of
understanding on the part of children about the stages of criminal prosecution
was highlighted in a three-year follow-up study of child witnesses who had testified
in criminal court in
Children were
also not prepared for the significant personal life changes that ensued. This
was especially the case if the accused was a family member or someone close to
their family and in their circle of community acquaintances. In cases where
teachers were the accused, children often had to change schools, or if the
accused was a member of their church or neighborhood, this could mean a move as
well.
The most
striking finding, however, was that most child witnesses simply wanted the
abuse to stop and did not foresee a witness role for themselves once they had
disclosed. Children were not prepared for the intrusive questioning that took
place by mandated authorities, the physical examinations that were sometimes
carried out, and the reactions of their loved ones and others to their
disturbing information. They were most definitely not prepared for the
aggressive questioning they were submitted to on the stand, or the fact that in
most cases their parents could not be in the courtroom when they testified.
During court preparation sessions, children often shook their heads in
disbelief when they heard that they would be just a few feet away from the
accused when they testified. For most children under twelve in this study, it
never occurred to them that the accused would even be in court!
Children in
this study found themselves involved in a lengthy court process, which was
emotionally taxing, as it was not unusual for cases to take up to two years
from the first hearing through to the trial. This follow-up study of child
witnesses discovered that the entire experience was distressing for many children
and there were many unexpected stressors.
Other
researchers have also documented the fact that the months leading up to the
child’s court testimony either at a preliminary hearing or a trial is often
marked by anticipatory anxiety regarding the expected testimony (Goodman,
Bottoms, Schwartz-Kenny, & Rudy, 1991; Runyan,
Everson, Edelsohn, Hinter, & Coulter, 1988;
Whitcomb, Runyan, Devos,
& Hunter, 1991). By the time most child witnesses enter the courtroom,
months have passed, during which time many changes have occurred in their
lives. Their lives have been in limbo and they have relived their abusive
experiences over and over again in their minds in preparation for their
testimony.
1.4 Children’s Qualitative Experiences on
the Stand
Once children
enter the courtroom, there are a myriad of expectations, which are implicit in
the role of a witness. In
In the
courtroom, children can expect to find an array of adults (court persona who
are all familiar with court procedures) and of course the accused. There may be
others as well if members of the public have come to observe the hearing.
Family and friends of the accused often attend, which can be yet another source
of anxiety for a child witness. When one thinks about it, there are few
experiences in a child’s personal life which prepares them for the task of
giving evidence about emotionally difficult topics, attending a formal
courtroom and talking in the presence of many adult strangers, some of whom who
may be hostile.
The recent survey
of 900 cases of alleged child abuse in
Another
significant finding from the Ontario Child Witness Network study,
was that parents are often excluded from the courtroom while children testify,
as they can be potential witnesses in the cases and there is a standing court
order excluding witnesses. Commenting on the practice of having children go
into court alone, Myers (1996) in his chapter entitled “A decade of
international reform to accommodate child witnesses”, compared the experience
of children facing a hospital procedure and those facing the prospect of giving
testimony in court. He concluded the following, “At the hospital, emotional
support is an integral part of treatment and parents are partners in therapy.
At the courthouse, however, things are different. The
tradition in court is that the child must go it alone” (p. 234).
Recent social
science research has demonstrated that young children who are asked to separate
from an attachment figure and accompany a stranger into an unfamiliar office
often experience considerable anxiety (Saywitz &
Elliot, 1999). This separation anxiety is no doubt mild compared to the anxiety
that must be engendered in children when they must enter a courtroom on their
own. Research has also shown that separation anxiety is even more likely if a
child has been maltreated in the past (Saywitz &
Elliot, 1999) and the clinical literature on intrafamilial
abuse documents the importance of a supportive non-offending parent to a
child’s postdisclosure adjustment (Sas et al., 1995). Children need to have a parent in the
courtroom. It stands to reason that maltreated children are even more
vulnerable on the stand. The irony in all these findings is that the majority
of child witnesses who testify come to court to talk about their own
victimization experiences and nearly all of them have to enter the courtroom
without the support of a family member.
Given this
scenario, we must consider the possibility that our social expectations of
children when they testify in court may go beyond what most children can
comfortably cope with. We need to ask ourselves what the implication is of
having a highly anxious child on the stand. There is now empirical evidence,
which indicates that if a child is traumatized during their court experience,
such trauma can affect what is said in court, how it is said and consequently
the child’s credibility in the eyes of a jury or judge (Hamblen et al., 1997; Saywitz & Elliot, 1999; Stafford & Asquith, 1992).
It stands to reason that if we ignore a child witness’s emotional needs, the
final court outcome may well be at risk too.
1.5 Understanding the Expectations of Child Witnesses on
the Stand
What are the
actual demand characteristics inherent in the task of giving evidence? Walker
(1993) in her observations of children giving evidence, outlined six basic
expectations of child witnesses: (1) That they have observed or experienced the
event in question, (2) that they can recollect the event in question, (3) that
they can communicate their recollection verbally, (4) that they understand the
questions put to them on the stand, (5) that they are able to give intelligent
answers to the questions put to them, and (6) that they are aware of their duty
to speak the truth.
Melton (1981)
who wrote about this more than ten years earlier, suggested that a child
witness must have: (1) The cognitive skills to adequately comprehend what they
have experienced, (2) be able to organize that experience cognitively, (3) be
able to differentiate the memory in question from other memories or fantasies,
and (4) be able to maintain and demonstrate these skills under stressful
conditions. Common to both Walker’s (1993) and Melton’s (1981) analyses, is the
notion that in conceptualizing their testimony, children must be able to order
the events in space and time, de-center their experiences and feelings, and
monitor their own responses and comprehension.
Greenhoot, Ornstein, Gordon, and Baker-Ward (1995) in their
examination of child witness behavior, suggest that young children’s verbal
reports about an event may not reflect what they actually remember, because
they cannot meet the behavioral and cognitive demands of the interview or
examination. This appears to be particularly true of the court experience and
is not necessarily limited to younger children. Older children often experience
difficulty on the stand as well. In addition to the cognitive and behavioral
demands of testifying, there is the underlying expectation that children can
tolerate the emotional demands placed on them.
It should be no
secret that children perform best when they are comfortable and understand what
is expected of them. Research over ten years ago by Peters (1991) demonstrated
that children’s memory performance was impaired if they were questioned about a
stressful event by an interviewer who employed a stressful confrontational
style. Moston and Engelberg
(1992) suggest that allowing social support may have a facilitative effect on
task performance. They too note that the intimidating physical environment of
the courtroom can undermine a child witness’s eyewitness testimony.
Saywitz and Elliot (1999) in their handbook Interviewing children in a forensic context, strongly
recommend an atmosphere that is not accusatory, intimidating or condescending.
They refer to the accumulation of research that suggests that anxiety impacts
negatively on children’s memory. It is no secret that the atmosphere in the
courtroom can be quite tense at times, even highly charged. Do children really
possess the emotional resiliency to deal with so much pressure?
If the prospect
of testifying in an intimidating setting is not enough to inhibit most
children, the fact that the proceedings are actually carried out in what has
sarcastically been referred to as a foreign language or “legalese” (Quas, Goodman, Ghetti, & Redlich, 2000), makes the experience even more difficult.
As will be explained in more detail later, many of the legal terms are
unfamiliar to children, the phrases too confusing, the
questions too abstract. When these obstacles are added to the other stressors
that have been described, the task of testifying can seem insurmountable to
children.
1.6 The Inquiry into the Oath: A Child’s
First Foray on the Stand
Courts around
the world have historically employed special inquiries to assess whether or not
children are competent to testify. In
One
recommendation that has been suggested is that in light of what we know about
children’s cognitive development, we need to modify our expectations and revise
our procedures when conducting inquiries into the oath. Another more radical
recommendation is that we should totally dispense with the inquiries and simply
have children agree to tell the truth on the stand.
Bala, Lee, et al. (2001), deal with this very issue in their recent
article on assessing competency in child witnesses. They point out that
Canadian law requires that a child witness must have an understanding of such
concepts as the truth, a lie, an oath and a promise, in order to be considered
competent to testify. Bala, along with his colleagues
conducted a survey of the judiciary on the nature of questions asked by them of
children during inquiries into the oath3. They found
that many complex moral, religious and social issues are raised with children
during these inquiries and that the level of abstract reasoning that is
required by child witnesses is often beyond their cognitive abilities.
In earlier
research conducted by the Child Witness Network (Child Witness Network, 1999)
and more recently by the Toronto Child Abuse Center Court Observation Study
(Department of Justice Canada, 2001), court observers noted great variability
in the nature of questions put to children as part of their inquiries. In
general, they too found that developmentally inappropriate questions were often
put to the children, questions that included complex ideas and difficult
vocabulary. They also surmised that much of what was asked during the inquiries
was beyond the understanding of most child witnesses who were under fourteen
and had to undergo the examination.
Another
criticism of the inquiries that has come to light is the continued dependence
of the court on a religious understanding of the oath. In some instances, very
complex religious issues are raised with young children. Bala
in his survey, found a consistent judicial expectation that child witnesses
have religious training and a religious understanding of the oath. The Court
Observation Study at the
Overall, the
research suggests that inquiries appear to reflect a lack of understanding on
the part of the court regarding the developmental trends in cognition and
language in children. For these stated reasons, the practice of having an
inquiry has been abolished in a number of other countries such as
1.7 Cross-Examination of the Child Witness
Just over ten
years ago in a Canadian magazine article called The Lawyer’s Weekly, (Schmitz, 1988), a defense lawyer wrote the
following advice for lawyers regarding the crossexamination
of child witnesses, “You have to go in there as a defense counsel and whack the
complainant hard at the preliminary...get all the medical evidence, the
Children’s Aid Society record...you’ve got to attack the child complainant with
all you’ve got, so that he or she will say, I’m not coming back in front of 12
good citizens to repeat this bullshit story that I’ve just told the judge”
(p.22). In criminal court, the process of cross-examination is confrontational,
accusatory and at times intimidating. Carter, Bottoms and Levine (1996) in
their discussion of criminal proceedings, suggest that the discrepancy between
competence and performance is a likely scenario in court for child witnesses of
all ages. They conclude from their study, that lawyers are skilled at
discrediting child witnesses in the courtroom through the use of conventional
strategies that intimidate them into silence, lead to contradictions in their
responses and produce emotional disorganization and distress.
When children
are asked about their cross-examination experience, they generally report that
the cross-examination was the most stressful part of the trial. In a three-year
follow-up study of child witnesses (Sas et al.,
1993), child witnesses were asked for their perspectives of the
cross-examination. One adolescent child made the following statement when asked
to describe the cross-examination: “It was all misleading questions and
trickery” (p. 113). Another younger child referred to their memory of the
cross-examination in this way: “The only thing I remember is how the defense
lawyer grilled me, twisted everything I said, made me feel like a criminal and
my step father the victim” (p. 114). A very small child reported “I hated him
[the defense lawyer] because of the way he asked the questions, he scared me”
(p. 118).
There is no
doubt that this stage of the process is particularly difficult for children and
often contributes to their demise as credible witnesses. Although this may be
the intended goal of the cross-examination, the method by which this is
accomplished does not recognize the imbalance that exists between the adult
questioner and the child who responds.
1.8 Facing the Accused - The Impact on Child
Witnesses
Of all the
fears that child witnesses report, facing the accused is ranked by children as
the most intense (Sas, Austin, Wolfe & Hurley,
1991; Whitcomb et al., 1994). Many studies have documented how children are
fearful about talking in front of the accused in the courtroom. It is no secret
that children are often threatened by abusers not to tell about the abuse, and
are afraid for their personal safety on the stand when they describe what has
happened. The nature of the threats that have been used to inhibit disclosures
have been well studied, and from these studies it is apparent that children are
often intimidated into silence, feeling vulnerable to further abuse when they
are in the presence of the accused. Unfortunately, the same abuser-victim
dynamic can exist in the courtroom.
Hafmeister (1996), in a survey of a large sample of American judges,
questioned them on their efforts to minimize the stress of child witnesses in
their courts. He found that most judges understood that children were fearful
of the accused, but were still not inclined to use screens or closed circuit
television provisions to protect them. They offered no explanation for this
reluctance.
In the recent
survey by Bala (1993) of approximately eighty
Canadian judges, regarding their inquiry and their use of legislative
provisions to protect child witnesses, one judge acknowledged that the presence
of the accused was often overwhelmingly frightening to a child.
Despite
everyone agreeing that children are often very frightened to face the accused
in court, screens and closed circuit TV provisions are rarely used for child
witnesses. At least in
1.9 Modifying the Criminal Justice System’s
Expectations of Child Witnesses
In summary, we
have many expectations of child witnesses, as Table 1 demonstrates. Most of
these expectations relate to traditional ways of dealing with matters in court,
and few of the expectations take into consideration the developmental abilities
and vulnerabilities of children. Historically, the actual treatment of child
witnesses and the reception of their evidence on the stand by courts in
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Table 1
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II.
CHILDREN´S COGNITIVE ABILITIES AND THEIR IMPACT ON COURT TESTIMONY
Cognitive
developmental research, where we draw most of our understanding about children´s thinking processes, is a significant area of
developmental psychology that investigates the acquisition of knowledge in
children. The relevance of cognitive development research for professionals
working in the criminal justice system with child witnesses cannot be
overstated. Many of our questions about the testimonial capacity of children
can be answered by a better understanding of the cognitive abilities of
children of different ages. For example, is it reasonable to have children as
young as three testify in court about their experiences given their stage of
cognitive development? What does this area of research tell us about how young
children make sense of the world around them, how they develop strategies to
organize the information they perceive and how they communicate that knowledge?
Should we modify the way we interact in court with children of different ages
based on what the research demonstrates about their cognitive abilities?
Unfortunately, despite an abundance of research in developmental psychology on children´s cognitive abilities, there has been little
impact on the way child witnesses of different ages are treated in court.
There are three
areas that form the basis of most research on children´s
cognition. The first area is the study of the structure of children´s
knowledge, in particular how knowledge is represented by children and how it
changes as they get older. For years Piagetian
theorists have suggested that there is a global systematic stage-like change in
how knowledge is represented in children (Piaget, 1983; Wadsworth, 1971). Piagetian theorists hypothesize that all children must go
through each developmental stage in succession as they age, and that children
of the same age are remarkably similar in their cognitive abilities. This view
of children´s cognitive abilities has generally been
widely accepted and appears to have impacted on the general treatment of
children by the courts and the reception of their evidence. Many procedural
decisions are made based on the age of the child witness offering evidence
(e.g., children under fourteen must engage in an
inquiry into the oath before they testify and legislative provisions such as
screens and even the availability of a support person for child witnesses are
limited by the children´s ages at the time of
testifying). Age specifications in statutes appear to represent implicit
developmental frameworks (Woolard et al., 1996).
However this
global theory of cognitive development has come under increasing scrutiny. As
early as twenty years ago, an unevenness in children´s cognitive abilities was discovered by Fischer
(1980). At that time, he suggested that children could be at one stage in one cognitive ability and in another stage in another,
something Piagetian theorists refuted. Recently, Klahr (1992) has suggested that cognitive development is
more about systematic changes in children´s
“capacities” to represent knowledge, than about the actual structures in which
their knowledge is represented. This too challenges early Piagetian
cognitive theory. Both the unevenness in cognitive abilities
in children and the emphasis on the capacity in children to represent
knowledge, reflect the current notion in cognitive developmental research of a
more fluid dynamic development in children, in which cognitive abilities are
constantly shifting and individual differences are considered.
The second
focus of cognitive development research in children has been on the processes
by which children acquire knowledge. How do children store and organize information
about the world around them? How does their knowledge regulate their behavior
in different situations? It has been suggested by Rogoff
(1990) that cognitive development in children is an apprenticeship in which
children slowly acquire knowledge and skills by participating in society´s structured activities together with their
parents. The hypothesized processes by which children acquire the knowledge to
help them make sense of the world and assist them to actively engage in it,
include all of the following; sensation, perception, attention, memory, concept
formation, language, symbolic functioning and thinking (Lee, 2000). For
example, much research has been devoted to understanding how a child learns
language, how they think about the world, and how the various processes such as
attention and language interact to affect a child´s
behavior. Is it true that in order for children to think about something in the
past, they first need language? Are pre–verbal children not able to remember
events until they develop vocabulary to give labels to objects and descriptions
for events in their world? When can children think about something that is not
directly in front of them?
Researchers
have found that even children under twelve months of age will remember an
object that is taken away from their point of vision. Is it only because they
have developed a word symbol or concept for the object? Is part of the memory
difficulty present in very young children related to their lack of language
skills? These and other questions are important to consider, in particular
because they have implications for preschoolers´ testimonial abilities, and for
young primary school aged children, who do not have well developed vocabularies
or metacognitive frameworks to organize experiences.
The third focus
of cognitive development research has been on the actual acquisition of
specific knowledge domain. What do children know and how have they acquired
those facts? What is the impact of the environment on children´s
knowledge? What do most children of different ages know about the physical
world? This area of study has particular significance for children´s
involvement in the court system. Most children do not have any experience with
court process and have not ever been exposed to a courtroom or the expectations
of the witnesses. They are unaware for the most part of the legal system, and
do not appreciate the fact that matters are routinely dealt with in court.
At what age do
children acquire the skills that are fundamental to the role of witness and how
do they learn theses skills? It is generally agreed that testifying in court
requires ’domain specific‘ knowledge. How many
children are familiar with the roles of various court personas, the procedures,
which exist, and the reasons why matters are brought to court in the first
place? Does this lack of knowledge and understanding of the adversarial system
in any way affect the reliability of the evidence they give, and does it place
them at a disadvantage compared to adult witnesses during a trial? Is it
possible to compensate for this lack of knowledge by educating children about
the court system?
What about
other knowledge? Children often have to give evidence about complex social
issues such as sexual abuse and domestic violence. Does
a lack of sexual knowledge, unfamiliarity with sexual terms and a lack of
labels for body parts make it more difficult for children to testify about
sexual abuse?
The area of
cognitive developmental research has examined different aspects of children´s cognitive abilities, many of which have direct
implications for testimonial competency. The next few sections will highlight
some of there pertinent areas.
2.1 Bridging the Gap in Knowledge for Child Witnesses
The notion of a
“zone of proximal” development in children suggests that one cannot teach
children what they are conceptually not ready for. Does this mean that in the
case of very young children we will not be able to explain how the Criminal
Justice System works and what their role as a witness will be? Is it possible
to scaffold or bridge children‘s knowledge of court by combining a preparation
approach that reduces the complexity of the demands placed on children
testifying and teaches them as much as possible about court and their role as a
witness? Are there some concepts which children of certain age ranges will not
be able to respond to despite preparation?
Much of the
court preparation that is offered to children by various witness programs
focuses on bridging the knowledge gap in children, by offering them basic
didactic information regarding the procedures in court and the expectations of
them as witnesses. Depending on the age of the child more or lesser amounts of
information are taught, but there appears to be a minimum core curriculum, which
forms the basis of most preparation programs. What has not been adequately
studied is the efficacy of the preparation offered by most programs and whether
children emerge with not only specific details and terminology, but also a more
global understanding of how the court system works. It can be argued that
without this more global understanding, children are at a disadvantage because
they fail to appreciate the premises upon which the proceedings are based. That
the process is adversarial in nature and not simply fact finding, is an
important concept, one which is not appreciated by many child witnesses.
According to
Melton (1981) even if a child doesn´t comprehend a
situation completely, they can still remember relevant facts for court. In
reviewing the current research on children´s
cognitive abilities, a general observation that has been made of the forensic
value of children´s reports, is that even very young
children can be logical about simple events that have meaning in their lives,
especially when the events about which they are asked are emotionally salient
for them (Goodman, Rudy, Bottoms, & Aman, 1990; Orbach & Lamb, 1999; Steward, Bussey,
Goodman, & Saywitz, 1993).
A single case
study reported by Jones and Krugman (1986) described
the disclosure by a three–year–old girl of her abduction, assault and
abandonment in an outhouse pit. Her account was found to be remarkably complete
and highly accurate, when it was later compared to the confession by her adult
abductor. In another study of preschoolers´ accounts of traumatic injury,
Peterson and
When children
enter the courtroom however, difficulties arise as they are asked age
inappropriate questions about the events that they have experienced or
witnessed. Little attention is paid to their cognitive abilities. Even if they
enter the courtroom with a clear idea of what has happened to them, they may
not be able to share their memories because of the way in which the questions
are asked in court and because they lack an understanding of the unwritten
“rules of engagement” in the courtroom.
2.2 Understanding the Meaning of the Truth
and Making a Promise to Tell the Truth
Much has been
written about children‘s knowledge of the truth and their appreciation of the
difference between a truth and a lie (e.g., Gopnik,
& Astington, 1998). The truth seeking function of
a trial is dependent on many different things, but in a case of child abuse
where the child is the only crown witness, it is vital that the child
understand that they have to provide truthful testimony. Haugaard
(1993) suggests that in order for the truth to be a meaningful concept in
communication between two people, they must share the same definition. Research
into children‘s perceptions of truth and their responsibility to tell the
truth, suggests that young children have definitions of truth and lies that are
qualitatively different than older children and adults.
Piaget (1962)
determined that the definition of lying held by children under age seven, was to commit a moral fault by means of language. His
research showed that young children under five tended to define lies more
broadly than older children or adults. Children between five and seven tended
to judge events from a perspective of moral realism. If a statement was
inaccurate, children perceived it as a lie, if a statement was accurate, it was perceived as the truth. Also in the case of
younger children, the intent of the speaker did not generally count in their
determination of truth and lie. It was only as children got older (over 7) that
the intent of the speaker became more important than the outcome.
A study by Haugaard et al. (1991) examined young children‘s
definitions of truth and lies in response to a series of three vignettes. The
first vignette described a situation in which a girl lied about being hit by
someone. The second vignette described a girl who lied to protect a friend.
Finally the third vignette described a girl who lied under the instruction of a
parent. The investigators found that most of the children they tested did not
have definitions of a lie that would disqualify them as competent witnesses in
court. All children tended to be able to identify the critical factor in
determining the truthfulness of the girl‘s statement in the three vignettes.
Ninety-four percent of the children correctly recalled that the girl was not hit
and said she was lying, and ninety-one percent of the children stated that a
friend who lied to the teacher to protect a friend was telling a lie as well.
With respect to the vignette involving parental instruction to lie, the
majority of children recognized that the girl was lying even when instructed by
an adult to say things happened in a certain way. The children examined in this
study, ranged in age from four to seven. The authors concluded that most young
children under 7 could discern a lie from the truth, and only a small
percentage of children erred. However, they cautioned that one should not
assume that all children have an adult-like definition of the truth.
A related area
of research by Astington (1988) on the act of
promising also has relevance for the conduction of inquiries into the oath. Her
research showed that children‘s understanding of the circumstances and
obligations entailed in promising emerges fairly late in their development. In
her study, she determined what types of speech
act five to thirteen year old children would call promising. The
children were presented stories in which a speaker sometimes promised an event
outside their control (predicting), or promised that a past action had been
performed (asserting). Children under the age of five had difficulty
differentiating between predictions and assertions because they tended to focus
on the outcome as the determining factor. In almost all cases, children‘s
judgment of the speech act as
promising or not, was in agreement with the fit between the speech act and the outcome. Between six
and nine years of age however, children started to distinguish between
promising and predicting in terms of the speaker‘s responsibility for the
outcome.
Astington (1988) concluded that the most important result of this
study was that children did not have a concept of promising as just a speech act, as something done simply by
saying. Children saw promising as including the performance of the promised
act. For them a promise was something you said you would do and was not a
promise unless it was done. For the children in her study, a promise was a true
statement. This definition of a promise differs from the definition of adults
who view a promise as simply a speech act
that does not depend on the outcome. It has important implications for court,
because it is suggested that when children promise to tell the truth, they mean
to do so with actions.
Young children´s understanding of promising has been more
recently studied by
Support for
this less intrusive practice and more straightforward approach was offered in
an early paper by Melton (1981) entitled Children‘s competency to testify. In
it, he suggested that asking children about the meaning of such abstract terms
such as the truth, an oath, a lie and promise, tells you more about their
cognitive intellectual development than their propensity to tell the truth. He
recommended that having children simply promise in court to tell the truth was
the best alternative.
2.3 Children´s Abilities to
Make Inferences About Other’s Intentions, and to Take Another´s Perspective
If children
under ten who are testifying are asked to infer the intent of an accused (“What
was the accused trying to do there, was he hoping to scare you and trick
you?”), or explain another child witness´s perspective
(”What were the other children thinking when the accused ran up to them?”) or
what another person would see if they had been there (“What would I see if I
walked into your room?”), they would have great difficulty. This is because
young children have problems describing what others are feeling, are not very
astute at inferring intent, and tend to respond to those types of questions by
simply projecting their own feelings and their own perceptions onto others.
Research on children´s abilities to infer intent in others, suggests
that although very young children can understand an intended simple act of an
adult, they can´t necessarily understand the adult´s intentions (Meltzoff,
2000). This skill develops slowly over time and with repeated exposure to the
behaviors of significant others around them. Asking young children on the stand
to infer motives to other´s behavior (Fivush & Hudson, 1990), or having them take another’s
perspective when they have not developed an appreciation for the fact that
others may see things differently than they do, is misguided and generally
leads to inaccuracies in children’s responses as they try to meet the demands
(Selman et al., 1983).
The development
of “mentalism” which refers to children’s
understanding of the mind (both their own and others) is critical to their
ability to infer. There are individual differences in the age at which children
first begin to construe others as having independent psychological states that
underlie their behavior (Fivush & Hudson, 1990).
Unfortunately, children three and younger have very limited abilities to reason
about the knowledge and states of others. Typically all children under the age
of seven will struggle unsuccessfully with this demand and children between the
ages of seven and ten will need assistance to accomplish this task. Over the
age of ten, much will depend on their individual experiences. The implications
of these findings for the court are obvious. The nature of the questions asked
of child witnesses must take into account their abilities to infer intent and
appreciate other’s perspectives.
Children also
have difficulty dealing with ambiguous verbal messages on the stand. This is
because they do not maintain a distinction between the actual messages in the
question on the one hand and the speaker’s intended meaning on the other. Their
social naïveté makes it difficult for them to see the double intent that exists
in a question put to them. Unfortunately, in court there are many occasions
during a cross-examination that questions have double meanings. Children are
asked questions, which on the surface seem straight forward, but have an
ulterior goal beyond the simple answer.
2.4 Dealing with Hypothetical Questions
Children can
have difficulty responding to hypothetical situations that are presented to
them by lawyers when they are on the stand. Questions such as
(“What if I told you that the car was not able to fit in the garage?
What if I told you that he wasn’t tall enough to reach the window from the
ground?”) are not appropriate. Children under ten do
not possess the abstract reasoning powers to allow them to integrate this new
information and to apply it to their existing knowledge about the situation.
They generally do not understand the term “What if?” Most children will simply
deny that the suggested scenario is an accurate description. They will not be
willing or able to entertain another hypothesis or integrate new and perhaps
contradictory information, because this involves a level of abstraction of
which they are not capable. Others will provide a response, which does not
incorporate the provided information. This is because they lack the ability to
change their own perspective and imagine another set of circumstances.
Children
typically do not develop the ability to deal with hypothetical questions until
they are at least ten or twelve and even then they are unsure of how they
should answer. Advising lawyers not to use this type of question would be a
good step towards ensuring that the responses provided by children are accurate
and within their stage of cognitive development.
2.5 Using Scale Models to Explain a Situation to the
Court
Young children
are often asked to explain their knowledge of something by referring to a
presented symbolic representation, “Show me on this drawing of your bedroom,
where the bed was in relation to the dresser and where you were standing in the
room”. DeLoache (1990) in her chapter entitled “Young
children’s understanding of models” suggests that when we use a scale model of
a larger space, young children may have difficulty simultaneously viewing the
model as an object in its own right and as a symbol of something else. The
ability to use models to explain situations increases gradually with age.
Development of the ability to accurately reduce to scale both distances and
heights in models is much more complex and takes longer to develop. Scale
drawings and models made by children under ten may not accurately depict
distances, such as how far away a bed and dresser are, or the exact placement
of a door. This is because they have not developed accurate concepts of
measurement, nor have they learned how to represent objects on a smaller scale
in a relative manner to each other. When questioning children on the stand,
everyone must remember that the ability to use representational models varies
widely, especially in young children and their use should be considered
cautiously.
The difficulty
children have using a scale model is much less of a concern when children are
permitted on the stand to use dolls or figures to represent themselves or
others, or when they are asked to point out on a figure where on their own
bodies they were tampered with. Props can be especially useful if children are
too shy, or lack the language skills to describe the acts perpetrated (Morgan
& Edwards, 1995). Caution should be exercised however with children under
three to insure that they understand that the doll figure is meant to represent
them. The development of a sense of self-separate from that of others, and the
ability to imagine that the doll is representing that self is necessary.
Luckily, most children over the age of three can do this competently.
2.6 Children’s Tendency to Attribute Knowledge to Adults
It is generally
reported that children do not as a rule appreciate that other people do not
know something that they themselves know. This is the case even if the
interviewer asking them the questions has not witnessed the to-be-remembered
event (Saywitz & Nathanson,
1993). This tendency for children to assume the existence of knowledge in
adults is related to a ‘social desirability’ factor (Robinson & Robinson,
1982), which causes children to view adults as omniscient. Unfortunately,
children’s assumptions that adults know everything that has happened to them,
can have a negative effect on the way they respond to questions by lawyers in
the courtroom. On the stand, young children will often assume that the lawyer
asking the questions really knows what has happened and so they do not offer
spontaneous information. An example of this was the case of a child witness who
expressed surprise during a court preparation session, when she was told that
she had to identify the accused in the courtroom. “Don’t they even know who he
is?” she asked incredulously (Anonymous, 2001).
Children
neglect to fill in the missing gaps in information when they are explaining
what has happened to the court. They tend to offer little or no details in
their accounts because they assume that the adult listener knows the details
and has the same information as they do. Unfortunately this strategy does not
work very well in the courtroom, because filling in the gaps is the child’s
role on the stand, not the lawyer’s role. In order to obtain more complete
information from children, direct questions are typically required. In this
way, lawyers elicit details about an event from children who provide only the
bare facts in their free narrative. The danger of course is when interviewers
or lawyers in court use misleading or suggestive questions.
Informing
children up front that one does not know what they know has been shown to
reduce the suggestibility of misleading questions (Mulder
& Vrij, 1996). This strategy should definitely be
employed with children on the witness stand before they are asked any
questions. In court preparation sessions, telling children that only they have
the crucial information because they were there is a useful way in which to
empower children to give more complete answers when they get to court.
2.7 Children Don’t Know That They Don’t Know Things
Another area of
potential difficulty for young children on the stand is that they don’t know
what they don’t know. This problem was identified over twenty years ago in a
study by Markman (1979) entitled Realizing that you don’t understand: Elementary
school children’s awareness of inconsistency. He was one of the
first cognitive researchers to realize that children can have difficulty with
“comprehension monitoring”. Simply put, they often fail to realize that they
have not understood material or questions put to them. For example, in the
context of court, when children are asked if they know what a hearing is, they may nod affirmatively,
but then if they are asked to explain, their responses can reflect a complete
misunderstanding of the term.
In their
research, Flavell et al. (1981) demonstrated that at
times children fail to realize that they have insufficient information to
correctly interpret the world around them. This has important implications for
their role as a witness in court. When children are testifying, it is important
that they actively monitor their own comprehension throughout the proceeding.
When they are responding to a question, they must understand the meaning of the
question so that their responses are accurate descriptions of what has
transpired.
Although they
are generally too young to have what can be described as “higher order”
understanding, more specifically an ability to put into context the purpose of
some of the questions put to them and the relevance of their answers to their
overall credibility, they must at least be able to
understand the simple questions put to them.
Children’s
monitoring of their own comprehension develops slowly over time. Children often
need external assistance to help them monitor their comprehension. This is
particularly true of children under ten who do not always do it on their own.
Obviously one step towards making sure of children’s comprehension in court, is
to respect the cognitive limitations of children, by asking simple well-phrased
questions that are age appropriate. This goes a long way to improving the odds
that a child will understand what is being asked and respond appropriately. The
other step is to continuously check their comprehension by asking them during
the examination-in-chief or cross-examination, to either paraphrase what has
been said to them, or explain what they believe the words mean.
Once children
are ten and older, there are different issues to be aware of with respect to
their ability to monitor their own understanding. Although their ability to
monitor their comprehension improves with age, older children tend to be
unwilling to share their ignorance with those around them, usually out of
embarrassment. Their comprehension must therefore be monitored as well, but in
a way that does not embarrass them and allows them the opportunity to concede
their lack of understanding.
2.8 Children’s Abilities to Estimate
Duration, Frequency of Events and Dates
Children are
usually asked when incidents occurred and how long they actually lasted. Often
they are asked to provide information on the actual number of times abusive
acts took place in the past. What does the literature actually tell us about
children’s abilities to count and estimate frequency?
Observations of
children on the stand suggest that they have great difficulty estimating the
number of times an event occurred. This is especially true when children are
asked to recount the frequency of abusive incidents that have spanned several
years. Children tend to be able to talk about the first and last time an event
occurred, but have difficulty enumerating the other times in between. Although
young children may be able to count up to 100, this is only because they have
memorized the referents in order. They may still demonstrate difficulties
counting up similar events and coming up with a grand total for the court.
Conventional
systems of time measurement such as seconds, minutes, hours,
days, weeks, months and years are learned gradually over the course of
elementary school (Saywitz & Camparo,
1998). There is great variability in these skills, even in same-aged children.
This is because these concepts are very abstract and children only understand
them once they can make a connection to real life events. Young children are
not able to definitively say how long something took to complete. The duration
of an event is hard for them to estimate because they have not yet learned how
long seconds, minutes and hours take. They also do not appreciate the
relationship between these time segments. Very young children may respond to a
question like “how long did the touching last?” with a response suggesting five
seconds, when they actually mean something more like five minutes! This of
course presents a challenge for the court. Determining that a
child is not credible because they have told the court that the sexual
intercourse took only five seconds ignores the argument that developmentally
inappropriate questions do not further the goals of fact-finding and truth.
With respect to
days, weeks, months and seasons of the year, young children may be able to
rattle off the names of the days of the week or the months of the year, but
they still may not have an understanding of the broader picture, that is the
relationship that exists between all of these concepts. Many children do not
know which days are the weekdays and which days make up the weekends. Some
children do not know which months occur in the different seasons of the year.
Most children ten and younger, know the current calendar year and the year they
were born, but have difficulty placing other significant events along a time
line in between. That is why young children do not know if an event occurred
over a long time ago or a short time ago (Park & Renner, 1998). Especially
for preschoolers there is no distant past, just a yesterday. For primary school
aged children, there is a past, but it is very compressed.
With respect to
telling time, preschool children cannot tell time accurately. That skill
generally develops in children over eight and even then is not well established
until age nine or ten. Asking young children what time a certain event occurred
is likely not going to be helpful, as the responses will not be accurate. It is
more meaningful to ask children to relate when an event occurred relative to
other time markers in the day (breakfast time, lunch, after school, supper,
just before bed).
A related
ability to telling time is the estimation of age. Children have great
difficulty estimating another person’s age. Anyone who has children in
elementary school has arrived at school on “meet the teacher’s night” to find
out that their child’s very old grade one teacher is at most twenty-nine. The
best way to approach that line of questioning is to have the child compare the
person they are talking about to someone they know in their family.
In summary,
observations of court proceedings have shown that despite known difficulties in
the area of measurement and time, child witnesses are regularly asked to
explain to the court exactly when an event occurred, that what time of day,
which day of the week, what month and what year. They are asked to estimate how
long ago the event occurred relative to when they disclosed and relative to the
court hearing. If more than one incident occurred, they are expected to
remember how many times the incident happened and even how much time elapsed in
between incidents. They are also expected to estimate the length of time the
incidents endured. This continues in spite of a sound knowledge base indicating
that this is not the way to question children about events that have happened
in their lives. The approach, which should be endorsed by the court, is the
promotion of questions that do not require well-established numeracy
skills and an ability to place events exactly in time.
Another
approach is to insure that when charges are being laid on behalf of a child
complainant, a long period of indictment in which the offences are alleged to
have occurred should be considered. Perhaps child complainants can only
remember that they were living in a certain house, or attending a certain
school when victimized. A longer period of indictment will allow for this
flexibility. In determining this indictment period, it will be helpful if
family families can remember other relevant events that may assist the court to
narrow in on the dates.
Based on
findings emerging from the research, the rule of thumb should be that abstract
concepts such as estimating the time and date an event occurred, determining
the frequency and duration of incidents should be avoided by everyone when
possible. However, regardless of the child witness’s age, asking the right
questions in court will be a challenge and deserves careful consideration.
2.9 Children’s Concepts of Court
The reality is
that most children know little about court and the criminal justice system
before the age of ten and why should they? Some children may have
misconceptions about court based on their exposure to television programs that
exaggerate or distort what really takes place. Others have no idea about what
happens in a courtroom. Child witnesses find themselves on the stand when they
are complainants in sexual abuse or physical abuse cases, or perhaps as
witnesses to the abuse of other children, or when they observe the assault or
murder of adults in domestic violence cases. Whenever it is deemed that they
have forensically relevant information to share about what they saw or
experienced, they can be potential witnesses. When that decision is made, they
are then thrust into a system that is very foreign to them.
Warren-Leubecker, Tate, Hinton, and Ozbeck
(1989) have pointed out that a child may see the judge as a big man in a black
robe with the power to punish, yet not understand that they will not be the
object of that punishment. Younger children in particular may think that they
understand the legal process, but in reality are subject to serious
misunderstandings.
There have been
a number of excellent studies assessing children’s understanding of the legal
process (Cashmore & Bussey,
1990; Flin et al., 1989; Melton, Limber, Jacobs,
& Oberlander, 1992; Peterson-Badali , Abramovitch
& Duda, 1997; Saywitz
et al., 1990; Warren- Leubecker et al., 1989). Most
of the studies have focused their attention on age differences in children’s comprehension
of court procedures. One consistent finding that has emerged is that as
children get older, they do acquire a better understanding of the legal terms
and court procedures.
Flin et al. (1989) studied approximately ninety Scottish children, aged
six, eight and ten years. They found that by age ten most children understood
the role of the judge, the role of a witness, the role of the police, and what
it meant to break the law. These children did not however understand the roles
of the lawyers and of the jury. They were not familiar with what a trial was or
what was meant by the word “evidence”, and none of
them understood why a court would rely on evidence in determining the outcome.
In the
In 1990, Cashmore and Bussey studied
Australian children’s knowledge of court personnel. They examined children
between the ages of six and fourteen and similarly found that there were age
trends in knowledge. They found that the role of the judge and witness was
understood first and then the role of the lawyers and jury. In 1997, Peterson-Badali and colleagues found that most youth offenders
charged with offences were unclear about the lawyer-client relationship. They
examined youth at risk of re-offending at a treatment program and were
concerned about the lack of knowledge that these young adolescents demonstrated
regarding due process and the criminal justice system.
Victim witness
support workers and child witness support workers, who prepare young children
to testify in court, indicate that they are often struck by children’s
ignorance of legal terminology and procedures and by their naïveté. Children
typically assume that all the adults in the courtroom will believe them when
they explain what has happened and that all the adults (other than the accused)
want the same court outcome as they do. Often this belief is even extended to
include the accused, especially when it is a family member. Young children have
been overheard to say with great conviction that their offending parent will
probably tell the truth about the abuse in court because no one is allowed to
lie in court, or that the offending parent will tell the truth because they
will feel badly for them (the child) when they cry on the stand. Needless to
say, this does not happen often in court.
Children’s
feelings of goodwill and their high expectations of the adults in court are
especially extended towards the judiciary. Children cannot understand how a
judge will not believe them when they are telling the truth. Many children have
unrealistic expectations of the judge, seeing the judge as some one who will
right all the wrongs that have been committed by the accused. It is not
surprising that explanations of how a judge arrives at a
decision employing a standard of beyond a
reasonable doubt is so hard for child witnesses to
comprehend. They expect the judge to see the events from their perspective.
This is one of the reasons why court preparation is so important for child
witnesses.
Another reason
why children have difficulty in court is that children do not appreciate that
the defense lawyers are not on their side. It can be quite painful to watch
their bewilderment when they are rigorously challenged and intimidated on the
stand. This is because young children (under 10) have difficulty understanding
the adversarial system, the competing roles, two diametrically opposed views,
and two different goals related to the same court matter. Children do not have
the necessary cognitive skills to appreciate the underlying rules of the game.
As a result, they are not guarded or careful in the same way as an adult will
be when they are questioned on the stand. They do not appreciate that the
motivation underlying a challenging cross-examination is to discredit them.
When a defense lawyer suggests misinformation to them, they tend to view it as
an honest mistake, not a tactic to discredit them.
Developmental
studies support anecdotal observations that children under nine years of age
may expect a degree of sincerity that is not present in the adversarial process
because they have not yet developed an appreciation of the conditions that
violate the sincerity postulate.
This failure to understand a lawyer’s intent can influence how readily a child
might acquiesce to misleading questions on the stand. Not understanding the
“big picture” in a court case makes child witnesses more vulnerable to attacks
on their credibility.
An appropriate
analogy might be a situation where as part of an assessment process, an adult
is asked to put together puzzles from the Weschler
Adult Intelligence Scale (WAIS), but not told that there is a time limit in
which to complete all the puzzles. Not knowing this, the adult works slowly and
meticulously reviewing each step for accuracy, but only completing half the
number of items. This strategy would lead to a very low overall score. In that
scenario, understanding that time is a factor was very important and not
realizing this negatively affected the outcome. A similar problem confronts
young children when they testify in court. Because they are not aware of the
underlying rules of the game and because they operate under a sincerity
postulate that is not always shared by the adults questioning them, the outcome
can be compromised.
Eltringham (1999), in a draft paper written with Aldrige
entitled The extent of children’s knowledge
of court as estimated by Guardians ad Litem,
suggests that many professionals in the criminal justice system overestimate
the extent of children’s knowledge about court. In this paper he attributes
this overestimation of children’s knowledge to a failure to adopt the
“psychological perspective” of children who are trying to navigate the court
system. In the study, they found a discrepancy between what eleven-year-old
children actually knew about court and what the Guardians ad Litem thought the
children knew. They surmise that children are at times not well prepared
because of this misperception and advise that more effort be made to assess
children’s understanding and knowledge.
In a recent PhD
dissertation at
If anything,
all these studies emphasize the imbalance that exists in the courtroom when
children who are not familiar with the legal terms and court procedures are up
against adults who understand more and have a sense of the “whole picture”. The
need for court preparation programs to help child witnesses understand the
criminal justice system and interact more effectively cannot be overstated.
In summary,
variability in children’s thinking and knowledge exists between children of
different ages, and between different children of the same age. Variability can
even occur in the same child in different problem solving situations (Siegler, 1991). Children can function at a higher
developmental stage in one content area than another, if they have had
extensive practice (Lee, 2000). Woolard et al. (1996)
suggest that psychological research must mirror the trend in developmental
research toward identifying developmental pathways or trajectories that lead to
relevant behavior. In the case of child witnesses, this is particularly
important, as ignoring this variability in cognitive abilities can create
difficulties for professionals who are faced with the prospect of determining
the testimonial capacity and communicative abilities of a particular child who
is going to testify.
Table 2
summarizes the relevant findings on children’s cognitive abilities as they
relate specifically to the demands of being a witness in court. Clearly the
findings speak to the need for lawyers and the judiciary to modify the nature
and content of many of the questions that are put to children on the stand.
|
Table 2
|
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III. LANGUAGE DEVELOPMENT IN CHILDREN
From birth to
ten years of age, children learn to discriminate and articulate sounds,
comprehend increasingly more complex questions, and give more complex
intelligent answers (Saywitz & Goodman, 1996).
They learn the meaning of words, how words are used in sentences, and the rules
of language that dictate the way the words are connected to produce different
meanings. This is not an easy task. In court, child witnesses of all ages are
expected to respond to questions put to them on the stand in an intelligible
and credible manner. Adequate language skills are a pre-requisite.
In the first
two years of life, children develop conceptual machinery to link object names
with their referents. As any parent will attest, children become little naming
machines, learning new words at an exponential rate. At first, there is a
tendency for them to apply the same words to different classes of objects
(e.g., calling all animals “doggie”; all drinks “juice”; or all transportation
vehicles “cars”). Once they learn a referent for an object however, they begin
to do the opposite too, believing that only their dog is a doggie and that all
the other dogs are something else. Through the process of social learning,
children model what they hear, learning to generalize when appropriate and
respecting singular cases when necessary.
The
generalization process involves the process of abstract thinking, specifically
the ability to categorize items by their similarities and to extend terms to
objects that share certain characteristics. Words like “fruit” or “animals”
which develop later, are considered hierarchical terms which include classes of
items with similar characteristics. An interesting example of an abstract
hierarchical term used during a cross-examination of a very young child is
given by Singer and Revenson (1996). In the case they
describe, a preschooler denies seeing a weapon at the scene of a murder, but
later on when asked more specifically if he has seen a gun, he answers yes. The
problem of course is that the child has not yet learned the hierarchical term
“weapon” to refer to objects such as guns, knives etc. Once a direct question
is put to the child using vocabulary and concepts he can understand, he is able
to provide the information to the court. In this case, it is lucky that the
lawyer pursued another line of questioning with the child.
3.1 Toddlers
Most children
by age two, have about five to six hundred words at
their disposal. They do not however have the ability to organize these words
together into full sentences. It is readily apparent that a significant
discrepancy exists between a toddler’s receptive language abilities and
expressive production. For example telling a two-year old to “pick a ball off
of the floor” is likely to be understood and depending on the mood of the
child, carried out. However the child will not be able to repeat that exact
command to an interviewer if asked to do so. He might be able to say ‘ball’ and
‘up’ in a two or three word cryptic sentence, or maybe not. The ability to
produce a complete sentence with the correct verb and appropriate prepositions
is not developed until the child is older, at least three.
3.2 Preschool Aged Children
Preschool aged
children (three to five) have a greater lexicon (store of words and idiomatic
expressions) available to them. A general rule is that they understand words
that have only one or two syllables (Saywitz, 1995).
They can usually speak in short full sentences and their recognition vocabulary
can be quite impressive. Once again however, their receptive language skills
surpass their expressive speech. Their appreciation for the grammatical rules
of language is still very unsophisticated and they
have considerable difficulty using the past tense, often phrasing their
responses in the present even when describing things they have already done.
3.3 Early Primary School Aged Children
In the case of
early primary school aged children, prepositions can still present a challenge.
Confusion often arises when terms such as “before and after”, “under and over”,
“in and out”, “first and last”, “in front and behind”
are used. It is advisable to canvass a child’s understanding of those terms
before engaging in the questions. Generally, the research on language
acquisition in children suggests that by the time children are between the ages
of five and seven, they have developed sufficient language skills to
participate in everyday language, but are not so proficient in language use
that they should understand everything about a language task. Sentences with a
preponderance of difficult words and complex syntax are likely to be
misunderstood.
3.4 Late Primary School Aged Children
Due to a
limited vocabulary, primary school aged children lack descriptive adjectives,
making the provision of details and an elaboration of their accounts difficult.
By the time they are in grade three, they have generally developed an increased
ability to make better sense of questions put to them, as their receptive
speech has increased and their reasoning ability is more sophisticated than
preschoolers. Around the age of eight, they have learned to distinguish between
different speech acts such as commands, complaints,
requests and promises, and are able to recognize these speech acts in both
their direct and indirect forms (
As we study
conversations that take place between children and adults, we realize that
young children (under 10) do not necessarily interpret words in the same manner
as adults. They may interpret words literally, that is, either very narrowly or
very broadly. Schumann, Bala and Lee (1999), suggest
that young children’s interpretations of the word “touch” is an example of
under extension or narrow use, because children commonly understand “touch” to
mean only with the hand and not another part of the body. In this example, one
can easily see how a narrow use of a term might present a challenge to a
child’s credibility in a sexual abuse case where the child’s body was “touched”
by the accused’s mouth or penis, but the child
responded no to the question “Did he touch you?” in court.
3.5 General Language Skills
Conversational
speech involves a give and take of questions and answers. The question and
answer format used in court during examination-in-chief and cross-examination
is not generally how young children converse. They like to introduce their own
topics, ask their own questions and express how they feel, much of it
unsolicited. They have difficulty just answering the questions put to them, and
they do not like to wait for their turn to speak. This of course is not
acceptable behavior in a witness, and often times children are cut off in mid
sentence when they are testifying. The less formal “give and take” of everyday
conversational speech, is quite different than the interrogation they are
subjected to on the stand.
Though children
demonstrate an increase in the number of actual words they can produce by the
time they are in elementary school, they still need to have simple sentences
put to them. The general rule of thumb is that you match the number of words in
the question with the age of the child. This unfortunately is not standard
practice, as a review of child abuse court transcripts by
Greenstock and Pipe (1996) in their analysis of forensic interviews of
preschool and primary aged children noted that children have great difficulty
with tag questions (e.g. “She wanted you to go with her, didn’t she?” or “There
were many people sitting in the dark room, is that a fact?”). They also have
difficulty with negative termed questions (e.g. “Didn’t you feel angry at
him?”). Children only begin to understand those types of questions when they
are around eleven or twelve years of age.
Saywitz and Nathanson (1993) suggest that
children under 12 generally have problems when questions ask more than one
thing at a time. For example, if an eight year old child is asked the following
question, “On Monday night, you did, didn’t you, go to your baby-sitter’s house
after school and have ice cream, before you went to the store with your dad?”),
she will not know how to answer. It is apparent to many professionals who work
with children that a young child will have difficulty breaking down such a
question and answering each part separately. In a question like the above, how
can the questioner know if the child does respond with a ‘yes’, what part of
the question the “yes” refers to? It is highly recommended that asking several
simple questions in order to get the same information is a better strategy.
It is no secret
that the language employed in the courtroom is anything but everyday language.
If one were to
review court transcripts of child witness testimony, it would likely reveal
that words such as “frequency, remind, recollection, refresh, estimate, recall,
expect, view, regular, routine, occupation, interests, respond, time frame,
address, surname, relation, related”, and phrases such as “my esteemed
colleague, my duty prevails me, without consideration of the facts,
notwithstanding what you’ve been told”, to name but a few, are routinely used
by lawyers during their examination of children. These words and phrases are
not typically used or understood by children in their everyday language, yet
are often used in court during questioning.
One obvious
recommendation is that more effort be made to tailor the language employed in
the courtroom to the child’s individual stage of development. This involves
some assessment of the child’s communicative abilities before they testify, and
knowledge and motivation on the part of those asking the questions to phrase
them appropriately. Table 3 offers some guidelines from the literature on
language acquisition in four age groupings: preschool children, early primary
school aged children, late primary school aged children, and early adolescence.
Table 3
|
Receptive and Expressive
Language Acquisition in Children of Different Ages |
||||
|
Language
Skill |
Preschool
(3-5) |
Early
Primary (6-9) |
Later
Primary (10-12) |
Early
Adolescence (13-14) |
|
Conversational Skills |
Minimal |
Yes |
Yes |
Yes |
|
Understanding of grammatical rules of language |
No |
Unsophisticated |
Yes |
Yes |
|
Total Lexicon of words |
Limited |
Adequate |
Yes |
Yes |
|
Understanding of higher order referents |
Minimal |
Developing |
Yes |
Yes |
|
Understanding of complex sentences |
No |
With difficulty |
Yes |
Yes |
|
Proper use of prepositions |
Minimal |
Developing |
Yes |
Yes |
|
Availability of adjectives and adverbs |
Limited |
Developing |
Yes |
Yes |
|
Familiarity with different tenses |
Limited |
Yes |
Yes |
Yes |
|
Fluidity of speech, proper pronunciation |
Varies greatly |
Yes |
Yes |
Yes |
3.6 Knowledge of Legal Terminology
As previously
discussed, there is a domain specific language required of witnesses that
includes legal terminology and a particular language style referred to as lawyerese or legalese. This language style characterizes
the verbal communication in the courtroom between the various court persona and the child witness on the stand. Children are
expected to demonstrate communicative competency in order to be able to give
evidence, however the real expectation is that they be able to use and
understand the language of the courtroom. Unfortunately, given what we know
about the lexicon (store of words) and idiomatic expressions of most children
under 10, this is unrealistic without court preparation. For very young
children, scaffolding the gap between their language skills and the complex
terminology used in court through court preparation is challenging.
A fair number
of studies have been carried out on children’s understanding of legal terminology,
as previously noted in this paper. Age related differences in children’s
understanding of most court terminology have been consistently found. Many
common legal terms such as evidence
and testify are not familiar to
children and younger children in particular do less well than older children
when asked what legal terms mean.
Flin et al. (1989) have warned that simple recognition is not always
an accurate predictor of accuracy and understanding. It is not sufficient to
simply ask a child if they recognize a legal term. For example, at the child
witness project in
In fact, in the
majority of studies carried out to date, most legal terms are not accurately
defined until children are ten years of age. An excellent analysis of the
responses that children make when asked to define legal words that they do not
really know was carried out by Saywitz et al. (1990).
They found that there are typical patterns of errors made by children in
response to legal terminology that they do not understand. Younger children who are under age eight, tend to make auditory discrimination
errors in which they confuse the meaning of words that sound the same, and
homonym errors where they do not recognize that words can have two meanings.
Children know
less vocabulary than adults, but do not always realize their lack of knowledge.
They tend to guess at the meaning of words put to them, drawing examples from
their own limited life experiences. It does not occur to them that a word might
mean something else, because the social context is different. When corrected,
young children resist the suggestion that there might be another meaning
because they tend to be quite single minded and cannot conceptualize that a
word can have two meanings.
Schuman et al. (1999) in their excellent article entitled Developmentally appropriate questions for child
witnesses, give many examples of questions that are age
inappropriate and summarize the general cognitive and language skills that
children of different age ranges possess. Like others who have written about
this topic, the findings demonstrate that there are a number of potential
mediators of children’s knowledge of legal terms, not the least of which is
their vocabulary and their experience of the world. Table 4 provides a summary
of the research findings on legal terminology understood by children of four
age groupings.
|
Table 4 : Common Legal
Terms and Roles Understood By A Majority of Children in Different Age Ranges
|
IV. MEMORY IN CHILDREN
More than any
other area of research in child development, the study of memory, more
specifically the study of children’s abilities to remember events that have
happened to them or that they have witnessed, has been a central focus in the
overall evaluation of child witness competency. This interest has been timely,
because children have been called upon in increasingly numbers in
Ornstein et al.
(1991) suggest that verbal memory is central to effective testimony, as
children cannot provide accurate reports about events that cannot be
remembered. It is therefore important for the court system that research
studies examine how and what young children can recall and how their memory
abilities change with development. Only with a clear understanding of the
process of memory in children can we even attempt to apply this knowledge to
such settings as the courtroom.
Bringing
children into the courtroom to talk about their past has not been without
controversy. Arguments have ensued over whether or not children can provide
accurate accounts of their past experiences and more recently, concerns have
been raised over the so called “malleability” of children’s memory (Ceci & Bruck, 1993; Poole & Lamb, 1998). The following section
will summarize some of the findings to date in the area of children’s memory.
The problem of suggestibility in children’s memory, and current recommendations
for interviewing styles which safeguard against tainting children’s accounts
will be included as well.
The quality of
children’s memory is best viewed as dependent on developing cognitive meta-structures
or frameworks, which assist children in organizing and interpreting the
remembered material and facilitating retrieval. Many authors emphasize that
memory in children must be understood within the context of their cognitive,
language, emotional and social development, as well as the broader
environmental setting in which the events have taken place.
There are
characteristics of children such as their stage of cognitive development, their
emotional state at the time and their knowledge base that affect how they
remember an event. There are also characteristics of an event (e.g., whether it
is traumatic, personally salient, witnessed but not experienced), which affect
the initial memory trace. As well, the individual characteristics of children
interact with the characteristics of the interview itself (such as the nature
and complexity of the questions and the personality style of the interviewer)
to affect how children remember the event at the interview and what information
is finally reported. All of these different factors will be covered in this
section.
4.1 The Processes of Memory
Ornstein (1995)
has described a framework for how information flows within the memory system.
He has identified three interrelated processes: encoding, storage and retrieval.
During the process of encoding, details of an event are entered into memory.
This encoding can be deliberate, such as when children are studying words for
an upcoming school quiz or memorizing the rules to play a board game, or it can
be incidental as in the case where childr remember
information about an event without having the expectation that they need to
remember any specific details about that event. This latter situation more
closely resembles the situation that faces most children who are interviewed
about their experiences in an investigative interview and then are expected to
testify in court. In cases of child victimization, children have no idea at the
time they are in the situation, that certain details should be put to memory in
case of future questioning. The information that is entered into memory is
acquired in an incidental fashion.
It is
hypothesized that the strength of the information, which is stored in memory,
is affected by whether it is remembered incidentally or purposefully. Stronger
representations are thought to be retrieved more readily, whereas weaker
representations are more difficult to access. This helps explain why some
details are not available in children’s accounts of their victimization
experiences when encoding has been incidental.
The next stage
in memory is when the encoded information is stored. It is hypothesized that
children’s abilities to store information is well established very early in
life. The difficulty is that they lack the meta-cognitive framework to organize
the encoded information effectively until they are at least between the ages of
five and ten. If we use the analogy of a library system to represent the
process of memory in young children, we can say that children tend to be poorly
organized librarians. They do not necessarily catalogue the books or encoded memories in a systematic manner such as
alphabetically or by subject matter. Therefore although the ‘books’ may be in
their library system, it is difficult for them to find specific books without
other cues or reminders as to their location on the shelves.
The third stage
in memory is retrieval, which is the means by which children attempt to access
their encoded memory in storage and provide a verbal account. Retrieval is
dependent on at least two factors: (1) whether the information was ever encoded
in the first place, and (2) whether children can access it, in response to the
questions that are put to them. Retrieval is therefore to some extent dependent
on the nature of the cues provided to children to assist them in accessing
their memory storage. It has been suggested that young children need more help
than older children to remember, and more social support in the form of
specific questions, prompts and cues to produce the details they have encoded (Fivush, 1993). That is one reason why they tend to produce
less information about an event in free recall. Although it is possible that
they may have encoded less detail at the time of the event, it is more likely
that they have difficulty retrieving the details they have encoded, without
external cues from the interviewer.
In general,
research has shown that increased information processing abilities, better use
of memory strategies and greater knowledge, all interact to produce more
accurate and stronger memory traces in children older than five, than in
children three to five (Ornstein et al., 1992).
4.2 The Use of Narrative Accounts in Memory
Retrieval
involves more than just reporting details of an event. Neisser
(1982), explained that in order to produce a coherent account of an event,
children must talk about the who, what, where and where of an event. This
requires the ability to produce a narrative account of what has occurred in the
past. The use of the narrative form improves with age, and by age five or six
children are able to provide a fairly coherent narrative about a personally
experienced event (Hudson & Shapiro, 1991). Unfortunately, preschool
children do not have the narrative skills to recount past events in a
sequential form and therefore are dependent on others to provide external
structure in order to produce the event in a meaningful order. Many protocols
strongly advocate the use of free narratives when questioning children about
forensic events. Although this may be a good way to start an interview, this
method will generally not offer the interviewer sufficient information when
young children are involved. A balance appears to be in order.
Take a scenario
where an intruder has been discovered in the boys’ washroom during a routine
check by the janitor at an elementary school. Ten male children in two classes,
who have used the washroom that morning, are later interviewed by the principal
about their visit to the washroom.
In the first
interview, the principal asks a five year old child the following introductory
general question, “Can you tell me all about your day in school today?” The
child mentions a number of irrelevant activities that have taken place in the
classroom, describing that they did counting and drawing and that he ate his
snack, which was vanilla pudding. There is no specific mention of his visit to
the washroom. The principal then asks if the child went to the washroom in the
morning. The child nods and reports that he washed his hands afterwards because
he didn’t want germs. No other information is forthcoming. The principal then
asks if he was alone in the washroom when he went there. The child responds
with a one-word answer, “no”. The principal then asks who was in the washroom
when he was there and the five-year old boy responds that there was a man in
the washroom too. The principal asks what the man was doing in the washroom and
the child responds that he was “hitting” his privates near the sink. More
direct questions then follow in order to solicit details about where the man
was and if he had removed his clothing. The child offers nothing spontaneously.
In contrast, a
ten year old boy is asked about going to the washroom, and offers a fairly
detailed account of what has transpired, corroborating much of what the five
year old disclosed in response to more direct questions. However, he too offers
nothing about the man in the washroom in response to the first very general
question “Can you tell me all about your day in school today?” It is noteworthy
too, that neither of the boys mention the man in the
washroom to their teacher. In fact there are no unsolicited disclosures from
any of the boys who have used the washroom that morning.
4.3 Age as a Factor in Memory
Ornstein et al.
(1991) hypothesized that with age there are corresponding changes in a variety
of cognitive functions that influence the acquisition and storage of
information and retrieval of that information in the memory system. Of all the
variables that have been examined in the literature on memory in children, age
of children has been the most significant. The research strongly suggests that
there are age differences in children’s recall in both laboratory studies and
in the natural environment, indicating that older children may produce stronger
representations in storage than younger children and remember more information
for a longer period of time (Ornstein, 1995; Ornstein et al., 1992).
These findings
help us to appreciate why much information adults feel is relevant to a
particular situation is not encoded and does not enter into storage, or has a
weak representation in storage, especially in the case of young children. As
children mature and they have a better understanding of what is meaningful and
relevant in a social context, they tend to encode more information and organize
it better. As the above sample of the principal and students showed, young
children don’t necessarily know what information the adult is looking for and
therefore do not scan their memories in the same way.
If we refer back
to the school scenario, it is likely that the younger child who was interviewed
had no idea what information was being sought by the principal because he did
not really understand what the man was actually doing in the washroom and did
not know that it was important information. In the case of the older boy, he
did offer information regarding the stranger in the washroom. The older child
required less cues and had a better sense of what was important for the
principal to hear. With assistance, both children provided accounts, which
corroborated each other.
4.4 Prior Knowledge and Memory
A child’s age
has been identified in the literature as impacting on encoding and storage,
because it is related to the child’s knowledge base. Specific domain knowledge is
a critical area in the study of memory. Clubb, Nida, Merritt and Ornstein (1993) have suggested that
children’s understanding of an event to which they are exposed will have a
profound effect on what they encode and what is stored in their memory. If this
is true, this may help us to understand how older children might understand and
encode more organized information about an experience of sexual abuse than
younger children who do not possess a basic knowledge of sexual behavior,
sexual terms, and sexual anatomy. If children don’t understand what is
happening to them, many peripheral details may not be encoded, as their
significance is not understood. Given this information, we need to modify our
expectations of children in this regard when they testify in court about sexual
matters and other complex social behaviors.
4.5 Impact of Anxiety on Memory
The role of the
child’s mental state at the time of encoding of the event(s) in question is a
relatively new area of focus in memory research with children. It stands to
reason, that in the case of child victimization, the remembered experience(s)
is often traumatic and frightening, and can cause extreme distress in the
child. Most recently, there have been some contradictory findings with respect
to whether heightened anxiety and stress at the time of an event has a positive
or negative effect on children’s memory. In some cases it has been suggested
that high levels of stress increase children’s abilities to focus and thus to
encode the information (Terr, 1988), but others have
suggested that too much stress at the time of the to
be remembered event can cause memory impediment (Ceci & Bruck,
1993; Merritt, Ornstein, & Spicker, 1994; Peters,
1989a; 1991).
If an event is
distressing at the time it is happening, it is conceivable that it is also
distressing when it is remembered later on. The research on posttraumatic
stress disorder (PTSD) has provided support for the notion that intrusive
memories of past trauma can be particularly anxiety provoking. One explanation
for poorer recall of details in traumatic memories may be that these details
are encoded in such a way that they are more difficult to access (Foa & Riggs, 1993). These authors propose that in adult
rape victims, traumatic memories are often disorganized and fragmented, because
they are encoded while the individual experiences extreme anxiety. They also
hypothesize that heightened arousal may decrease the range of stimuli to which
the individual attends. It follows that something similar may occur with children
who are traumatized as well. During a traumatic incident, children’s distress
may be so overwhelming that they are unable to concentrate and fail to perceive
much beyond the central act.
Another
plausible explanation is that even though the details may have been encoded,
their retrieval is hampered by the negative valence attached to the memories
and are made less accessible as a result of continuous attempts by children to
repress or push them from consciousness. More simply put, children may have encoded
many details of an abusive experience even during heightened anxiety, but are
unable to retrieve the memory traces. Retrieval can be hindered by the
traumatic quality of the memory traces and the need to protect one’s psyche.
This combined with the presence of less well developed cognitive structures to
help organize traumatic memories in storage, make remembering a traumatic event
more difficult.
Different
studies have found support for each explanation, suggesting that there may be
an optimum level of stress beyond which encoding is inhibited, and individual
differences in children’s reactions to stress, which together are responsible
for the varying amounts of information being remembered about a traumatic
event.
4.6 Long-Term Memory
What is encouraging
for those who advocate the participation of very young children in the court
system, is the literature examining children’s ability to correctly recall
events over time. Given the lengthy delays that are often characteristic of
cases in criminal court (up to two years), it is
possible that young children could be expected to talk about events that have
happened to them several years earlier. The good news is that even very young
children (aged three) appear to be capable of recalling much that is forensically
relevant (Ceci & Bruck, 1993).
If we review
some of the earlier studies on long-term memory, we find that most paradigms
have involved situations where children provide information about a past event
in free recall. Fivush, Hudson, and Nelson (1984)
were one of the first to study children’s long-term memory for a real life
novel event. They examined children’s memory for a museum trip in archaeology,
a day after, six weeks later and then one year later. What they found was that
the children’s memories remained stable over a six week period from the first
to the second interview, and although children recalled less detail a year
later, what they did remember was remarkably accurate.
These findings
led to more studies of children’s abilities to recall a real life event, rather
than simply word lists in laboratory memory tasks. Several studies went on to
examine children’s recall of brief but salient medical and dental procedures
over the short and long-term (Goodman, Hepps, &
Reed, 1986; Peters, 1989b). It was hoped that these studies would be more
ecologically valid (relevant to real life experiences) than previous laboratory
research on memory. In the study by Goodman and her colleagues, memory in
younger children (aged three and four) for a medical procedure, was compared to
memory for the same procedure in five and six year old children. Recall of
details did not decrease over delays that extended over nine days, but there
were age differences in amount of recall with older children remembering more
than younger children.
A slightly
different approach was employed by Peters (1987) who studied recognition memory
(in this case the ability to identify a picture of a professional who was
involved in the dental examination of the child subjects). Children between the
ages of three and eight were tested. There was no decline in recognition memory
between short-term (24 hours) and longerterm delays
(three weeks) and few age differences in recall at either time. Peters
suggested that for a recognition task, long-term memory was accurate for all
the children ranging from age three to eight.
More recently,
in a study by Ornstein et al. (1992), three and six year old children were
examined for their memories for a personally experienced salient event that is
a visit to the doctor. Children of both age groups remembered most of the
features of the check up at the immediate memory test, but there were
significant memory differences between the children of different ages at the
one week and three-week intervals, with older children remembering more
details. In fact older children tended to remember more details than younger
children at all points in time. They also found that in order to obtain the
details from the younger children, they had to employ more direct questions.
Recently,
Peterson and
The findings in
all three of these studies have important implications for the testimonial
capabilities of children. Their results contradict assertions by some that
young children (under five) are too young to provide accurate accounts about
personally experienced events, especially after a long delay. Their results
also support the practice of using cues in the form of more direct questions
with young children to help them organize their memories. It appears that
preschoolers can be expected to remember at least some central actions in free
recall and what they offer can be highly accurate descriptions of past events.
This is particularly true if they have personally experienced the event. They
need to be asked direct questions to elicit the details.
4.7 The Effect of Time on Forgetting
Behavior in Children
The effect of
time on memory is a forensically important area to examine, as there is usually
a lengthy delay before children testify about their experiences. Additionally,
delayed disclosures are often the case in sexual abuse, which means that by the
time children testify, months if not years have passed. It is true that we all
forget things over time. The saying “time heals” implies that over time, even
sad and hurtful memories fade into the distance and are less powerful triggers
of emotional distress. At the end of the day, the question that is of concern
to the court is whether children can give reliable information about an event
after a lengthy delay.
Typically,
testimony involves memory over very substantial delays. Research in memory
suggests that weaker memory traces are more susceptible to forgetting over
time. Younger children are hypothesized to form weaker, more disorganized
memory traces, therefore their memories are said to be more vulnerable to
forgetting over a long period of time (Howe, 1991). To address this specific
issue, a study by Quas, Goodman, Bidrose,
Pipe, Graw, and Ablin,
(1999) examined children’s long-term remembering and forgetting for a painful
medical procedure known as a voiding cysto-urethrogram
(VCUG) which they had experienced up to three years earlier. Children aged
three to thirteen were interviewed using either a free recall format or direct
questions. It is interesting that children who
experienced the medical procedure known as VCUG before they were aged three,
did not have a memory for the procedure when they were interviewed several
years later. Children who were age three when they underwent the VCUG performed
much better in the long-term memory test, and if experienced at age five and
older, most children remembered the experience.
The researchers
found that children remembered more information after shorter delays than
longer delays, but there weren’t more inaccuracies associated with longer
delays, just less information remembered! There were also no differences
between older and younger children with respect to the number of inaccuracies
after a long delay.
This has
important implications for court testimony by children especially preschoolers.
It suggests that as long as an event is experienced after a child is three, the
age of the child may not be as significant a factor in memory as previously
thought. With respect to time delay, these researchers’ findings were
consistent with that of others, specifically that all children remembered less
after a longer delay, but what they did remember was accurate. Younger children
did offer less information than older children, as expected.
These findings
speak to the need to expedite matters, so that more complete accounts can be
provided by children to the courts. When children forget relevant details, they
appear less credible, and their testimony on the stand appears inconsistent
with their initial statements given in investigative interviews shortly after
disclosure.
The encouraging
news is that the study also suggests that even very young children will have a
memory for an event that was significant to them after a long delay, if they
experienced that event when they were at least three years of age. Therefore,
if one is contemplating having children aged three testify in court, this
likely should only occur if the event they are talking about occurred
a very short time before. Although children often can remember events they
experienced in very early childhood (Fivush &
Hudson, 1990; Howard, Osborne, & Baker-Ward, 1997), if this memory is not
accessed quickly it fades, and then can then no longer be accessed. What we
know from childhood amnesia is that it is usually present in adults for events
prior to age three, but in children is less pronounced until they get older.
Then they too forget their early experiences.
The only
positive effect of having intervening years between an event and testifying is
that children may undergo significant intellectual development, which impacts
on their cognition and their language acquisition. As a result, their
understanding of the event they experienced may be altered by their new found
knowledge. This may be positive from a forensic point of view, in that children
will have a better appreciation of the actual significance of the incident, and
perhaps can explain what happened more clearly. Children may also have improved
language skills, allowing a better description of the event with more richness
of detail.
In any event,
the research findings on the effect of time delays on forgetting behavior in
children, emphasizes the importance of expediting court matters as much as
possible to preserve children’s complete memories for an event, but also
indicate that children can have accurate memories for things that have happened
to them even three years earlier.
4.8 Script Memory
Another
interesting area of research in memory is that of script memory. Preschoolers
have been shown to be quite sensitive to regularly occurring events, routinely
forming scripts or generalized event representations based on prior experience
(Farrar & Goodman, 1992). It is in this way that young children organize
their past. What this means however, is that they have difficulty isolating a
specific incident that occurred as part of a routine experience and may not
differentiate a special event from scripted events. They use their script
memory to fill in the gaps when they are trying to remember peripheral details
that occurred on a particular day. For example, if the babysitter fondled them
at lunchtime when they came home from school to eat lunch, they may not
remember clearly whether there were other children there that day in the
babysitter’s home eating lunch. This forgetting or confusing whom
else was there, would likely happen if other children usually attended the
babysitter’s on the same days of the week they did. They would in a general way
remember other children routinely being there.
Older children
are able to make those discriminations more easily, and may be able when
searching their memory, to isolate a particular incident and day as standing
apart from others. Younger children are particularly dependent on ‘script memory’.
4.9 Source Monitoring
According to
In a study by Gopnik and Graf (1988), three and five year old children
were shown drawers with different things inside them. Some of the children were
shown what was inside, some were told what was inside, and others were given a
clue of what was inside. The five years old children were 100% accurate in
identifying the correct source of their knowledge about what was in the
drawers, but the three-year-old children were barely above chance. Four-year-old children performed somewhere in between on this task.
Consistent with other similar laboratory studies, preschoolers were found to
have the most difficulty attributing the source of their memories about their
information.
One of the
problems inherent in this study and others like it, is
the ecological validity and generalization of the findings. Is remembering the
source of your memory for what is in a drawer in any way relevant to
remembering if someone touched you inappropriately or if you were just told
that some one touched you? The importance of the memory you are being asked to
judge as your own can differ significantly from an experimental study to a real
life situation. Even studies that have questioned children about personal
experiences have had difficulty simulating real life situations.
What are the
implications of this type of research for court testimony? Concerns have been
expressed that children are sometimes presented with post event misinformation
by parents or suggestions by interviewers, which they then adopt as their own
perceptions and memories. Although the research certainly gives examples of
children’s difficulties with source monitoring, it must be emphasized that
there are times when the results have more to do with the children not
understanding the questions put to them, than a true inability to differentiate
their personal memory from someone else’s. Despite this concern, it is very
important to always ask children if what they are reporting is indeed their own
or another’s memory about what happened, and to examine their exposure to post
event information.
4.10 Highlights in Children’s Memory
In summary, the
following general assertions can be made about children’s memories. Children do
have accurate long-term memories for events that have happened to them in the
past, and they can provide an account of these memories under the right
conditions. It appears that younger children relative to older children
remember fewer details. This might have more to do with their problems
retrieving their memories than with their initial storage. Central details of
an event, which are usually, plot relevant details are
remembered more easily by all children. These are the most likely details
remembered in free recall. As children get older and have a broader knowledge
base, a greater number of peripheral details are encoded as well. There is
certainly an effect of age on the quality of children’s memory, but even very
young children (age three) can provide forensically relevant information.
Heightened anxiety can inhibit the encoding of peripheral details of an event
in some situations by causing fragmented memory traces, but may also facilitate
the encoding of central details that remain exaggerated in memory. Personally
experienced events are more likely to be remembered by children, as they are
the most salient. There are no gender differences in memory function.
Children unfortunately
do not provide a full account of their memories in a free recall situation, but
require assistance from the interviewer to narrate their experience (
Children can
have much forensically relevant information to offer about things that they
have witnessed or experienced. Care has to be taken in the manner in which they
are questioned in order to preserve their evidence, yet encourage their
disclosures. Expediting matters in court is advisable in order to insure that
children can give a fuller account of their memory.
V. SUGGESTIBILITY OF CHILDREN’S MEMORY
Suggestive
questioning refers to an interview situation where the interviewer provides a
persistent suggestion and interpretation of an event to a child that has a
significant effect on a child’s interpretation of the event. Over the last
decade, an increasing number of studies have examined the extent to which
children’s memories are susceptible to suggestion as a result of post event
information. As previously mentioned, concern over children’s suggestibility, was raised in response to high profile multi-victim, multi-offender
cases in the early 90's, where preschool aged children made extreme and
often improbable allegations of abuse following very suggestive interviewing
(e.g., State v. Kelly Michaels, 1994; Montoya, 1993). In these cases, there
were multiple victims who were very young and who were exposed to repeated
suggestive interviews.
Most recently,
a number of excellent studies have been carried out on interviewing children
for forensic purposes (Ceci & Bruck, 1995; Poole
& Lamb, 1998). It has been stressed over and over that researchers need to
look at the system variables in order to better understand the factors that
compromise or enhance the accuracy of children’s accounts.
The extent to
which children of different ages are vulnerable to suggestion has been a major
research focus. The results from this research have been inconsistent, in large
measure as a result of the different methodologies that have been employed, and
the different aged children that have served as subjects. Ceci and Bruck (1995) have suggested that the accuracy of most
children’s testimonies can be degraded when interviewers ask misleading
questions or provide social feedback that favor a
particular answer. However Thompson, Clarke-Stewart, and Lepore
(1997), in their review of previous studies on suggestibility, have pointed out
that some of the studies have used rather “extreme” paradigms. These have
included multiple interviews during which misinformation is presented in an
authoritative and intimidating manner and in interviews in which social
pressure is used to convince the child of the adult’s knowledge of the ‘false’
events. Most often the studies have been carried out on preschool children who
are interviewed about a staged event, use a set of
suggestions that follow a common theme. The theme is often forcefully and
repeatedly presented to the children by at least two interviewers, using
psychologically manipulative techniques of persuasion.
On the other
end of the continuum are studies which have used less intrusive paradigms,
where some suggestive questions are included in the interview, but not with an
accusatory tone or insistence. Depending where on the continuum the question
paradigm lies (slight to extreme manipulation),
differences have arisen in the degree of suggestibility of the children’s
memories (
5.1 Factors Affecting Children’s Suggestibility
According to
Ceci and Bruck (1995) children’s memory traces alter
more easily and that is why they are more susceptible to the power of
suggestion. They believe that memories are actually rewritten as a result of
post event information. One reason put forward to explain why children are more
suggestible, was offered by Thompson et al. (1997). They suggested that
children lack confidence and look to adults for cues on how to interpret social
behavior in those around them. When exposed to highly suggestive incriminating
post event information by adults, children can be expected to be affected.
Young children tend to assume that adults have all the answers, and they defer
to pressure by adults to modify their perceptions. Interestingly, children are
less influenced by same aged peers (Ceci, Toglia,
& Ross, 1988). Older children are less susceptible to misleading questions
put to them by peers than by adults (Kwock & Winer, 1986). A forceful adult interviewer who keeps
suggesting misinformation to a child can lead a child to believe that they
perhaps have not remembered accurately, even though they were the ones who were
there, not the interviewer.
Another factor
which can result in an increased potential for misleading information to be
presented to children, is the reality that young children tell an interviewer
less during free recall, which makes the process of eliciting information
difficult (Ornstein et al., 1992). As mentioned earlier, this is because
children do not store their memories in an organized fashion, and need cues to
help them retrieve their memories. When left to their own devices in a free
narrative format, they offer the bare minimum. This opens up the door for more
suggestive questions by interviewers who are desperate for the details.
How many
professionals have sat with a reticent young child and waited while the child
narrated the story of their abuse, providing only a bare minimum of details?
The temptation to offer choices to children about how things happened is
strong. There is the risk however, that in these situations young children
might accept a suggestion put to them even if it is not true because they tend
to defer to adults, and because they have difficulty with their own retrieval
system. The most encouraging finding for forensic interviewers is that
generally it is more difficult to mislead children to report negative or abuse
related events than positive events, regardless of age (Eisen,
Goodman, Qin, & Davis, 1998). Children are fairly
resistant to suggestions that they have been hurt when they have not.
5.2 Reducing the Potential for Suggestibility in
Interviews
There are also
some promising avenues for interviewers to reduce the potential of
suggestibility in children.
The most recent
and most comprehensive study carried out on the accuracy of children’s
eyewitness reports was carried out by
The researchers
directed their attention to very pointed concerns, many of which have relevance
to a forensic setting. They suggested that the reason their research was
timely, was because some children involved in forensic investigations have been
exposed to misinformation from trusted adults. This information could have come
about through overheard conversations, unintentional suggestion or even
deliberate coaching or “brain washing”. In this study, the authors queried
whether such exposure to suggestion after an event had occurred could affect
the answers children later gave in their investigative interviews. In their
experimental paradigm, they tested this out.
Their findings
were both discouraging and encouraging at the same time. Firstly, they reported
that even young children in their experiments could accurately report recent
complex events if they were not influenced by misinformation or intrusive
questioning. Most impressive was the fact that for the youngest children in the
study, the majority of the information they provided about the science
demonstration in their interview was accurate. With respect to the entire
sample of children, only 1% of the children’s reports were defined as “detail”
errors in free recall when no suggestion occurred.
What they found
worrisome however was that once children were exposed to misinformation by
their parents about the science demonstration, even their free recall narratives
to interviewers contained non-experienced events. The tendency to report
non-experienced events did not defer with age, suggesting that all children
were susceptible to suggestion.
An examination
of the impact of different types of interview questions on accuracy showed that
there was a positive impact of direct questions in increasing the number of
correct reports, especially for younger children. However yes and no questions
also increased incorrect responses. What is the implication of this unintended
negative effect of yes and no questions for forensic matters? The research by
Poole and Lindsay is encouraging, because it appears that when children in
their study were asked yes and no questions about touch events that were
neither experienced nor suggested, most children of all ages responded “no”
(Poole & Lindsay, 2001).
5.3 Highlights on Children’s Suggestibility
In summary,
there has been a proliferation of studies on the suggestibility of children’s
memories. The findings are at times contradictory and confusing, but several
consistent results are appearing. Children are more suggestible than adults and
younger children are more suggestible than older children. There are interview
characteristics such as number of interviews, style of questioning employed in
interviews (open, repeated, exploratory, direct, probing, misleading, forced
choice and yes-no), emotional tone of interviewer (intimidating, judgmental,
supportive), and social pressure (identity of the interviewer) that appear to
affect the accuracy of the responses given by children about events they have
experienced. Post event information prior to the investigative interview is
another factor, which can affect children’s reports.
These findings
should lead us to be more careful in our approach to children when interviewing
them, such that we modify our questions in a way that minimizes the potential
for suggestibility. Given the above findings, it is clear that the
responsibility for suggestibility lies on the questioner and not on the child.
Unless we ask the right type of questions and allow children to recount their
own experiences, we do them a disservice. There are certainly available
guidelines on good interview techniques (e.g., Lyon, in press; Poole &
Lamb, 1998; Quas et al., 2000). Their use should be
encouraged because we know that when questioned properly, children can give
accurate accounts of events in their lives.
VI. DEVELOPING A MODEL TO EXPLAIN
TESTIMONIAL COMPETENCY
There are a
multitude of factors that interact to influence the testimonial capabilities of
children. The flowchart in Figure 1 outlines these factors and provides a
theoretical model to explain children’s performances on the witness stand.
Unfortunately many of these factors are not routinely considered in the courtroom
when an evaluation of child witness credibility takes place. There is often the
assumption that because children’s evidence is qualitatively different than
that of adults, children are not as reliable or as accurate. It can be said
however, that few accommodations are made to court procedures to facilitate the
giving of evidence by children.
A recent
finding in the developmental literature is that there are individual
differences in children with respect to their abilities and temperament.
Although there are definitely age related trends, assuming that all children of
a certain age will have the exact same abilities is dangerous. For example,
Goodman et al. (1998), in a very comprehensive review of the literature of
children’s eyewitness testimony, have found that children’s
individual temperaments and their physiological reactivity impact on their
stress level during an event and on their memory performance later on.
Age and stage
of cognitive development in children at the time of an event are a given, and
they too have been shown to effect the amount and type of experiential details
that are encoded into memory. Younger children typically remember fewer details
than older children about an event. This is likely due to two factors: they
understand less of what is going on and thereby encode less information and
their memory retrieval processes are less well developed, making it more
difficult for them to access the memories that they do have. What is
encouraging however, are the research findings, which indicate that what they
do remember can be highly accurate. The key of course is to get them to
reproduce their memories verbally.
Children’s
social maturity and their emotional stage of development have also been shown
to affect their interpretation of an event, in particular its personal meaning.
Knowledge of the world and personal life experiences are more limited in
children, making it difficult for them to analyze social situations and adult
behavior. In the case of sexual abuse for example, young children are not
always cognizant of the fact that they have been sexually abused. Their lack of
prior sexual knowledge and their social naivety results in difficulty
interpreting an abuser’s sexually motivated behaviors. Because they do not
appreciate the significance of the more subtle acts, they are easy targets for
sexual grooming. In investigative interviews when young children describe
sexual victimization experiences, they are hindered not only by their lack of
sexual knowledge but also by their general social comprehension.
It is clear
that when children are asked to remember past events, a number of factors will
either facilitate or inhibit their ability to retrieve their memories. Of great
importance is the amount of elapsed time between the event itself and
subsequent questioning. Children’s memories, like that of adults fade over
time. All available research suggests that younger children’s memories are more
affected by the passage of time than older children’s memories. The longer the
time period between the event and the questions put to them, the more difficult
it will be for children to retrieve their memories. In cases where the
discovery of past victimization has just come to light and young children are
questioned about events that have happened years earlier, the potential to
forget increases. This forgetting is particularly true for peripheral details.
This of course speaks to the need to question children as soon as possible
after an event.
The nature of
the event to be remembered is another factor that has been shown to impact on
the children’s abilities to encode and later retrieve the memory. Is the event
particularly salient? Was the event personally experienced or witnessed? Is the
event an isolated incident or has it occurred numerous times? Is it a traumatic
event that causes great emotional distress when remembered? Research on
traumatic memories has produced opposing views with respect to the relationship
between stress and memory. What appears to be true is that too much traumatic stress
can impede the encoding process by limiting what children attend to and
perceive. Too much stress can also impede the retrieval process by making it
difficult to access the memory.
Once children
have disclosed information in an investigative interview, they unfortunately
may wait a long time before they repeat their statements in a court of law.
Even in the best scenario, court cases can take months, if not years to
complete and children can find themselves talking about events in court that
occurred years earlier. Unfortunately, courts still expect children to provide
not only central but peripheral details as well, and are alarmed if their
evidence contains less detail than their initial statement.
The ability to
recollect and report on a memory involves retrieving the encoded memory trace,
and communicating the memory trace verbally. Language skills are therefore of
paramount importance at this junction. Children’s receptive abilities affect
whether they understand the questions put to them. Their expressive abilities
determine how they phrase their responses. Lacking sufficient vocabulary,
verbal comprehension and rules of conversational speech makes it difficult for
children to understand the questions and to describe what has transpired.
For these
reasons, the nature of the investigative interview is so important, more
specifically the type and complexity of the questions put to children and the
interviewer’s style. Of equal importance however, is the nature of the
questions put to children on the witness stand. Children’s testimonial
performance will be negatively affected if developmentally inappropriate
questions are put to them during their examination-in-chief or
cross-examination.
Unfortunately,
research findings in the area of children’s susceptibility to inappropriate
questioning is brought up in court only as it relates to poorly conducted
investigative interviews, or post event information offered by concerned
adults. There is a tendency to ignore the fact that the research on children’s cognitive
and communicative abilities and in particular their susceptibility to
suggestion, applies equally to what transpires in the courtroom. A child
witness’s experience on the stand is certainly as critical as the forensic
interviews and post event life circumstances that have preceded the court
hearing.
Research
strongly suggests that when children are fearful, when they feel intimidated
and are made anxious by an unsupportive environment, when they lack the
necessary knowledge to interact appropriately in an a setting, they perform
less well. Court preparation of child witnesses can address some of these
concerns, because children who are better prepared for their role as witnesses
will do better on the stand. Testimonial aids may be of assistance in alleviating
the stress of facing the accused in the courtroom. However no amount of
preparation or accommodations can make a difference if the court allows a
brutally aggressive crossexamination. Most children
are simply not emotionally able to withstand that level of social pressure.
When this happens, the difference between children’s testimonial competency and
their actual testimonial performance widens and children fail to perform.
It is very
important to make a distinction between testimonial competency and testimonial
performance. Performance refers to knowledge and abilities that are expressed
under ideal circumstances (Woolard et al., 1996).
Competency refers to capacity. Unfortunately, the courtroom is not an ideal
circumstance. When we speak of the potential of children to be witnesses, we
must not ignore the fact that there is always an interaction between the
courtroom environment and their performance.
In summary,
when it comes to testimonial competency in children, the research field on
children’s competencies is brimming with polarization, not integration (Saywitz & Camparo, 1998) and
recommendations for professionals are often contradictory. There have been some
very scathing opinions of children’s testimonial abilities.
A review of the
research on children’s abilities, in particular in the area of suggestibility
suggests, that often times the strengths children possess are ignored and the
weaknesses emphasized. If anything, the research findings reviewed in this
paper suggest that children have much to offer that is forensically relevant,
and their involvement in the criminal justice system as complainants and
potential witnesses is not misguided. It is rather the approaches employed to
obtain information from children that are at fault, based on a lack of
understanding of children’s abilities and age inappropriate expectations. The
model offered in Figure 1 is a way of demonstrating all the different factors
that impact on children’s testimonial capacities and performance.
VII. RECOMMENDATIONS FOR THE SYSTEM: HOW TO
OBTAIN GOOD EVIDENCE FROM CHILDREN
Child
developmental research generally supports the involvement of children in the
courtroom, suggesting that children have forensically relevant information for
the court. The research findings also indicate that there are many aspects of
courtroom procedure that must be targeted in order to improve the quality of
children’s evidence in court. The developmental research findings on language
acquisition and cognitive abilities, speak dramatically to the need for court
persona to modify the complexity and nature of questions put to children in the
witness box. Recent findings on the emotional vulnerability of child witnesses
demonstrate the importance of handling child witnesses in a sensitive and enlightened
way, so that children succeed in sharing their victimization experiences with
the court. Child witnesses are simply not adult witnesses.
Unfortunately
even before child complainants open their mouths to speak on the stand, the
investigative interview that was carried out months earlier may preclude a
positive outcome in their case. Increasing criticism has arisen over suggestive
interviews of children. It is therefore incumbent on mandated agencies such as
the Children’s Aid Society and the police to conduct proper investigative
interviews that do not taint children’s evidence, but maximize the probability
that the child will tell the interviewer what transpired. In order to
accomplish this, more effort must be devoted to better training on interviewing.
A number of recommendations are offered in this section.
Professional
training of those individuals conducting the forensic interviews must take
place to insure that the interviews are properly done: Adoption of widely known
acceptable interview protocols now available should be mandatory.
Research
conducted on children’s knowledge of the legal system has uncovered a
surprising naivety about the process. This is because of a lack of specific
domain knowledge in children of all ages with respect to the criminal justice
system. Children simply do not understand much of the legal terminology
employed, nor are they familiar with the formal procedures that are carried
out. They need assistance to navigate the system in general, and when on the
stand they need strategies to resist inaccurate suggestions that are posed to
them. They require warnings to only answer what they know and remember to be
accurate. The importance of court preparation for children cannot be
overstated.
It
is strongly recommended that court preparation services be offered to all child
witnesses so that they are more equal participants in the process.
Because the
testimonial performance of children is most definitely an interaction between
their language and cognitive abilities on the one hand and the nature of the
questions they are asked on the other, it is necessary for the court to exert
some control on the way in which children are questioned on the stand, either
during the inquiry, the examination-in-chief, or the cross-examination. There
appears to be great variability amongst legal professionals in the ability to
properly question children. As a result, many child witnesses are subjected to
developmentally inappropriate questions that confuse them and undermine their
performance.
It is
recommended that mandatory training sessions be developed for professionals who
interact with child witnesses in court, on the use of age appropriate
vocabulary and appropriate questions.
A trial is of
course adversarial, and as such the goal of the defense lawyer will be to
discredit the child witness’s testimony on the stand. In this climate, there is
always the danger that questions put to children are purposefully crafted to
either exert pressure on them so that they tend to agree with erroneous facts,
or confuse them by talking above their level of comprehension. The research
clearly points to the discrepancy that exists between an adult’s and a child’s
language skills, and the fact that there is the
likelihood of misrepresentation of children’s evidence when they are confused
by the nature of the questions put to them. The court must voice concern when
inappropriate and misleading questions are asked of children during a cross-
examination. There is a need for clear guidelines that stipulate an acceptable
approach to obtaining information from children during court proceedings. These
guidelines should include a range of appropriate examples of questions, which
can be used to illicit details about an event from children of different age
ranges, without suggesting misinformation or exposing a bias.
A
manual should be created which outlines the nature and type of questions that
can be asked of child witnesses of varying ages on the stand: Compliance with
this guideline should be encouraged in court.
The research to
date strongly supports the use of provisions to accommodate child witnesses on
the stand. In particular, closed circuit television and screen provisions,
availability of support persons, and admission of videotaped statements in lieu
of examination-in-chief, are all important because they can reduce the anxiety
of child witnesses.
It
is recommended that courts routinely accommodate children through legislative
provisions to reduce their stress level and improve their testimonial
competency.
Much research
has taken place here in
It
is recommended that the courts dispense with the inquiry into the oath for
children under fourteen and in its place simply have children indicate that
they will tell the truth on the stand.
The longer
matters take to resolve in court, the more difficult it is for child witnesses
to remember all the details surrounding what has happened to them. Research has
shown that anticipatory anxiety in the months leading up to a court hearing can
be unbearable for many child witnesses, as well as impeding their performance.
For the sake of the quality of the evidence offered to the court, as well as
the emotional well being of children, cases should not be permitted to drag on
for months and years.
It is
recommended that everything be done to expedite matters involving child
victims. Dispensing with preliminary hearings and moving right to trial may be
one way of shortening the time between the charge and outcome.
VIII. FUTURE DIRECTIONS
It would appear
from the areas covered in this paper, that more research is required on ways to
enhance child witness testimonial performance in the courtroom. Simply
recognizing that children are vulnerable participants in the criminal justice
system when they testify about childhood victimization is not enough. It is
only a first step. One avenue of research that appears timely is the
development of a guideline for questioning child witnesses on the stand, one
which takes into consideration research findings on children’s developmental
abilities, their susceptibility to suggestion and their vulnerability to
intimidation. This guideline could be evaluated in future as part of a large
research study, comparing the testimonial performances of child witnesses who
are questioned by counsel using the new guideline, versus those who are
questioned by counsel who employ the traditional approach of cross-examination.
The impact on court outcome could be examined as well, and further
recommendations to improve testimonial competency would be research based.
Another area of
research that would be valuable is an assessment of the implementation of
existing legislative provisions across the country. To date there are only a
few Canadian studies that have been carried out on local population samples. As
well, the potential benefit of expanding legislative provisions should be
evaluated in light of this practice in other countries. The effectiveness of
current professional training for those working in the criminal justice system
could also be an area of further evaluation, with a view to examining whether
the intended spirit of the law regarding child witnesses is well understood and
practiced.
In summary,
much has been done to study the developmental capabilities of child witnesses
of differing ages, and the impact on their testimonial competency. Not enough
research however, has been carried out on the interaction between judges and
lawyers and child witnesses in court and the resultant testimonial performances
of children. This is an area of research that holds great promise for the
future.
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Endnotes
1 The case of R v. Peter Ellis in
2 (e.g. The Pigot Committee
Recommendations, 1988; The Report of the Advisory Group on Video Evidence, Home
Office, 1989; and the Memorandum of Good Practice by the Home Office in 1992 in
England: the Melamed Committee report on sexual
offences against minors in Israel (1987): the Scottish Law Reform Commission
1990, the Oath Amendment Act (1990) in Australia, the Irish Law Reform
Commission, 1990; the New Zealand Evidence Amendment Act, 1989).
3 The survey was conducted by Nick Bala
and his colleagues at
