The Baby in Court
Lenore C. Terr, M.D.
Almost one hundred years ago, the United States Supreme Court offered an opinion regarding the appropriateness of bringing very young children to court as witnesses. In Wheeler v. United States (1897) the Court stated, "no one would think of calling as a witness an infant only two or three years old." This opinion has guided American rulings on the appearances of infants in courts of law since the turn of the century. Although the Court suggested considerable flexibility in qualifying older children as witnesses, the Supreme Court of 1897 could not predict then that within fifty years, Anna Freud, Piaget, Spitz, and others would develop an entirely new discipline dedicated to the understanding and treatment of babies—infant psychiatry.
Over the past ten years I have studied how children function as witnesses in trials, particularly following psychic trauma (Terr, 1980a, 1980b). Recently, I have been observing the effects of traumatic experiences on nonverbal or preverbal children. From these observations I am constructing an explanation (mostly theoretical) of how babies may serve as witnesses. Several cases are offered as examples to describe how these cases could have been presented in court. It is my contention that infant psychiatry is now able to bring out reliable words from the mouths of infants even younger than "two or three years old" and that infant specialists may present babies today as acceptable and reliable witnesses before magistrates, judges, administrators, and juries.
Before I discuss how babies can bear witness, I wish briefly to consider what they witness and whether they should be brought forward at all. Infants, more than older youngsters, experience abuse, neglect, abandonment, relinquishment, adoption, and argument regarding their parentage. An instant of adult ire or parental despair may leave permanent physical or emotional scars upon the baby. Furthermore, during those few moments of conception, an irreversible genetic destiny is set for the infant. The baby thus has far more at stake in legal processes involving custody and protection than does any other individual who appears in such hearings—and as the party most directly affected, the infant must be granted a voice in the decision-making process.
Should courts intervene in matters involving infants? Selma Fraiberg, to whom this current volume is dedicated, took a vigorously interventionist approach in her work with blind children (1968). The efficacy of these vigorous interventions was eventually demonstrated in her studies of abused and neglected infants (1975) and in her group's ongoing ability to change dramatically the outlook for many of these infants-at-risk (Fraiberg, 1980). Courts have the potential, when called upon, to ensure that the type of active and humane interventions on behalf of infants that Fraiberg advocated will take place.
When court interventions are required to force reluctant parents into treatment or to protect babies already harmed, infant mental