The Interaction Between Children's Developmental Capabilities and the Courtroom Environment: The Impact on Testimonial Competency
The present paper highlights current social science research in a number of areas pertaining to the ability of child witnesses to interface with the criminal justice system. The timeliness of such research cannot be overstated. Over the last twenty years, there has been a steady increase in the number of children who testify each year in Canada. This has been due to a number of factors; better identification of child victims of abuse, more willingness to listen to disclosures and act in a protective manner, and legislative amendments which have included child-specific offences and provisions designed to modify the way in which children's evidence is received in court.
The increase in the number of children testifying has not however been all positive, with many child advocates complaining that child witnesses are further traumatized by the court system and the rigid rules that prevail, and many defence lawyers arguing that young child witnesses are not capable of providing reliable evidence in a court of law.
Numerous studies have documented the negative emotional impact on children of testifying in court (Goodman et al., 1993; Myers, 1996; Peters, 1991; Sas, Hurley, Hatch, Malla, & Dick, 1993; Whitcomb, Goodman, Runyan, & Hoak, 1994). Many of the stressors facing child witnesses have been identified in the clinical literature. Challenging and intimidating crossexamination of children is permitted and fairly routine. The language employed in the courtroom is sophisticated and formalized. Very few children ever testify behind a screen or using a closed circuit television provision, which means that they must face the accused in court when describing their victimization. Children often have to testify twice, once at a preliminary hearing and once at a trial. As well, there are often long delays between hearings which translate into months if not years during which children's lives are in limbo. Despite the recent proliferation of court preparation programs for child witnesses, not all children even receive court preparation prior to testifying.
In Canada, there has been criticism of not only the Criminal Code legislation pertaining to child witnesses, but of the lack of implementation of current available provisions in that legislation, designed to protect children on the stand (Bala, Lindsay, & McNamara, 2001; Nova Scotia Department of Justice Victims' Services Division, 2000; Park & Renner, 1998; South- Western Ontario Child Witness Network, 1999). In 1999, the Department of Justice Canada, Family, Children and Youth section, produced a consultation paper on child victims and the criminal justice system. In it, a number of recommendations were put forward for discussion, all having to do with improving protection for children from abuse and facilitating children's testimony.
Social research in the last ten to fifteen years has offered professionals working in the criminal justice system much information on children's abilities to be witnesses. The findings overwhelmingly support further amendments to the legislation, as well as significant procedural changes in the way in which child witnesses are questioned on the stand.
Cognitive Developmental Research Findings on Children
Developmental research in the area of children's cognition has shed light on the way in which children think and organize the world around them. The findings are encouraging for the participation of children as witnesses in court, but at the same time, researchers warn that there are a number of cognitive developmental skills which are demanded of child witnesses that are not readily available until children are at least ten years of age or older.
Making inferences about others' intentions, taking another person's point of view and comprehending hypothetical questions are examples of three skills that involve abstract reasoning abilities that are not present in young child witnesses (Fivush & Hudson, 1990; Selman, Schorin, Stone, & Phelps, 1983). Another area of difficulty for child witnesses that has been studied is comprehension monitoring. Flavell, Speer, Green, and August (1981) have pointed out that children often fail to realize that they have insufficient information to correctly interpret the world around them. This has important implications for children who are testifying, because they must actively monitor their own comprehension throughout the court proceedings, in order to give accurate evidence.
It is no surprise that children have been found to lack knowledge about the way in which the criminal justice system works and are naive in their understanding of their role as witnesses. Few children have had exposure to court, or are knowledgeable about how matters are dealt with in the criminal justice system. This places them at an unfair advantage in the courtroom, where everyone else is familiar with the procedural rules and the terminology. As well, children generally are reported to view adults as omniscient (Saywitz & Nathanson, 1993). This causes them to offer little or no details in their accounts, because they believe that the adults already know what has happened to them. In the courtroom, this can present major credibility problems and children need to be reminded that the judge and the lawyers do not know what has happened to them.
In court children are usually asked to place an event in time, to estimate measurements, and demonstrate other abstract numeracy skills. The developmental literature on children's abilities to tell time, estimate weight, height and distance etc., suggests that children develop these skills very slowly over elementary school (Saywitz & Camparo, 1998). Given that many children under twelve testify in court, researchers suggest that caution be exercised when questioning children on the stand about abstract concepts that may not be developmentally appropriate.
With respect to the importance of the truth telling function in court, current research on children's appreciation of the significance of an oath, the meaning of truth, lies and promises, is very encouraging for children's participation in the criminal justice system. Most notably, research by Astington (1988) and Maas and Abbedutto (1998) on children's understanding of promising to tell the truth, suggests that when children promise to tell the truth, they include the act of telling the truth as well. Even children less than seven years old have been found by Haugaard, Repucci, Laird, and Nauful (1991) to be capable of discerning a lie from the truth. In their research, they found that children's definitions of a lie would not disqualify them as competent witnesses in court. These findings have particular relevance for the debate over the practice of conducting inquiries into the oath for children less than fourteen years of age. It suggests that simply having children indicate that they will tell the truth is a better option than the current inquiry into the oath.
Language Development in Children
The importance of language acquisition for a witness is obvious. In children, language skills develop with age and experience, with receptive skills usually developing more quickly than expressive skills. The act of testifying in court involves both receptive and expressive language skills, as a verbal account of children's memory is expected on the stand, in response to questions by lawyers. Preschool aged children generally understand words with only one or two syllables, but generally they can respond in short full sentences. There is little appreciation for grammatical rules of language at this age and subtle difficulty with tenses. This presents a challenge for lawyers who are questioning such young children.
Early primary school aged children have developed sufficient language skills to participate in everyday language, but will have difficulty with the language employed in the courtroom. They too have more developed receptive language skills than expressive skills, and will not always be able to describe in words what has happened to them, even though they have a memory for the event. Late primary school aged children are more proficient, but still lack descriptive adjectives, making an elaboration of their accounts difficult. The reality is that difficult words, complex syntax and compound sentences still present a challenge for most children on the stand (Greenstock & Pipe, 1996; Saywitz & Nathanson, 1993; Walker, 1993).
With respect to children's knowledge of legal terminology, the language of the courtroom is foreign to many children. "Lawyerese", as it has become known is not familiar to most children or the general public for that matter. Children however, are expected to demonstrate communicative competency, which involves understanding the language of the court. Studies on children's understanding of legal terminology indicate that there are age related differences in comprehension, and many common legal terms are not familiar to children (Flin, Stevenson, & Davies, 1989; Maunsell, 2000; Saywitz, Jaenicke, & Camparo, 1990; Walker, 1993; 1994). In fact, in the majority of studies carried out to date, most legal terms are not accurately defined until children are at least ten years of age. These findings speak to the need to provide court preparation for children, so that they have a basic understanding of the terminology that is employed in the courtroom.
Memory Development in Children
Of all the areas in child development, research in children's memories has provided the most relevant findings for child witness participation in the court. The findings are very encouraging and overall suggest that children do have accurate long-term memories for events that have happened to them in the past. As well, they can provide accounts of these memories under the right conditions. This is important because verbal memory is central to effective testimony, as children cannot provide accurate reports of events that cannot be remembered (Ornstein, Larus, & Clubb, 1991).
Ceci and Bruck (1993) in their research on child witness memory, suggest that children as young as three can provide forensically relevant information. There is an age factor however, in that younger children remember less than older children, and provide fewer details in their free narratives. This difference is attributed to a lack of organization of memory traces in younger children, which makes retrieval more difficult. All children appear to remember central plot related details more readily and less peripheral detail.
In order to produce a complete account of what has happened, children must have developed the ability to produce a narrative account of what has occurred in the past. Research suggests that by the age of five or six, most children have started to develop this skill (Hudson & Shapiro, 1991) but many still require cues to elicit their memories. This can present difficulties in forensic settings where issues of suggestibility are often raised (Ornstein, Gordon, & Larus, 1992; Poole & Lindsay, 1995, 2001).
A number of factors have been found to affect memory. Heightened anxiety can impact on children's memories for events as increased stress can interfere with encoding and retrieval processes (Peters, 1991). Unfortunately much of what has to be remembered is often anxiety ridden, and most children are very anxious in the courtroom when testifying. Passage of time has also been shown to affect memory retrieval with more information remembered after shorter delays than longer delays (Howe, 1991). It is no secret that in court, there are usually lengthy delays between hearings and child witnesses are expected to remember details of events that happened in the distant past.
Areas of difficulty in memory retrieval which appear to be particularly age related are source monitoring problems in young children under three (Gopnik & Graf, 1988), script memory in children under five (Farrar & Goodman, 1992) and suggestibility (Ceci & Bruck, 1995; Poole & Lindsay, 1995). Careful interviewing of children is essential to insure that children's memories for events are preserved and their evidence is not tainted.
Implications of Developmental Research for Child Witness Involvement in the Court System
Overall, findings in child developmental research support the participation of child witnesses in the criminal justice system, suggesting that they have much to offer that is forensically relevant. The research also indicates that many aspects of current court procedures must be modified, in order to improve the quality of children's evidence and minimize their trauma. There is an urgent need to modify the complexity and nature of questions put to children on the stand, and the need to treat child witnesses in a more sensitive and enlightened manner, so that they can share their experiences with the court. More training for professionals on how to interview and question young children in a forensic setting, as well as strict guidelines on the nature of questions put to children on the stand by lawyers are needed. Finally, better implementation of existing legislative provisions to reduce child witness stress in the courtroom and less restrictions on the use of various provisions with child witnesses must occur.
Children have much to tell us about their victimization experiences, but many children are not able to withstand the pressures that are brought to bear in court, nor are they able to meet the cognitive requirements inherent in existing inquiries into the oath and the intimidation in cross-examination. Unless further attempts are made to modify the way in which children's evidence is solicited, children will not be able to give the court full and candid accounts of what has happened.
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