Every year some hundreds of thousands of children may be involved in the legal system. Most encounters have been with sexual assault cases. Although some children may be capable of giving an accurate testimony most are vulnerable to having their testimony and their memories distorted to the point where the truth may never be known. Children have problems distinguishing reality from fantasy, making them susceptible to the coaching of an authority figure.
Award winning development psychologist Stephen J. Ceci, Ph.D., of Cornell University has conducted a laboratory research, studying some factors that can affect a child’s testimony. These conclude:
Interviewer bias—When the interviewer (parent, therapist, investigator) believes he or she knows what happened and attempts to get the child to confirm it, ignoring anything the child says that does not conform with the interviewer’s bias and encouraging anything that does.
Repeated Questions—Children, especially younger children are more likely to change their answers when asked the same yes or no question repeated during a single interview. Answers from children to yes or no questions repeated over several interviews are likely to become more firm and confident, regardless of whether they are correct.
Stereotype induction—Children’s reports can be influenced by stereotypes suggested by the interviewer (or by others before the interview takes place). An interviewer telling a child that the [suspect] is a bad man who does bad things is an example of stereotype induction. Similarly, children can come to assume and report bad things about someone they had previously heard described in negative terms.
Encouragement to imagine and visualize—When asked to "think real hard" about or to visualize events they don’t remember, children can come to "remember" and then present a detailed, coherent narrative of events that never occurred.
Peer Pressure—Children’s reports can be influenced by the application of peer pressure (Johnny told me all about it, and he said you were there too). Studies also show that children can incorporate into their own memories experience that their peers told them about, but which they did not witness themselves.
Authority figures—Children tend to regard adults generally as all knowing and trustworthy, which can influence how they respond to questioning by adults. But they may also be sensitive to status and power differentials among adults—an important issue when police officers, judges, and medical personnel interview children.
Much of these influences were performed in a laboratory setting which is not exact to real life. These are all factors why children’s testimonies are found uncredible. (Ceci)
Suggestibility is of major concern for jurors, interviewers, and prosecutors in regards to child witnesses. Children are very susceptible to confusions and distortions as a result of the influences just listed. Because of leading questions and other influences, the suggestibility of a child is very serious and is pretty much unavoidable.
On March 2, 1984, in Hawaii, a 3yr old girl named Katie said to her mother that she had a burn on her leg. The girl’s mother thought it might have been a mosquito bite so she didn’t look at the little girl’s leg. That night the little girl had nightmares and was screaming continuously. The next day she told her mother that the burns were from a gun like device. The little girl said, she was abducted from school and was taken to a house, where a man took photos of her while she was naked. The little girl also said, another girl from school was there in the house also.
Following her story two detectives, a social worker, and a physician interviewed the little girl. The officers described the little girl as "drifting" and said, she was not sexually abused. Later when interviewed by the social worker, the little girl said, she was sexually abused. A doctor then looked at her and it was said, there was no penetration found on the little girl.
The day after the little girl’s parents took her for a drive to try and see if she could identify the house she was in. A house wasn’t found, but the little girl mentioned that the family realtor had been the abductor. But at the time of the incident the realtor was in his office his secretaries stated. Later the little girl’s parents took Katie to the other girl’s house who was supposedly abducted also. The other little girl Jane said, she was abducted and taken to McDonalds and/or Sea Life Park. After Jane heard her friend’s story she started to agree that she was abducted and sexually abused.
Later that month the girls also reported that a third child was involved, a 5yr old boy. But the little boy claimed to never have left the school.
Months later her parents, physicians, attorneys, and prosecutors had interviewed the girls more than 30 times.
In January 1986 the defense moved to disqualify the two little girls as witnesses. The defense stated, that the girls "learned" that the incident had occurred through the coercive questioning of many adults. A deep concern on the part of the judge in Hawaii about suggestibility and memory distortion was the basis for the decision to disqualify the children as witness, because the methods by which they had been questioned led to serious doubts about their ability to report their own recollection of events.
In this Hawaii case the defense attorney implied that these preschoolers were so suggestible as to be unable to separate fantasy from reality that none of the "remembered" events ever occurred. The defense in this case is not saying that the entire event was fabricated but it is impossible to get an accurate reporting of events from the two girls. As in this case this is why many find children as not credible enough to be witnesses in the court of law.
It is not true that children do not tell any bit of truth, but children who have been questioned and coached over and over again give inaccurate testimony.
A factor that can cause children to give inaccurate testimony is the child’s ability to tell reality from fantasy. This is their ability to tell actual events from ones just imagined. Research has found that children 8yrs of age are pretty much able to distinguish what they actually experienced from what was imagined. Ages younger than eight you begin to see a deficit in this ability. Younger children have difficulty distinguishing what they actually experienced from what was imagined. This proves that age results in a deficit of memory ability.
In most judicial systems jurors tend to disregard the eyewitness testimony when provided by a child as opposed to an adult. It is known that in the legal community that children’s memories are prone to error, resulting in inaccurate testimony. In many jurisdictions if a child is to testify in court the child must first pass a competency examination. Do triers-of -fact, those likely to be called as actual jurors in a case share the legal communities viewpoint of the child eyewitness. In a survey conducted by David F. Ross et al fifty college students were asked whether they believed a child eyewitness would be more or less likely to render accurate testimony than that of an adult. They asked the college age respondents to consider hypothetical six, eight, twenty one, and seventy four year old eye witnesses, and asked them to rate all eyewitnesses on how accurate their testimony was likely to be. Finally each respondent reported how much weight they would give to the testimony of each eyewitness. Respondents answered these questions on seven point scales. (Ross et al)
From the results it was seen the subjects held a rather negative stereotype of the child eyewitness. The subjects reported that they would give less weight to a testimony offered by a child than to that offered by an adult. Elderly witnesses were viewed just as negative as the child. This survey shows that age does have an effect on juror’s perceptions of credibility. (Ross et al)
Age of Hypothetical Witnesses
Witness Characteristics 6 8 21 74
Witness accuracy 3.28 4.22 5.92 4.74
Suggestibility 2.14 3.06 5.30 4.20
Honesty 4.94 4.94 5.14 5.72
Weight given to testimony 3.06 4.10 5.96 4.98
Total score 13.7216.32 22.32 14.64
Fig. 1 (Ross et al)
Defense attorneys and prosecuting attorneys who hear the testimony of a child eyewitness (8yrs + younger) both see children as having poorer memories and being more suggestible than adults. Most attorneys feel that jurors also feel the same way when a child is an eyewitness. It is also found that regardless of the apparent unstable memory and ability to convince a jury, a jury is less often to convict when a case rests on a child eyewitness.
An attorney is very good at influencing the outcome of cases involving child eyewitnesses by the way in which the attorney questions a child in court. A high level of stress for example, is a likely consequence for the child subject to questions designed to confuse. "Stress, in turn reduces the short term memory capacity necessary to comprehend an attorneys sentences and promotes memory retrieval failures that may lead to suggestibility. It is also known that children connect events less fully than adults in their verbal reports. The alert attorney can point this habit to the jury and attribute it to poor recall, and can also confront the child with queries of why he or she is so inconsistent." (Leippe et al.) As a result of this type of questioning from attorneys the jury may get fewer accurate facts which may hinder a fair assessment of the child’s statement.
The Elian Gonzolez case, is a case that brings many questions to people all over the world. Elian is a 6-year-old from Marxist, Cuba who is here in the United States. This startles everyone in the legal community because experts feel a six year old should not be able to choose where he wants to live. It is very unusual that children, those who are under the age of 12 are asked to decide where they will live. Immigration officials in this case feel like most, that Elian is too immature to make a decision such as this one. "It would be a nearly meaningless question to ask a 6-year-old whether he prefers one economic system to another economic system, one culture to another culture," said Lee E. Teitelbaum, an expert on juvenile law who is the Dean of Cornell University Law School. Some experts say that the decision to ask a 6-year-old to seek asylum violated principles that are widely accepted. "American courts think certain things have to be decided by adults, and the a!
dults who decide them ought to be the parents," said Michael S. Wald, a specialist in children’s legal issues at Stanford University Law School. "But when children are called upon to testify as witnesses, judges apply a different test. They evaluate whether a potential child witness understands the nature of the oath to tell the truth by asking for example, whether the child knows what it means to lie." (Glaberson)
Professor Guggenheim of New York University said that under that test very few 6-7-year-olds qualify to present sworn testimony. The cases of young children, courts have turned away from asking children to make such decisions. This is mainly because judges say children can be manipulated and as a result may suffer psychologically later in life. As in this case and other cases that involve children as eyewitnesses, if we are to give any weight to a child’s testimony we need to learn how to improve a child’s testimony.
Courts try to protect children against sexual abuse and keep innocent adults from false accusations. It is very hard to balance the two in sexual abuse cases. Without other witnesses and lack of evidence, is why there is a great emphasis on child’s testimony of what happened and who did it. Obviously with this type of emphasis on children testifying in court the way they were interviewed is of concern. The biggest problem in dealing with a child eyewitness is their limited cognitive and language abilities, which is a great challenge for the interviewer.
When a child is asked an open-ended question like ‘what happened’ a child generally says nothing. Being frightened causes this reaction even if something did occur.
"What, then, can adults do to obtain accurate and complete information from children? Imagine that authorities suspect abuse and you are charged with interviewing the child in question. Would you simply ask nonspecific, vague questions such as, "Did anyone ever do something to you that you didn’t like?" If the child did not disclose abuse, would you leave it at that? What if the child exhibited physical signs of abuse or was acting out sexually and experiencing nightmares? Would you go further to ask more specific questions? Would you ask the child to act out the event with dolls, perhaps anatomically detailed dolls? How would you balance the fact that the child might need to be repeatedly questioned with the concern that a non abused child might be led to falsely believe that he or she is an abuse victim? What if it was your own child? Because most specific questions ("Did Uncle Bill hurt you?" "Did someone touch you down there?") can be construed as leading, almos!
t anything you might do to try to find out from a reluctant child what happened could be (often is) attacked as overly suggestive." (Children Today)
People who interview a child need some kind of training in interviewing children. The type of interviewing is forensic interviewing. The purpose of this interviewing method is to obtain the most accurate and complete report from a child. To know how to do this takes incredible skill, such as building rapport with children. The interviewer needs to know what questions are of advantage or disadvantage. "Using nothing but specific open-ended questions may be appropriate for a certain child in a certain situation but not for another child of a different age and background, or for a child who is afraid to tell versus one who is prone to fantasy, or for a child questioned about events in the distant past." (Children Today)
There may be instances when specific questions are needed, but you really need to pay attention to the situation. Leading questions should be avoided if at all possible: Even children who can give an accurate report, because the interviewer’s perceived credibility is likely to suffer. There is a wide range of suggestion in an interview and some interviewers and parents go too far. Drilling a child with repeated suggestive questioning is a lot different than asking the child a few specific questions. The type of language an interviewer uses can also affect how accurate a child will report. "When asked confusing, age inappropriate questions, as often happens when lawyers us "legalese" in cross examination of a child witness, the number of errors increase." (Children Today) When a child is also asked intimidating questions, this could also cause an increase in errors. If the person accused is present during an interview can reduce the willingness to tell what happened.
Many researchers are trying to come up with techniques to help children give accurate testimonies of their experiences. Such techniques as forensic interviews which have a proposed cognitive interview technique which gets greater detail out of a child without an increase in Stern, Clara, and William Stern. Recollection, Testimony, and Lying in Early Childhood. inaccuracies. There have been programs developed to help children be more complete in their reports, and to ask for clarification on questions not understood.
All involved in interviewing a child is confronted with the challenge of learning when and how to listen to a child. Through research we are able to find important principles. These findings will help to give more weight to the testimony of a child and help the course of justice.
Ceci, S.J., D.F.Ross, M.P. Toglia. Perspectives On Childrens Testimony. New York:
Springer-Verlag, 1989. The book presents current empirical research on the
factors that influence adult’s perceptions of the child witness. This volume
provides researchers in both the psychological and criminal justice communities
with knowledge about adult beliefs regarding child witnesses, how these beliefs
may influence jury verdicts, and the relationship of these perceptions to the
credibility and accuracy of children’s testimony.
Ceci, S.J., D.F. Ross, and M.P. Toglia. Children’s Eyewitness Memory. New York:
Springer-Verlag, 1987. The book details current empirical research on factors
affect children’s recollections of everyday events. This volume provides
interested professionals with an understanding of children’s memory as well as
those conditions which diminish its accuracy. Children’s Eyewitness Memory
also includes an in depth treatment of such issues as the suggestibility of
children’s memory, the role of stress in recall, and children’s competency to
distinguish fact from imagination.
Ceci, Stephen. "Children as Witnesses." Human Ecology Forum 26 (1998): p8(4).
Ceci, Stephen. "Child witness in court: a growing dilemma." Children Today 22 (1993):
Bruck, Maggie. Press Release. Mar. 1996.