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)

2.9 Children's Concepts of Court

The reality is that most children know little about court and the criminal justice system before the age of ten and why should they? Some children may have misconceptions about court based on their exposure to television programs that exaggerate or distort what really takes place. Others have no idea about what happens in a courtroom. Child witnesses find themselves on the stand when they are complainants in sexual abuse or physical abuse cases, or perhaps as witnesses to the abuse of other children, or when they observe the assault or murder of adults in domestic violence cases. Whenever it is deemed that they have forensically relevant information to share about what they saw or experienced, they can be potential witnesses. When that decision is made, they are then thrust into a system that is very foreign to them.

Warren-Leubecker, Tate, Hinton, and Ozbeck (1989) have pointed out that a child may see the judge as a big man in a black robe with the power to punish, yet not understand that they will not be the object of that punishment. Younger children in particular may think that they understand the legal process, but in reality are subject to serious misunderstandings.

There have been a number of excellent studies assessing children's understanding of the legal process (Cashmore & Bussey, 1990; Flin et al., 1989; Melton, Limber, Jacobs, & Oberlander, 1992; Peterson-Badali , Abramovitch & Duda, 1997; Saywitz et al., 1990; Warren- Leubecker et al., 1989). Most of the studies have focused their attention on age differences in children's comprehension of court procedures. One consistent finding that has emerged is that as children get older, they do acquire a better understanding of the legal terms and court procedures.

Flin et al. (1989) studied approximately ninety Scottish children, aged six, eight and ten years. They found that by age ten most children understood the role of the judge, the role of a witness, the role of the police, and what it meant to break the law. These children did not however understand the roles of the lawyers and of the jury. They were not familiar with what a trial was or what was meant by the word "evidence", and none of them understood why a court would rely on evidence in determining the outcome.

In the United States, Warren-Leubecker et al. (1989) tested over five hundred children between the ages of three and fourteen with respect to their legal knowledge. They too found that there were age trends in legal knowledge. Of particular concern was their finding that young children between four and eight knew very little about legal personnel and court procedures.

In 1990, Cashmore and Bussey studied Australian children's knowledge of court personnel. They examined children between the ages of six and fourteen and similarly found that there were age trends in knowledge. They found that the role of the judge and witness was understood first and then the role of the lawyers and jury. In 1997, Peterson-Badali and colleagues found that most youth offenders charged with offences were unclear about the lawyer-client relationship. They examined youth at risk of re-offending at a treatment program and were concerned about the lack of knowledge that these young adolescents demonstrated regarding due process and the criminal justice system.

Victim witness support workers and child witness support workers, who prepare young children to testify in court, indicate that they are often struck by children's ignorance of legal terminology and procedures and by their naïveté. Children typically assume that all the adults in the courtroom will believe them when they explain what has happened and that all the adults (other than the accused) want the same court outcome as they do. Often this belief is even extended to include the accused, especially when it is a family member. Young children have been overheard to say with great conviction that their offending parent will probably tell the truth about the abuse in court because no one is allowed to lie in court, or that the offending parent will tell the truth because they will feel badly for them (the child) when they cry on the stand. Needless to say, this does not happen often in court.

Children's feelings of goodwill and their high expectations of the adults in court are especially extended towards the judiciary. Children cannot understand how a judge will not believe them when they are telling the truth. Many children have unrealistic expectations of the judge, seeing the judge as some one who will right all the wrongs that have been committed by the accused. It is not surprising that explanations of how a judge arrives at a decision employing a standard of beyond a reasonable doubt is so hard for child witnesses to comprehend. They expect the judge to see the events from their perspective. This is one of the reasons why court preparation is so important for child witnesses.

Another reason why children have difficulty in court is that children do not appreciate that the defense lawyers are not on their side. It can be quite painful to watch their bewilderment when they are rigorously challenged and intimidated on the stand. This is because young children (under 10) have difficulty understanding the adversarial system, the competing roles, two diametrically opposed views, and two different goals related to the same court matter. Children do not have the necessary cognitive skills to appreciate the underlying rules of the game. As a result, they are not guarded or careful in the same way as an adult will be when they are questioned on the stand. They do not appreciate that the motivation underlying a challenging cross-examination is to discredit them. When a defense lawyer suggests misinformation to them, they tend to view it as an honest mistake, not a tactic to discredit them.

Developmental studies support anecdotal observations that children under nine years of age may expect a degree of sincerity that is not present in the adversarial process because they have not yet developed an appreciation of the conditions that violate the sincerity postulate. This failure to understand a lawyer's intent can influence how readily a child might acquiesce to misleading questions on the stand. Not understanding the "big picture" in a court case makes child witnesses more vulnerable to attacks on their credibility.

An appropriate analogy might be a situation where as part of an assessment process, an adult is asked to put together puzzles from the Weschler Adult Intelligence Scale (WAIS), but not told that there is a time limit in which to complete all the puzzles. Not knowing this, the adult works slowly and meticulously reviewing each step for accuracy, but only completing half the number of items. This strategy would lead to a very low overall score. In that scenario, understanding that time is a factor was very important and not realizing this negatively affected the outcome. A similar problem confronts young children when they testify in court. Because they are not aware of the underlying rules of the game and because they operate under a sincerity postulate that is not always shared by the adults questioning them, the outcome can be compromised.

Eltringham (1999), in a draft paper written with Aldrige entitled The extent of children's knowledge of court as estimated by Guardians ad Litem, suggests that many professionals in the criminal justice system overestimate the extent of children's knowledge about court. In this paper he attributes this overestimation of children's knowledge to a failure to adopt the "psychological perspective" of children who are trying to navigate the court system. In the study, they found a discrepancy between what eleven-year-old children actually knew about court and what the Guardians ad Litem thought the children knew. They surmise that children are at times not well prepared because of this misperception and advise that more effort be made to assess children's understanding and knowledge.

In a recent PhD dissertation at Trinity College in Dublin Ireland, Maunsell (2000) reported her results on Irish children's understanding of the criminal justice system. Like other researchers, she found a main effect of age on children's understanding of the legal system. The older the child, the more familiar they were with legal terms and procedures. Based on her findings, she concluded that most children under the age of nine do not possess sufficient understanding of the criminal justice system to enable them to participate meaningfully as witnesses. She strongly advocated for court preparation for all child witnesses to bridge this gap in knowledge.

If anything, all these studies emphasize the imbalance that exists in the courtroom when children who are not familiar with the legal terms and court procedures are up against adults who understand more and have a sense of the "whole picture". The need for court preparation programs to help child witnesses understand the criminal justice system and interact more effectively cannot be overstated.

In summary, variability in children's thinking and knowledge exists between children of different ages, and between different children of the same age. Variability can even occur in the same child in different problem solving situations (Siegler, 1991). Children can function at a higher developmental stage in one content area than another, if they have had extensive practice (Lee, 2000). Woolard et al. (1996) suggest that psychological research must mirror the trend in developmental research toward identifying developmental pathways or trajectories that lead to relevant behavior. In the case of child witnesses, this is particularly important, as ignoring this variability in cognitive abilities can create difficulties for professionals who are faced with the prospect of determining the testimonial capacity and communicative abilities of a particular child who is going to testify.

Table 2 summarizes the relevant findings on children's cognitive abilities as they relate specifically to the demands of being a witness in court. Clearly the findings speak to the need for lawyers and the judiciary to modify the nature and content of many of the questions that are put to children on the stand.

Table 2 - Cognitive Skills Present in Children Relevant to Testimonial Competency
Cognitive Abilities Preschool (3-5) Early Primary (6-9) Later Primary (10-12) Early Adolescence (13-14)
Domain specific court knowledge No Minimal Yes Yes
Comprehension of oath, lie, truth and promise Minimal Yes, but not the term oath Yes Yes
Ability to infer other's intentions, motives and feelings No No Yes Yes
Comprehension of ambiguous verbal messages No No Yes Yes
Ability to comprehend a hypothetical question No No With difficulty Yes
Ability to estimate times, tell time and provide accurate measurements No No yes Yes
Ability to monitor one's own comprehension No No yes Yes
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