The Interaction Between Children's Developmental Capabilities and the Courtroom Environment: The Impact on Testimonial Competency
Children are usually asked when incidents occurred and how long they actually lasted. Often they are asked to provide information on the actual number of times abusive acts took place in the past. What does the literature actually tell us about children's abilities to count and estimate frequency? Lyon (in press) points out that one has to be very careful when reviewing the literature on children's competencies in any of these areas. He suggests that developmental research generally refer to the youngest age at which a competency first appears under optimal conditions. Testifying on the stand is likely not an optimal condition and we need to keep this in mind when we determine the appropriate age to ask certain types of questions in court, especially regarding measurement.
Observations of children on the stand suggest that they have great difficulty estimating the number of times an event occurred. This is especially true when children are asked to recount the frequency of abusive incidents that have spanned several years. Children tend to be able to talk about the first and last time an event occurred, but have difficulty enumerating the other times in between. Although young children may be able to count up to 100, this is only because they have memorized the referents in order. They may still demonstrate difficulties counting up similar events and coming up with a grand total for the court.
Conventional systems of time measurement such as seconds, minutes, hours, days, weeks, months and years are learned gradually over the course of elementary school (Saywitz & Camparo, 1998). There is great variability in these skills, even in same-aged children. This is because these concepts are very abstract and children only understand them once they can make a connection to real life events. Young children are not able to definitively say how long something took to complete. The duration of an event is hard for them to estimate because they have not yet learned how long seconds, minutes and hours take. They also do not appreciate the relationship between these time segments. Very young children may respond to a question like "how long did the touching last?" with a response suggesting five seconds, when they actually mean something more like five minutes! This of course presents a challenge for the court. Determining that a child is not credible because they have told the court that the sexual intercourse took only five seconds ignores the argument that developmentally inappropriate questions do not further the goals of fact-finding and truth.
With respect to days, weeks, months and seasons of the year, young children may be able to rattle off the names of the days of the week or the months of the year, but they still may not have an understanding of the broader picture, that is the relationship that exists between all of these concepts. Many children do not know which days are the weekdays and which days make up the weekends. Some children do not know which months occur in the different seasons of the year. Most children ten and younger, know the current calendar year and the year they were born, but have difficulty placing other significant events along a time line in between. That is why young children do not know if an event occurred over a long time ago or a short time ago (Park & Renner, 1998). Especially for preschoolers there is no distant past, just a yesterday. For primary school aged children, there is a past, but it is very compressed.
With respect to telling time, preschool children cannot tell time accurately. That skill generally develops in children over eight and even then is not well established until age nine or ten. Asking young children what time a certain event occurred is likely not going to be helpful, as the responses will not be accurate. It is more meaningful to ask children to relate when an event occurred relative to other time markers in the day (breakfast time, lunch, after school, supper, just before bed).
A related ability to telling time is the estimation of age. Children have great difficulty estimating another person's age. Anyone who has children in elementary school has arrived at school on "meet the teacher's night" to find out that their child's very old grade one teacher is at most twenty-nine. The best way to approach that line of questioning is to have the child compare the person they are talking about to someone they know in their family.
In summary, observations of court proceedings have shown that despite known difficulties in the area of measurement and time, child witnesses are regularly asked to explain to the court exactly when an event occurred, that what time of day, which day of the week, what month and what year. They are asked to estimate how long ago the event occurred relative to when they disclosed and relative to the court hearing. If more than one incident occurred, they are expected to remember how many times the incident happened and even how much time elapsed in between incidents. They are also expected to estimate the length of time the incidents endured. This continues in spite of a sound knowledge base indicating that this is not the way to question children about events that have happened in their lives. The approach, which should be endorsed by the court, is the promotion of questions that do not require well-established numeracy skills and an ability to place events exactly in time.
Another approach is to insure that when charges are being laid on behalf of a child complainant, a long period of indictment in which the offences are alleged to have occurred should be considered. Perhaps child complainants can only remember that they were living in a certain house, or attending a certain school when victimized. A longer period of indictment will allow for this flexibility. In determining this indictment period, it will be helpful if family families can remember other relevant events that may assist the court to narrow in on the dates.
Based on findings emerging from the research, the rule of thumb should be that abstract concepts such as estimating the time and date an event occurred, determining the frequency and duration of incidents should be avoided by everyone when possible. However, regardless of the child witness's age, asking the right questions in court will be a challenge and deserves careful consideration.
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