The Interaction Between Children's Developmental Capabilities and the Courtroom Environment: The Impact on Testimonial Competency

1. INTRODUCTION (continued)

1. INTRODUCTION (continued)

1.4 Children's Qualitative Experiences on the Stand

Once children enter the courtroom, there are a myriad of expectations, which are implicit in the role of a witness. In Canada, access to court preparation services varies from province to province and from jurisdiction to jurisdiction. Many child witnesses do not receive any formal preparation and are not specifically taught anything about court procedures and the legal terminology that is employed in the courtroom. Some children only meet their crown attorney on the day of court and enter the courtroom to testify, not knowing anyone. Others may have had some court preparation through Victim Witness Assistance Programs or Child Witness Programs.

In the courtroom, children can expect to find an array of adults (court persona who are all familiar with court procedures) and of course the accused. There may be others as well if members of the public have come to observe the hearing. Family and friends of the accused often attend, which can be yet another source of anxiety for a child witness. When one thinks about it, there are few experiences in a child's personal life which prepares them for the task of giving evidence about emotionally difficult topics, attending a formal courtroom and talking in the presence of many adult strangers, some of whom who may be hostile.

The recent survey of 900 cases of alleged child abuse in Ontario (South-Western Ontario Child Witness Network, 1999) found that the majority of children who testified did so without the benefit of a screen or closed circuit television, and without the benefit of even a support person to accompany them to the stand. Bala, Lindsay, et al. (2001) in their examination of Canadian implementation of legislative amendments, found that provisions such as the screen or closed circuit television are rarely employed. Children typically testify in the traditional manner, like adults.

Another significant finding from the Ontario Child Witness Network study, was that parents are often excluded from the courtroom while children testify, as they can be potential witnesses in the cases and there is a standing court order excluding witnesses. Commenting on the practice of having children go into court alone, Myers (1996) in his chapter entitled "A decade of international reform to accommodate child witnesses", compared the experience of children facing a hospital procedure and those facing the prospect of giving testimony in court. He concluded the following, "At the hospital, emotional support is an integral part of treatment and parents are partners in therapy. At the courthouse, however, things are different. The tradition in court is that the child must go it alone" (p. 234).

Recent social science research has demonstrated that young children who are asked to separate from an attachment figure and accompany a stranger into an unfamiliar office often experience considerable anxiety (Saywitz & Elliot, 1999). This separation anxiety is no doubt mild compared to the anxiety that must be engendered in children when they must enter a courtroom on their own. Research has also shown that separation anxiety is even more likely if a child has been maltreated in the past (Saywitz & Elliot, 1999) and the clinical literature on intrafamilial abuse documents the importance of a supportive non-offending parent to a child's postdisclosure adjustment (Sas et al., 1995). Children need to have a parent in the courtroom. It stands to reason that maltreated children are even more vulnerable on the stand. The irony in all these findings is that the majority of child witnesses who testify come to court to talk about their own victimization experiences and nearly all of them have to enter the courtroom without the support of a family member.

Given this scenario, we must consider the possibility that our social expectations of children when they testify in court may go beyond what most children can comfortably cope with. We need to ask ourselves what the implication is of having a highly anxious child on the stand. There is now empirical evidence, which indicates that if a child is traumatized during their court experience, such trauma can affect what is said in court, how it is said and consequently the child's credibility in the eyes of a jury or judge (Hamblen et al., 1997; Saywitz & Elliot, 1999; Stafford & Asquith, 1992). It stands to reason that if we ignore a child witness's emotional needs, the final court outcome may well be at risk too.

1.5 Understanding the Expectations of Child Witnesses on the Stand

What are the actual demand characteristics inherent in the task of giving evidence? Walker (1993) in her observations of children giving evidence, outlined six basic expectations of child witnesses:

  • (1) That they have observed or experienced the event in question,
  • (2) that they can recollect the event in question,
  • (3) that they can communicate their recollection verbally,
  • (4) that they understand the questions put to them on the stand,
  • (5) that they are able to give intelligent answers to the questions put to them, and
  • (6) that they are aware of their duty to speak the truth.

Melton (1981) who wrote about this more than ten years earlier, suggested that a child witness must have:

  • (1) The cognitive skills to adequately comprehend what they have experienced,
  • (2) be able to organize that experience cognitively,
  • (3) be able to differentiate the memory in question from other memories or fantasies, and
  • (4) be able to maintain and demonstrate these skills under stressful conditions.

Common to both Walker's (1993) and Melton's (1981) analyses, is the notion that in conceptualizing their testimony, children must be able to order the events in space and time, de-center their experiences and feelings, and monitor their own responses and comprehension.

Greenhoot, Ornstein, Gordon, and Baker-Ward (1995) in their examination of child witness behavior, suggest that young children's verbal reports about an event may not reflect what they actually remember, because they cannot meet the behavioral and cognitive demands of the interview or examination. This appears to be particularly true of the court experience and is not necessarily limited to younger children. Older children often experience difficulty on the stand as well. In addition to the cognitive and behavioral demands of testifying, there is the underlying expectation that children can tolerate the emotional demands placed on them.

It should be no secret that children perform best when they are comfortable and understand what is expected of them. Research over ten years ago by Peters (1991) demonstrated that children's memory performance was impaired if they were questioned about a stressful event by an interviewer who employed a stressful confrontational style. Moston and Engelberg (1992) suggest that allowing social support may have a facilitative effect on task performance. They too note that the intimidating physical environment of the courtroom can undermine a child witness's eyewitness testimony.

Saywitz and Elliot (1999) in their handbook Interviewing children in a forensic context, strongly recommend an atmosphere that is not accusatory, intimidating or condescending. They refer to the accumulation of research that suggests that anxiety impacts negatively on children's memory. It is no secret that the atmosphere in the courtroom can be quite tense at times, even highly charged. Do children really possess the emotional resiliency to deal with so much pressure?

If the prospect of testifying in an intimidating setting is not enough to inhibit most children, the fact that the proceedings are actually carried out in what has sarcastically been referred to as a foreign language or "legalese" (Quas, Goodman, Ghetti, & Redlich, 2000), makes the experience even more difficult. As will be explained in more detail later, many of the legal terms are unfamiliar to children, the phrases too confusing, the questions too abstract. When these obstacles are added to the other stressors that have been described, the task of testifying can seem insurmountable to children.

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