Child Witnesses: Implications of Contemporary Suggestibility Research in a Changing Legal Landscape

By Keenan, Michael R. | Developments in Mental Health Law, July 2007 | Go to article overview

Child Witnesses: Implications of Contemporary Suggestibility Research in a Changing Legal Landscape


Keenan, Michael R., Developments in Mental Health Law


[W]hen are we going to give up ... listening to children in courts of law?--J. Varendonck (1911) (1)

I. Introduction

The reliability of the testimony that child witnesses provide at trial has been debated by legal scholars and developmental psychologists alike since the turn of the twentieth century. (2) The question posed by Belgian psychologist J. Varendonck, an outspoken critic of child witnesses, embodies the archetypal early twentieth century understanding of children "as having difficulty distinguishing reality from fantasy, as being susceptible to coaching by powerful authority figures, and ... as potentially being less reliable [witnesses] than adults." (3) Indeed, children were once viewed as "the most dangerous of all witnesses." (4)

In recent years, however, a surge in the prosecution of child sexual abuse cases (5) has created a critical need for psychological research and legal analysis regarding the reliability and suggestibility of child witnesses. While children are sometimes described as "highly resistant to suggestion, as unlikely to lie, and as reliable as adult witnesses about acts perpetrated on their own bodies," (6) this depiction is widely challenged by legal scholars and clinical researchers who contend that a child's memory can be irreparably tainted if particularly suggestive techniques are utilized by an interviewer. When such techniques are employed, it is argued, the child witness should be regarded as unreliable and his or her testimony excluded. (7)

This is not to say that the current prevailing attitude questioning the reliability of child witnesses mirrors that of the early twentieth century. On the contrary, there exists today nearly unanimous support for the proposition that "when children allege that they have been subjected to sexual abuse[,] they are frequently, even usually, accurate." (8)

Nevertheless, basing a criminal conviction predominantly on a child's allegations may be suspect. Leading questions and otherwise suggestive techniques may be the primary means by which an interviewer can extract information from a young child under some circumstances. (9) The interviewer should proceed cautiously and avoid undue suggestion that may render the child's recollections unreliable for the purposes of subsequent legal proceedings. The criminal justice system, in turn, is faced with an enormous challenge. Specifically, it must strike the proper balance between affording children the opportunity to have their testimony heard in court and obtaining needed convictions, and protecting defendants from unsubstantiated, and sometimes bizarre and incredible, accusations of child abuse that can have devastating effects on the lives of the defendants.

In addressing these issues, Part I of this paper will analyze some innovative research that is currently being conducted with regard to child witness suggestibility. This analysis will consider one study that examines suggestibility as a trait-like characteristic that can affect memory reliability of an event. In addition, a second study will be examined that analyzes the extent to which the actions of adult interviewers affect the consequential behavior of children.

In Part II, the current legal framework pertaining to children's participation as witnesses in the criminal justice system will be considered. Particular emphasis will be placed on children's competence to testify, the requirement in certain jurisdictions that pretrial "taint hearings" be held to assess the reliability of children's testimony when unduly suggestive interviewing techniques are alleged, and the effects that the hearsay rule and the defendant's Sixth Amendment right of confrontation have on the admissibility of children's out-of-court statements.

By applying the findings of the aforementioned studies to the current legal framework, it will be demonstrated that a mechanism employed by New Jersey that has the effect of precluding the introduction of child witness testimony at trial by readily requiring pretrial taint hearings that focus predominantly on the interview technique used is both superfluous and misguided.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Child Witnesses: Implications of Contemporary Suggestibility Research in a Changing Legal Landscape
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.