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

1. INTRODUCTION (continued)

1. INTRODUCTION (continued)

1.8 Facing the Accused - The Impact on Child Witnesses

Of all the fears that child witnesses report, facing the accused is ranked by children as the most intense (Sas, Austin, Wolfe & Hurley, 1991; Whitcomb et al., 1994). Many studies have documented how children are fearful about talking in front of the accused in the courtroom. It is no secret that children are often threatened by abusers not to tell about the abuse, and are afraid for their personal safety on the stand when they describe what has happened. The nature of the threats that have been used to inhibit disclosures have been well studied, and from these studies it is apparent that children are often intimidated into silence, feeling vulnerable to further abuse when they are in the presence of the accused. Unfortunately, the same abuser-victim dynamic can exist in the courtroom.

Hafmeister (1996), in a survey of a large sample of American judges, questioned them on their efforts to minimize the stress of child witnesses in their courts. He found that most judges understood that children were fearful of the accused, but were still not inclined to use screens or closed circuit television provisions to protect them. They offered no explanation for this reluctance.

In the recent survey by Bala (1993) of approximately eighty Canadian judges, regarding their inquiry and their use of legislative provisions to protect child witnesses, one judge acknowledged that the presence of the accused was often overwhelmingly frightening to a child.

Despite everyone agreeing that children are often very frightened to face the accused in court, screens and closed circuit TV provisions are rarely used for child witnesses. At least in Ontario, most children testify in the same room as the accused, sometimes only a few feet away. They may be subjected to stares by the accused, subtle gestures, or even whispered comments, which go unnoticed by everyone else, but have a negative impact on their ability to tell the court what has happened. In children, fear of the accused does not promote truthfulness and a candid account.

1.9 Modifying the Criminal Justice System's Expectations of Child Witnesses

In summary, we have many expectations of child witnesses, as Table 1 demonstrates. Most of these expectations relate to traditional ways of dealing with matters in court, and few of the expectations take into consideration the developmental abilities and vulnerabilities of children. Historically, the actual treatment of child witnesses and the reception of their evidence on the stand by courts in Canada have changed very little. As more and more child witnesses testify in court, the criminal justice system needs to become more innovative, the procedures more conducive to receiving children's accounts of their victimization experiences. As a better understanding emerges regarding the communicative abilities and the emotional needs of children when they testify, unrealistic expectations of children will hopefully diminish and procedural accommodations will be offered by the court to ensure that child witnesses are equal participants in the process.

Table 1 - Expectations of Child Witnesses and the Developmental Skills Involved
Behavioral Demands Developmental/Other Skills Involved
Demonstrate familiarity with Court Procedures and legal terms "Domain specific" knowledge & experience
Demonstrate an understanding of the oath, truth, and lie Abstract thinking, religious and moral understanding of concepts
Stand alone in the witness box Self-confidence, social independence
Testify in front of strangers Self-confidence, social independence
Face the accused Courage, calm temperament
Understand difficult questions Adequate Receptive language
Withstand intimidation, social pressure, suggestions by lawyers Emotional self-regulation
Retrieve memories even after long delays Well-developed memory function (short & long term)
Respond to questions meaningfully Adequate Expressive language
Appear credible and confident in the witness box Testimonial competency or all the above
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