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

2. CHILDREN'S COGNITIVE ABILITIES AND THEIR IMPACT ON COURT TESTIMONY

2. CHILDREN'S COGNITIVE ABILITIES AND THEIR IMPACT ON COURT TESTIMONY

Cognitive developmental research, where we draw most of our understanding about children's thinking processes, is a significant area of developmental psychology that investigates the acquisition of knowledge in children. The relevance of cognitive development research for professionals working in the criminal justice system with child witnesses cannot be overstated. Many of our questions about the testimonial capacity of children can be answered by a better understanding of the cognitive abilities of children of different ages. For example, is it reasonable to have children as young as three testify in court about their experiences given their stage of cognitive development? What does this area of research tell us about how young children make sense of the world around them, how they develop strategies to organize the information they perceive and how they communicate that knowledge? Should we modify the way we interact in court with children of different ages based on what the research demonstrates about their cognitive abilities? Unfortunately, despite an abundance of research in developmental psychology on children's cognitive abilities, there has been little impact on the way child witnesses of different ages are treated in court.

There are three areas that form the basis of most research on children's cognition. The first area is the study of the structure of children's knowledge, in particular how knowledge is represented by children and how it changes as they get older. For years Piagetian theorists have suggested that there is a global systematic stage-like change in how knowledge is represented in children (Piaget, 1983; Wadsworth, 1971). Piagetian theorists hypothesize that all children must go through each developmental stage in succession as they age, and that children of the same age are remarkably similar in their cognitive abilities. This view of children's cognitive abilities has generally been widely accepted and appears to have impacted on the general treatment of children by the courts and the reception of their evidence. Many procedural decisions are made based on the age of the child witness offering evidence (e.g., children under fourteen must engage in an inquiry into the oath before they testify and legislative provisions such as screens and even the availability of a support person for child witnesses are limited by the children's ages at the time of testifying). Age specifications in statutes appear to represent implicit developmental frameworks (Woolard et al., 1996).

However this global theory of cognitive development has come under increasing scrutiny. As early as twenty years ago, an unevenness in children's cognitive abilities was discovered by Fischer (1980). At that time, he suggested that children could be at one stage in one cognitive ability and in another stage in another, something Piagetian theorists refuted. Recently, Klahr (1992) has suggested that cognitive development is more about systematic changes in children's "capacities" to represent knowledge, than about the actual structures in which their knowledge is represented. This too challenges early Piagetian cognitive theory. Both the unevenness in cognitive abilities in children and the emphasis on the capacity in children to represent knowledge, reflect the current notion in cognitive developmental research of a more fluid dynamic development in children, in which cognitive abilities are constantly shifting and individual differences are considered.

The second focus of cognitive development research in children has been on the processes by which children acquire knowledge. How do children store and organize information about the world around them? How does their knowledge regulate their behavior in different situations? It has been suggested by Rogoff (1990) that cognitive development in children is an apprenticeship in which children slowly acquire knowledge and skills by participating in society's structured activities together with their parents. The hypothesized processes by which children acquire the knowledge to help them make sense of the world and assist them to actively engage in it, include all of the following; sensation, perception, attention, memory, concept formation, language, symbolic functioning and thinking (Lee, 2000). For example, much research has been devoted to understanding how a child learns language, how they think about the world, and how the various processes such as attention and language interact to affect a child's behavior. Is it true that in order for children to think about something in the past, they first need language? Are pre–verbal children not able to remember events until they develop vocabulary to give labels to objects and descriptions for events in their world? When can children think about something that is not directly in front of them?

Researchers have found that even children under twelve months of age will remember an object that is taken away from their point of vision. Is it only because they have developed a word symbol or concept for the object? Is part of the memory difficulty present in very young children related to their lack of language skills? These and other questions are important to consider, in particular because they have implications for preschoolers' testimonial abilities, and for young primary school aged children, who do not have well developed vocabularies or metacognitive frameworks to organize experiences.

The third focus of cognitive development research has been on the actual acquisition of specific knowledge domain. What do children know and how have they acquired those facts? What is the impact of the environment on children's knowledge? What do most children of different ages know about the physical world? This area of study has particular significance for children's involvement in the court system. Most children do not have any experience with court process and have not ever been exposed to a courtroom or the expectations of the witnesses. They are unaware for the most part of the legal system, and do not appreciate the fact that matters are routinely dealt with in court.

At what age do children acquire the skills that are fundamental to the role of witness and how do they learn theses skills? It is generally agreed that testifying in court requires 'domain specific' knowledge. How many children are familiar with the roles of various court personas, the procedures, which exist, and the reasons why matters are brought to court in the first place? Does this lack of knowledge and understanding of the adversarial system in any way affect the reliability of the evidence they give, and does it place them at a disadvantage compared to adult witnesses during a trial? Is it possible to compensate for this lack of knowledge by educating children about the court system?

What about other knowledge? Children often have to give evidence about complex social issues such as sexual abuse and domestic violence. Does a lack of sexual knowledge, unfamiliarity with sexual terms and a lack of labels for body parts make it more difficult for children to testify about sexual abuse?

The area of cognitive developmental research has examined different aspects of children's cognitive abilities, many of which have direct implications for testimonial competency. The next few sections will highlight some of there pertinent areas.

2.1 Bridging the Gap in Knowledge for Child Witnesses

The notion of a "zone of proximal" development in children suggests that one cannot teach children what they are conceptually not ready for. Does this mean that in the case of very young children we will not be able to explain how the Criminal Justice System works and what their role as a witness will be? Is it possible to scaffold or bridge children‘s knowledge of court by combining a preparation approach that reduces the complexity of the demands placed on children testifying and teaches them as much as possible about court and their role as a witness? Are there some concepts which children of certain age ranges will not be able to respond to despite preparation?

Much of the court preparation that is offered to children by various witness programs focuses on bridging the knowledge gap in children, by offering them basic didactic information regarding the procedures in court and the expectations of them as witnesses. Depending on the age of the child more or lesser amounts of information are taught, but there appears to be a minimum core curriculum, which forms the basis of most preparation programs. What has not been adequately studied is the efficacy of the preparation offered by most programs and whether children emerge with not only specific details and terminology, but also a more global understanding of how the court system works. It can be argued that without this more global understanding, children are at a disadvantage because they fail to appreciate the premises upon which the proceedings are based. That the process is adversarial in nature and not simply fact finding, is an important concept, one which is not appreciated by many child witnesses.

According to Melton (1981) even if a child doesn't comprehend a situation completely, they can still remember relevant facts for court. In reviewing the current research on children's cognitive abilities, a general observation that has been made of the forensic value of children's reports, is that even very young children can be logical about simple events that have meaning in their lives, especially when the events about which they are asked are emotionally salient for them (Goodman, Rudy, Bottoms, & Aman, 1990; Orbach & Lamb, 1999; Steward, Bussey, Goodman, & Saywitz, 1993).

A single case study reported by Jones and Krugman (1986) described the disclosure by a three–year–old girl of her abduction, assault and abandonment in an outhouse pit. Her account was found to be remarkably complete and highly accurate, when it was later compared to the confession by her adult abductor. In another study of preschoolers' accounts of traumatic injury, Peterson and Bell (1996) found that children's memories for traumatic injuries were good. Even three–year–old children were able to provide very accurate information about their injury and trip to the hospital.

When children enter the courtroom however, difficulties arise as they are asked age inappropriate questions about the events that they have experienced or witnessed. Little attention is paid to their cognitive abilities. Even if they enter the courtroom with a clear idea of what has happened to them, they may not be able to share their memories because of the way in which the questions are asked in court and because they lack an understanding of the unwritten "rules of engagement" in the courtroom.

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