The Credibility of Children as Witnesses
A 15-year-old boy testifies that a world-renowned pop singer invited him to his mansion for sleepover parties, got him drunk, and then molested him on several occasions two years earlier while he was undergoing treatment for cancer. The boy’s younger brother takes the stand and claims he saw the singer fondle his brother in two additional incidents. But the defense argues that the brothers and their mother are “con artists, actors, and liars” who had taken advantage of the bout with cancer to wheedle money
from celebrities. After a three-month trial, the jury finds the pop star not guilty of molestation and not even guilty of providing alcohol to minors. (Broder and Madigan, 2005)
The testimony of children has been viewed with skepticism ever since the Salem witch trials of 1692, when a number of girls made outrageous claims that they publicly recanted several years later after the “witches” were executed. Histori- cally, when children were drawn into the adult court system as prosecution witnesses, the pro- ceedings were inherently biased against their par- ticipation. Their testimony was automatically suspect, and their legitimate needs were routinely overlooked. Now it is widely recognized that young complainants have unique problems that require special handling.
Should youngsters have an automatic credibil- ity problem simply by virtue of their age? Would children lie about important matters? Is there a ker- nel of truth to most revelations, whether spontane- ously volunteered or coaxed out of children, or do hysterical parents and overzealous investigators set off witch hunts and fall for hoaxes?
Social scientists are conducting experiments to determine the accuracy of the memories children acquire, retain, and retrieve. Researchers estimate that about 500 studies have examined the issue of children’s “suggestibility” ever since a bitter contro- versy erupted during the late 1980s (Goldberg, 1998). An estimated 20,000 children were called upon each year to testify in legal proceedings stem- ming from allegations of sexual abuse, and as many as 80,000 more were questioned by investigators annually about possible molestations at the start of the 1990s (Goleman, 1993). As a result, whether children tend to tell the truth or are prone to con- coct stories has become an emotional issue with significant legal repercussions.
Because of their immaturity, very young chil- dren suffer from cognitive limitations that can undermine their credibility. They think in very concrete terms and have trouble understanding generalizations. They do not organize their thoughts logically or recount stories sequentially.
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They may be unable to properly locate events in space, distance, and time, making it difficult for them to be sure about where and when something happened. They tend to assume that adults know the whole story and think that their partial answers are satisfactory. They also have short attention spans. Finally, they might be uncom- fortable confiding in strangers who intimidate them (Whitcomb, 1992).
Two distinct points of view characterize the debate over the issue of credibility (see Ceci and Bruck, 1993; and Lewin, 2002). At one extreme is the pro-prosecution/pro-victim “believe the children” position that says that youngsters are gen- erally competent witnesses about events that hap- pened to them weeks or months earlier, are resistant to suggestions, and do not make up charges about abuse, especially sexual molestations and assaults that didn’t happen. In fact, children might even retract accusations that ring true if the social reac- tion to their disclosure threatens to cause chaos. For example, a girl who reveals an incestuous relation- ship might recant her original testimony if she fears that she will be rejected and branded as a liar by her father, who faces disgrace and imprisonment; that her mother will become hysterical and enraged; that her siblings will be furious about the disruption of their family life; and that caseworkers and detec- tives will become more intrusive. The girl could feel she is being blamed for provoking the crisis and might back down in a vain attempt to restore some semblance of normality (Whitcomb, 1992).
At the other extreme is the pro-defendant posi- tion that questions the trustworthiness of the testi- mony of children who serve as witnesses for the prosecution. Children’s versions of events should be viewed with skepticism because they are extremely vulnerable to coaching and manipulation by adults. The testimony of very young witnesses loses credibility once they have been subjected to intensive questioning by caseworkers, detectives, prosecutors, and parents who strongly believe that abuse has taken place. If authority figures attempt to validate their preconceived notion of what may have happened, the youngsters might keep repeat- ing the “right answers” to the leading questions
adults ask. Then the youngsters might eventually be swayed and regurgitate the adults’ suspicions back to them, as if these events actually occurred. When a high-pressure interviewing technique is imposed upon a hyper-suggestible youngster, the result can be the creation of a false memory. A baseless charge against an innocent adult ultimately could lead to a wrongful conviction.
Whether the version of events offered by a number of preschoolers was believable beyond a reasonable doubt became the subject of many heated discussions in this highly publicized case:
Nineteen children between the ages of three and five testify at the trial of their nursery school teacher. They tell the jury that over a period of seven months, during naptime, this 22-year-old woman (who had received an excellent evaluation and a promotion) inserted knives, forks, spoons, and Lego blocks into them. Some testify that they played games naked and she made them drink urine, eat feces, and defecate on her. Although no staff members saw, heard, smelled, or suspected anything suspicious, and no parent ever detected any evidence of strange behavior, the jury believes the children. Three years after the alleged incidents, the 10-month trial ends, and the teacher is convicted on 115 counts of sexual abuse and sen- tenced to 47 years in prison. But five years later, the conviction is overturned on appeal when a three-judge panel rules that prosecution interviewers pressured the children with bribes and threats to confirm the charges. Also, the judge was faulted for violating his impar- tiality when he coaxed the young witnesses to testify against the teacher over closed-circuit TV in his chambers while sitting on his lap. The prosecution decides not to retry the case, in part because some parents conclude that putting their now teenage chil- dren back on the witness stand would be too stressful. (Manshel, 1990; and Nieves, 1994)
Contradictory findings about the reliability of children’s claims have filled forensic literature since the mid-1970s. Some studies conclude that young- sters can be swayed only about minor details, but others indicate that repeated interrogations can coerce children to make up tales that they believe are memories.
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Professionals who look into and report instances of suspected maltreatment must be scrupulous about carrying out two legal obligations simultaneously: promoting the best interests of their young clients while safeguarding the legal rights of the adults they investigate (Ceci and Bruck, 1993; and Hewitt, 1998).
Ever since the landmark decision of the Supreme Court in 1895 (Wheeler v. United States), children have had to pass pretrial competency tests before testifying (unless they were over the age of 14). Nearly 100 years later, the Victims of Child Abuse Act of 1990 reversed that presumption; now children are considered competent witnesses unless there is evidence to the contrary. However, in most state courtrooms across the country, before a trial begins, the judge evaluates whether a young- ster understands the difference between truth and falsehood, appreciates the seriousness of the oath to swear to tell the truth, and can remember details of past events. Child welfare advocates welcome these reforms because they believe most children in abuse cases don’t lie (Whitcomb, 1992). But civil libertar- ians are concerned that the presumption of compe- tency might undermine a defendant’s right to a fair trial (Austern, 1987; and Dershowitz, 1988).