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



More than any other area of research in child development, the study of memory, more specifically the study of children's abilities to remember events that have happened to them or that they have witnessed, has been a central focus in the overall evaluation of child witness competency. This interest has been timely, because children have been called upon in increasingly numbers in Canada to testify in legal matters.

Ornstein et al. (1991) suggest that verbal memory is central to effective testimony, as children cannot provide accurate reports about events that cannot be remembered. It is therefore important for the court system that research studies examine how and what young children can recall and how their memory abilities change with development. Only with a clear understanding of the process of memory in children can we even attempt to apply this knowledge to such settings as the courtroom.

Bringing children into the courtroom to talk about their past has not been without controversy. Arguments have ensued over whether or not children can provide accurate accounts of their past experiences and more recently, concerns have been raised over the so called "malleability" of children's memory (Ceci & Bruck, 1993; Poole & Lamb, 1998). The following section will summarize some of the findings to date in the area of children's memory. The problem of suggestibility in children's memory, and current recommendations for interviewing styles which safeguard against tainting children's accounts will be included as well.

The quality of children's memory is best viewed as dependent on developing cognitive meta-structures or frameworks, which assist children in organizing and interpreting the remembered material and facilitating retrieval. Many authors emphasize that memory in children must be understood within the context of their cognitive, language, emotional and social development, as well as the broader environmental setting in which the events have taken place.

There are characteristics of children such as their stage of cognitive development, their emotional state at the time and their knowledge base that affect how they remember an event. There are also characteristics of an event (e.g., whether it is traumatic, personally salient, witnessed but not experienced), which affect the initial memory trace. As well, the individual characteristics of children interact with the characteristics of the interview itself (such as the nature and complexity of the questions and the personality style of the interviewer) to affect how children remember the event at the interview and what information is finally reported. All of these different factors will be covered in this section.

4.1 The Processes of Memory

Ornstein (1995) has described a framework for how information flows within the memory system. He has identified three interrelated processes: encoding, storage and retrieval. During the process of encoding, details of an event are entered into memory. This encoding can be deliberate, such as when children are studying words for an upcoming school quiz or memorizing the rules to play a board game, or it can be incidental as in the case where children remember information about an event without having the expectation that they need to remember any specific details about that event. This latter situation more closely resembles the situation that faces most children who are interviewed about their experiences in an investigative interview and then are expected to testify in court. In cases of child victimization, children have no idea at the time they are in the situation, that certain details should be put to memory in case of future questioning. The information that is entered into memory is acquired in an incidental fashion.

It is hypothesized that the strength of the information, which is stored in memory, is affected by whether it is remembered incidentally or purposefully. Stronger representations are thought to be retrieved more readily, whereas weaker representations are more difficult to access. This helps explain why some details are not available in children's accounts of their victimization experiences when encoding has been incidental.

The next stage in memory is when the encoded information is stored. It is hypothesized that children's abilities to store information is well established very early in life. The difficulty is that they lack the meta-cognitive framework to organize the encoded information effectively until they are at least between the ages of five and ten. If we use the analogy of a library system to represent the process of memory in young children, we can say that children tend to be poorly organized librarians. They do not necessarily catalogue the books or encoded memories in a systematic manner such as alphabetically or by subject matter. Therefore although the ‘books' may be in their library system, it is difficult for them to find specific books without other cues or reminders as to their location on the shelves.

The third stage in memory is retrieval, which is the means by which children attempt to access their encoded memory in storage and provide a verbal account. Retrieval is dependent on at least two factors: (1) whether the information was ever encoded in the first place, and (2) whether children can access it, in response to the questions that are put to them. Retrieval is therefore to some extent dependent on the nature of the cues provided to children to assist them in accessing their memory storage. It has been suggested that young children need more help than older children to remember, and more social support in the form of specific questions, prompts and cues to produce the details they have encoded (Fivush, 1993). That is one reason why they tend to produce less information about an event in free recall. Although it is possible that they may have encoded less detail at the time of the event, it is more likely that they have difficulty retrieving the details they have encoded, without external cues from the interviewer.

In general, research has shown that increased information processing abilities, better use of memory strategies and greater knowledge, all interact to produce more accurate and stronger memory traces in children older than five, than in children three to five (Ornstein et al., 1992).

4.2 The Use of Narrative Accounts in Memory

Retrieval involves more than just reporting details of an event. Neisser (1982), explained that in order to produce a coherent account of an event, children must talk about the who, what, where and where of an event. This requires the ability to produce a narrative account of what has occurred in the past. The use of the narrative form improves with age, and by age five or six children are able to provide a fairly coherent narrative about a personally experienced event (Hudson & Shapiro, 1991). Unfortunately, preschool children do not have the narrative skills to recount past events in a sequential form and therefore are dependent on others to provide external structure in order to produce the event in a meaningful order. Many protocols strongly advocate the use of free narratives when questioning children about forensic events. Although this may be a good way to start an interview, this method will generally not offer the interviewer sufficient information when young children are involved. A balance appears to be in order.

Take a scenario where an intruder has been discovered in the boys' washroom during a routine check by the janitor at an elementary school. Ten male children in two classes, who have used the washroom that morning, are later interviewed by the principal about their visit to the washroom.

In the first interview, the principal asks a five year old child the following introductory general question, "Can you tell me all about your day in school today?" The child mentions a number of irrelevant activities that have taken place in the classroom, describing that they did counting and drawing and that he ate his snack, which was vanilla pudding. There is no specific mention of his visit to the washroom. The principal then asks if the child went to the washroom in the morning. The child nods and reports that he washed his hands afterwards because he didn't want germs. No other information is forthcoming. The principal then asks if he was alone in the washroom when he went there. The child responds with a one-word answer, "no". The principal then asks who was in the washroom when he was there and the five-year old boy responds that there was a man in the washroom too. The principal asks what the man was doing in the washroom and the child responds that he was "hitting" his privates near the sink. More direct questions then follow in order to solicit details about where the man was and if he had removed his clothing. The child offers nothing spontaneously.

In contrast, a ten year old boy is asked about going to the washroom, and offers a fairly detailed account of what has transpired, corroborating much of what the five year old disclosed in response to more direct questions. However, he too offers nothing about the man in the washroom in response to the first very general question "Can you tell me all about your day in school today?" It is noteworthy too, that neither of the boys mention the man in the washroom to their teacher. In fact there are no unsolicited disclosures from any of the boys who have used the washroom that morning.

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