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)
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. …