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 (continued)

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

2.2 Understanding the Meaning of the Truth and Making a Promise to Tell the Truth

Much has been written about children‘s knowledge of the truth and their appreciation of the difference between a truth and a lie (e.g., Gopnik, & Astington, 1998). The truth seeking function of a trial is dependent on many different things, but in a case of child abuse where the child is the only crown witness, it is vital that the child understand that they have to provide truthful testimony. Haugaard (1993) suggests that in order for the truth to be a meaningful concept in communication between two people, they must share the same definition. Research into children‘s perceptions of truth and their responsibility to tell the truth, suggests that young children have definitions of truth and lies that are qualitatively different than older children and adults.

Piaget (1962) determined that the definition of lying held by children under age seven, was to commit a moral fault by means of language. His research showed that young children under five tended to define lies more broadly than older children or adults. Children between five and seven tended to judge events from a perspective of moral realism. If a statement was inaccurate, children perceived it as a lie, if a statement was accurate, it was perceived as the truth. Also in the case of younger children, the intent of the speaker did not generally count in their determination of truth and lie. It was only as children got older (over 7) that the intent of the speaker became more important than the outcome.

A study by Haugaard et al. (1991) examined young children‘s definitions of truth and lies in response to a series of three vignettes. The first vignette described a situation in which a girl lied about being hit by someone. The second vignette described a girl who lied to protect a friend. Finally the third vignette described a girl who lied under the instruction of a parent. The investigators found that most of the children they tested did not have definitions of a lie that would disqualify them as competent witnesses in court. All children tended to be able to identify the critical factor in determining the truthfulness of the girl‘s statement in the three vignettes. Ninety-four percent of the children correctly recalled that the girl was not hit and said she was lying, and ninety-one percent of the children stated that a friend who lied to the teacher to protect a friend was telling a lie as well. With respect to the vignette involving parental instruction to lie, the majority of children recognized that the girl was lying even when instructed by an adult to say things happened in a certain way. The children examined in this study, ranged in age from four to seven. The authors concluded that most young children under 7 could discern a lie from the truth, and only a small percentage of children erred. However, they cautioned that one should not assume that all children have an adult-like definition of the truth.

A related area of research by Astington (1988) on the act of promising also has relevance for the conduction of inquiries into the oath. Her research showed that children‘s understanding of the circumstances and obligations entailed in promising emerges fairly late in their development. In her study, she determined what types of speech act five to thirteen year old children would call promising. The children were presented stories in which a speaker sometimes promised an event outside their control (predicting), or promised that a past action had been performed (asserting). Children under the age of five had difficulty differentiating between predictions and assertions because they tended to focus on the outcome as the determining factor. In almost all cases, children‘s judgment of the speech act as promising or not, was in agreement with the fit between the speech act and the outcome. Between six and nine years of age however, children started to distinguish between promising and predicting in terms of the speaker‘s responsibility for the outcome.

Astington (1988) concluded that the most important result of this study was that children did not have a concept of promising as just a speech act, as something done simply by saying. Children saw promising as including the performance of the promised act. For them a promise was something you said you would do and was not a promise unless it was done. For the children in her study, a promise was a true statement. This definition of a promise differs from the definition of adults who view a promise as simply a speech act that does not depend on the outcome. It has important implications for court, because it is suggested that when children promise to tell the truth, they mean to do so with actions.

Young children's understanding of promising has been more recently studied by Maas and Abbeduto (1998). Their research replicated Astington‘s findings on children‘s understanding of promising. Results from these studies support the recommendation that child witnesses under fourteen, should simply promise to tell the truth when they testify, rather than engage in a long drawn out voir dire to determine if they can swear an oath. It is encouraging that research findings suggest that when children promise to tell the truth, it includes the act of telling the truth.

Support for this less intrusive practice and more straightforward approach was offered in an early paper by Melton (1981) entitled Children‘s competency to testify. In it, he suggested that asking children about the meaning of such abstract terms such as the truth, an oath, a lie and promise, tells you more about their cognitive intellectual development than their propensity to tell the truth. He recommended that having children simply promise in court to tell the truth was the best alternative.

2.3 Children's Abilities to Make Inferences About Other's Intentions, and to Take Another's Perspective

If children under ten who are testifying are asked to infer the intent of an accused ("What was the accused trying to do there, was he hoping to scare you and trick you?"), or explain another child witness's perspective ("What were the other children thinking when the accused ran up to them?") or what another person would see if they had been there ("What would I see if I walked into your room?"), they would have great difficulty. This is because young children have problems describing what others are feeling, are not very astute at inferring intent, and tend to respond to those types of questions by simply projecting their own feelings and their own perceptions onto others.

Research on children's abilities to infer intent in others, suggests that although very young children can understand an intended simple act of an adult, they can't necessarily understand the adult's intentions (Meltzoff, 2000). This skill develops slowly over time and with repeated exposure to the behaviors of significant others around them. Asking young children on the stand to infer motives to other's behavior (Fivush & Hudson, 1990), or having them take another's perspective when they have not developed an appreciation for the fact that others may see things differently than they do, is misguided and generally leads to inaccuracies in children's responses as they try to meet the demands (Selman et al., 1983).

The development of "mentalism" which refers to children's understanding of the mind (both their own and others) is critical to their ability to infer. There are individual differences in the age at which children first begin to construe others as having independent psychological states that underlie their behavior (Fivush & Hudson, 1990). Unfortunately, children three and younger have very limited abilities to reason about the knowledge and states of others. Typically all children under the age of seven will struggle unsuccessfully with this demand and children between the ages of seven and ten will need assistance to accomplish this task. Over the age of ten, much will depend on their individual experiences. The implications of these findings for the court are obvious. The nature of the questions asked of child witnesses must take into account their abilities to infer intent and appreciate other's perspectives.

Children also have difficulty dealing with ambiguous verbal messages on the stand. This is because they do not maintain a distinction between the actual messages in the question on the one hand and the speaker's intended meaning on the other. Their social naïveté makes it difficult for them to see the double intent that exists in a question put to them. Unfortunately, in court there are many occasions during a cross-examination that questions have double meanings. Children are asked questions, which on the surface seem straight forward, but have an ulterior goal beyond the simple answer.

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