Studium

The criminal justice system in the United States is concerned with one purpose—the act of distributing justice. The opinions of citizens differ in regards to the effectiveness of the criminal justice system in its proper distribution of justice. Some may believe that in certain cases justice was served or preserved, while others would believe the contrary. What remains true is that there is an overall idea of justice that the U.S. criminal justice system tries to create and protect. However, there are some instances where the legal system fails to deliver justice—the most obvious and perhaps most controversial is when the victim is a child.

There is a major problem when dealing with cases in which children are victims of sexual assault. The Los Angeles Times conducted the largest poll to date regarding child sexual assault and found that 22 percent of Americans (27 percent of women and 16 percent of men) were sexually victimized during childhood. Experts went on to conclude from this report that child sexual abuse is one of the most underreported of all crimes. Fewer than half of the respondents to the Los Angeles Times poll told a close friend or relative about their victimization within a year and only about 3 percent reported the incident to some type of legal authority (Dziech and Schudson 1991).

Even when these crimes do get reported, the criminal justice system is ill equipped to handle the problems that arise when children, especially very young children, testify in court. The scope of the problem, when children testify, is deplorable and unforgivable when it becomes obvious that a child’s capacity of right and wrong skews their perception of reality, which causes the child to create falsehoods and fallacies. It is in human’s nature to believe children because of the innocence they represent, but to allow that veil of blind adoration to keep one from the truth would and will continue to deny justice to the deserving. Some years ago the Supreme Court of the United States noted “that it is far worse to convict an innocent man than to let a guilty man go free” (Dziech and Schudson 1991, 75). The U.S. as a nation should strive to keep this fundamental value intact. Though as Judge Charles B. Schudson stated, “Deep down, many of us worry that our legal system is at its very roots unable to grapple with this horror for which it was not designed” (Dziech and Schudson 1991, 74).

Children’s testimony is a difficult issue to handle, especially that of very young children between the ages of three and five. This is due to the fact that many children at this age lack the necessary mental capacities that the legal system requires for a competent witness. There are specific issues and problems where most research on the subject of child testimony lies: memory development, competency, memory capacity, hearsay, as well as a few other special problems to be discussed. When the facts of these issues become clear, it will be easy to see that indeed the legal system is not well enough equipped to handle and allow for children’s testimony.

A child’s ability to provide accurate information during interviews (i.e. courtroom testimony) depends on the child’s capacity to remember. Memories of specific events are reconstructed through complicated cognitive processes that mature with age (Myers 1998). There are only a few ways in which memories can be recalled, and psychologists have discovered that with young children, the recall process is not as developed as it is with older children.

The most frequent type of memory recall is known as “free recall,” whereby a child recalls an event without assistance from external cues or stimuli to trigger memory. With free recall, the child relies on internal memory strategies to recall the recollection (Myers 1998). This is probably the way in which most courtroom testimony is given, using this type of recall, where the lawyer asks an open question like “what happened then?”, giving the witness no clues or hints as to what to say. As reported by psychologists, when young children are asked open-ended questions, which require free recall, they spontaneously recall less information than older children and adults. This leaves the lawyer to have to ask leading questions, whereby the lawyer/interviewer is prompting a certain response to a question that should be considered inadmissible. Another type of recall that court testimony faces is “cued recall,” and the problem it promotes is the same as free recall. Cued recall is the process of recalling a memory by use of a stimulus or “memory jogging.” This method of recall requires the interviewer to ask more specific questions like “Did he have a beard?” or “Was the color of the car blue?” This type of questioning flirts with the act of leading questioning, which is an obvious objection in court (Meyers 1998). Already it seems clear that when children are testifying it begs the court to change the rules, and any judgment that is reached after leading questions have been allowed, is subject to appeal and perhaps an overturned conviction.

It has recently been shown that young children can retain and recall events that occur over twenty-four hours before and some children can remember events for a few weeks or longer after they occur. However, as time passes, there remains a possibility that experiences become inaccessible to recall or are forgotten. There are two reasons why: (1) Immaturity of the neural substrate necessary for retention/remembrance over a long term, and (2) the lack of means, in children, by which early memories can later become available for verbal expression (Cowen 1997). Therefore, children run the risk of forgetting what has happened, and with the length of court proceedings, the legal system may take too long, allowing the child to forget some necessary details.

There are other theories that psychologists have developed that have cast doubt on the reliability of children’s memory development. One such theory is known as the Diagetian theory, “which conceptualizes cognitive development as the acquisition of general cognitive competencies” (Cowan 1997, 303). According to this view, children must acquire a general cognitive ability before they can apply it to a specific situation. Based on this, pre-school and even elementary aged children are thought to be incompetent witnesses, because of illogical thinking and insufficient understanding of the moral implications of testimony (Cowan 1997).

Another theory, known as the Neo-Paigetian theory, paints an even more complex picture of children’s eyewitness abilities. According to this theory, children’s cognitive ability can be significantly more advanced in certain “domains” than in others. This theory also dictates that children’s memory performance may depend on the “nature of the to-be-remembered event” and the context of the situation. Therefore, one must infer from this theory that if the “to-be-remembered” event is familiar, meaningful, and significant to the child, then the child may be able to give accurate memory testimony. This applies, however, only if the questions asked are simple and understandable, if the child is not too upset or scared, and if the interviewers are supportive (Cowan 1997). Furthermore, these variables are not guaranteed to be present in the courtroom. If the child is upset, perhaps at the sight of the defendant, or feels uncomfortable being asked questions by strangers, then this theory states that a child may not give accurate testimony.

It is clear that a child may encounter some type of stress from the legal system. Not to mention, in cases of sexual assault especially, the child is most likely already dealing with a terrible amount of stress and trauma. This concept of stress does, in fact, affect children’s eyewitness capabilities, memory, and therefore testimony. There are three theories that explain this concept and provide new problems with children testifying (Cowan 1997).

The first theory is repression, which was originally created by Sigmund Freud as one of several defense mechanisms that serve to protect a person’s ego from unacceptable memories or information. More specifically, Freud states that when a person encounters a trauma, s/he may engage in an automatic, unconscious process of forcing the traumatic information out of conscious awareness, or in other words forgetting it. This means that if the trauma is too stressful, which in sexual abuse cases it certainly may be, the child can not remember it.

The second theory is the disassociation theory, and is very similar to repression theories in asserting that a traumatic childhood event can become lost to consciousness; only the mechanism differs. Disassociative responses are believed to arise as a coping mechanism for trauma. This view believes that a separate memory can be created for the event, that is not as traumatic, and that new memory is then believed instead (Cowan 1997). It is obvious that the new memory is not completely accurate, and if the child testified to it, the testimony would be invalid.

The third theory is known as “flash bulb” memory and is contrary to the first two, stating that stress actually aids in the detail of memory and retention. The idea behind this theory is that highly charged emotional events form picture like representations in the memory. For example, if a child was sexually assaulted then the theory would suggest that the child’s memory would create images of the event detailing different aspects of the crime—like what color things were and specific details about the assailant. The theory states that not only are significant details remembered quite vividly, but also that the memories are also quite resistant to being forgotten. However, skeptics of this notion, point out that it is often impossible to determine whether a flashbulb memory is accurate or not. Furthermore, not everyone agrees that flashbulb memories are impervious to forgetting (Cowan 1997). Regardless of the debate, in a legal sense, we should assume that there is a strong possibility that children may forget the incident due to reasons described by one of the previously mentioned theories.

Another important pair of psychologists, Ceci and Bruck (1995), discovered another possibility for the phenomenon of children’s lack of memory. Their theory is known as delayed recall; it is created by the fact that it takes many months for sexual abuse cases to reach trial. By this time it becomes difficult for young children to recall memories in their entirety. Sometimes the child will not remember the incident at all, and the more time that is allowed to pass, the more likely it is that the child will forget the incident. According to Ceci and Bruck (1995), perhaps it is likely that children just sometimes forget because of time delay caused by the overworked judicial system.

Putting the theories aside, the remembered events that a child may possess are not without questions of validity themselves. Children are subject to an unintended phenomenon of suggestibility in their memory formation. According to many psychologists, children are suggestible due to the way our memories operate (Gopnik 1999). Ample evidence has shown that in general, young children tend to be less complete in their reports of experienced events and more suggestible than older children and adults (Cowan 1997). As human’s age, we gain a better ability to encode experiences into our memory, and in the case of an older child it is more likely, than in the case of a young child, that memories will be reliable (McGough 1994). Reliable testimony is the cornerstone of the legal system, it speaks to the validity and overall truthfulness of a case, and without truthfulness justice would certainly be denied.

To help explain why suggestibility exists, psychologists have created the term “misinformation effect.” This misinformation effect refers to the phenomenon that introducing misleading information after the event may reduce subjects’ performance on a test of the original memory (i.e. witness stand). One explanation for the misinformation effect is the memory impairment hypothesis: post event misleading information and original event information either “blends” together in memory, or misleading post event information “over-writes” or replaces the memory for the original event, so that the memory for the original event is irrevocably lost (Cowan 1997, 304).

It becomes clear that the suggestibility of children can be very damaging to the legal system. With so much emphasis being placed on eyewitness testimony, especially that of the victim, in criminal cases there can be no room for error; the testimony must be the truth, the whole truth, and nothing but the truth. Due to the problems that arise during children’s mental development, there are situations where the truth is not always available, to the detriment of the defendant and the legal system as a whole.

Despite the problems that children face when communicating event-memory, the legal system still allows for children to testify; it would be safe to say that the system wants the child to testify. In order to allow for this, the child must be deemed competent, which requires specific guidelines that have been created to justify children’s testimony. Daniel Blinka, a professor of law at Marquette University was quoted as saying, “…procedure should be used rarely, since jurors are readily capable of assessing the veracity of the child witness. The evidence code is in favor of allowing the child to testify. All doubts should be resolved in favor of permitting the child to take the witness stand” (Dziech and Schudson 1991, 135). However virtuous this may sound, the evidence shows that the regulations for deeming a child competent fall short of accounting for all necessary problems.

Determining the competency of child witnesses has not been a universal principle among states, which is apparent when looking at the striking differences in their guidelines, thanks to the decision handed down by the Supreme Court in Wheeler v. United States (159 U.S. 523, 1985) This decision allows for deferment to states. According to the National Institute of Justice, fifteen states dictate that every person is competent, with no specific requirements (Whitcomb 1997). Fourteen states assert that anyone is competent, regardless of age, providing minimum requirements are met. These requirements commonly include capability of expression and an understanding of the duty to tell the truth.

One state merely asserts that age cannot be the sole reason for precluding a child from testifying, much like the decision in Wheeler v. United States. Twenty states provide much more specific guidelines for child witnesses. In four states, children are required to demonstrate their competency before they are allowed to testify. Nine states specifically exempt child sexual abuse victims from the competency requirements. Four states essentially waive the need for children to understand the nature of the oath. Obviously, some states question children’s competency much more than others, and rightfully so. Though, the states that have only minimal requirements are sometimes allowing for unfit witnesses to testify.

Overall, there are four dimensions of guidelines that the courts have set forth over the years to measure and “ensure” a child’s competency: “(1) Capacity for truthfulness: a child must understand the difference between truth and fantasy and appreciate the obligation to speak the truth. (2) Mental capacity: the child must have sufficient mental capacity at the time of the occurrence in question to be able to recall ‘truthful’ testimony. (3) Memory: A child must have memory sufficient to retain an independent recollection of the observations. (4) Communication: a child must have the capacity to communicate or translate into words the memory of such observations and understand simple questions about the incident” (Whitcomb 1997, 56).

Each of these dimensions are not only ambiguous in nature, they also do not account or refute any of the problems stated prior. The legal system is trying too hard to allow for testimony from young children by creating these guidelines that require only minimal understanding (if any at all) of the dimensions. The first dimension, truthfulness, requires an administrator (i.e. judge, council) to ask simple questions to the child to ascertain his/her truthfulness. Questions like, “Do you know what it is to tell a lie?” or “If I said that it was Christmas today, would that be a lie or the truth?”.

The findings of a study to test the validity of these questions as to their predictability of children’s truthfulness were not surprising; the researchers found only limited support for the belief that correct answers to questions like these will predict accuracy during memory tests (Whitcomb 1997). This relationship held true for five and six-year-old children but not for younger children.

With the concept of memory, the courts have designed many different types of tests to ascertain sufficient memory in children. For example, there is the “prong” test, which requires the judge to pose any reasonable question to the child requested by council to determine if the child is capable of understanding the facts in question and relating them accurately. This is required in some states such as Idaho, according to the state law (Idaho Code 1985). However, these simple questions can neglect to investigate fully into the validity of the child’s memory itself.

Communication allows for many problems to be introduced. Many states, like Florida, have state laws that aid a child in communication. A Florida state law states that “Children who cannot be reasonably understood or who cannot understand questioning may be aided by an interpreter” (Florida Statutes Annotated 1985, 90.606). An interpreter can be guilty of fallibility (Ceci et al. 2000). Sometimes the use of tools such as anatomically correct dolls is needed, which has created much controversy (Whitcomb 1997). Anatomically correct dolls are scrutinized since the dolls are used as diagnostic tools to determine sexual abuse, the very nature of the dolls are suggestive. The details of the dolls may in many cases cause the child to “play” with the genitalia, which infers sexual touching and abuse, all because the child is curious of the new “toy” (Ceci and Bruck 1995).

It seems clear that the standards required at present are not enough to deem a child competent. Perhaps, in some cases, they may suffice to administer justice by allowing truthful testimony, though certainly not in others. Therefore, stricter guidelines should be created and universally enforced because it is not right to allow for one state to have more lenient rules that would not account for the foresaid problems, while the other states do not account for the problems.

It is interesting to note that just because a child cannot testify in court, because s/he is either unavailable or declared incompetent, does not mean that the child’s statements cannot be admitted as evidence. This issue is known as a statutory exception to hearsay, or the admittance of out-of-court statements made by a child/victim. According to the National Institute of Justice, there are only a few narrow exceptions for admitting hearsay statements, and many of them carry with them serious questions of validity. It is clear that sometimes these exceptions can in fact deny justice to a not-guilty defendant.

The first hearsay exception is a “statement made for the purpose of medical diagnosis or treatment” (Whitcomb 1997, 86). According to this exception, statements made relating to bodily feelings or conditions are admissible to prove their truth. There is an underlying assumption that people do not fabricate such information because they believe the effectiveness of treatment will rely largely on the accuracy of the information they provide. This exception has been stretched to accommodate problems that arise in sexual abuse cases of children. In Wisconsin v. Nelson the court permitted a psychologist to testify about a three year-old child’s statements that identified the defendant (138 Wis. 2d 418, 406 NW. 2d 385 [1987]).

This assumed that the child knew that the person she told was going to help her, and if the assumption was wrong then the statements are inadmissible. There were also assumptions as to the intentions of the psychologist; the psychologist would have to prove that obtaining the statements was for the basis of a diagnosis. This appears to be a cheap trick invented by prosecutors to place fact where there may be none, a way of sneaking around the legal system.

Another category of exception is “excited utterances,” which are most applicable to child sexual abuse cases (Whitcomb 1997, 87). This exception has been relaxed by the courts to allow for more exceptions to be made for children, which once again crosses the line of validity, by using assumptions as facts. Many courts have even allowed in, as excited utterances, statements made in response to limited questioning. In Commonwealth v. Fuller, statements made by a child to her mother in response to questions on the way to the doctor’s were found admissible (22 Mass. App. Ct. 152, 491 NE. 2d [1986]). In Iowa v. Mateer, statements made in response to questioning by a police officer were admitted because they were “impulsive”, rather than “reflective” (383 NW. 2d 533 [1986]). And, in Ohio v. Wagner, the court allowed the child’s demonstration with anatomically correct dolls, conducted for an investigator (30 Ohio Ap. 3d 261, 508 NE. 2d 164 [1986]).

Many critics of this exception have argued that cases like those cited above stretch the excited utterances hearsay exception beyond reasonable limits. Unless the courts are willing to be very liberal in applying this exception to children’s out of court statements, there are still many cases in which the exception will not apply (Whitcomb 1997), though, there is one more exception that warrants examination.

This “residual hearsay exception” creates a safety net, giving the cases that are not covered by the first two exceptions a chance to be admissible in court. All the out-of-court statement needs is an “equivalent circumstantial guarantee of trustworthiness” (Whitcomb 1997, 88). Yet this residual exception has its limitations in child sexual abuse cases. Many states will not even adopt it, because they fear it is too broad and because it lacks specific guidelines, and therefore could be applied inappropriately.

Over the years there have been many cases in which child witnesses that the court allowed, at least at some stage, have caused problems that tainted the public’s confidence in the legal system to disperse justice. There have been a few celebrated cases over the last few decades that received huge media attention and that serve as proof that children are not perfect. One of the largest in history was the New Jersey v. Michaels (625 A 2d 13 [1994]). In this case Kelly Michaels was accused of sexually abusing children at a preschool facility she had previously worked at (Ceci and Bruck 1995). She was sentenced to forty-seven years in prison after being found guilty of 115 counts of sexual abuse of twenty three-to-five year old children. Michaels served five years in prison before her conviction was overturned in an appellate court, after the children’s testimony was found to be invalid.

Another famous case was North Carolina v. Robert Fulton Kelly, Jr. (456 SE. 2d 861 [1995]). Robert Fulton was sentenced to twelve consecutive life sentences after a jury found him guilty of ninety-nine counts of sexual abuse of children who had attended a daycare center he worked at. In 1995, Fulton was released after the Court of Appeals of North Carolina unanimously overturned the decision for problems with children’s testimony. These cases are scars on our legal system and taint the confidence of the public. It is interesting to note that these cases not only had serious implications toward the defendant, but each was found guilty of a huge number of sexual abuse charges; how can a jury be so easily convinced of such acts? The answer is due to the problems discussed in this paper.

The issue of children as witnesses is a very touchy subject due to the fact that these cases deal with unspeakable crimes. To victimize a child is to hurt the very fabric of the future and is something that must never go unpunished. However, it is necessary for U.S. society to have a strong and dependable legal system, which is fair and just for both sides of a crime. Without this, the legal system will further the victimization of the child, the defendant, and even society as a whole. This is why I must state clearly, again, that the current legal system is ill equipped to handle the cases in which children are witnesses, and have and will continue to dispense justice in an unfair and unethical manner. It has been proven to have happened before, as we can clearly see in the cases of Michaels and Fulton, one could only guess how many more are still in jail that are innocent, and it must also be clear that a verdict of not-guilty does not necessarily mean innocent.

Ceci, Stephen J. and Maggie Bruck. (1995). Jeopardy in the Courtroom: a Scientific Analysis of Children’s Testimony. Washington, D.C.: American Psychological Association.

Ceci, Stephen J., et al. (2000). Beware of Fallibility of Memory in Children’s Testimony. Brown University Child & Adolescent Behavior Letter. 16 (5).

Commonwealth v. Fuller, 22 Mass. App. Ct. 152, 491 NE. 2d 1083 (1986).

Cowan, Nelson. (1997). The Development of Memory in Childhood. University of Missouri: Psychology Press.

Dziech, Billie and Charles Schudson. (1991). On Trial, America’s Courts and Their Treatment of Sexually Abused Children. Boston: Beacon Press.

Florida Statutes Annotated, 90.606 (1985).

Gopnik, A. , et al. (1999). The Scientist in the Crib: Minds, Brains, and How Children Learn. New York: William Morrow.

Idaho Code 9.202 (1985).

Iowa v. Mateer, 383 NW. 2d 533 (1986).

McGough, L. (1994). Child Witnesses: Fragile Voices in the American Legal System. New Haven: Yale University Press.

Myers, John. (1998). Legal Issues in Child Abuse and Neglect Practice. London: Sage Publications.

New Jersey v. Michaels, 625 A 2d 13 (1994).

North Carolina v. Robert Fulton Kelly, Jr, 456 SE. 2d 861 (1995).

Ohio v. Wagner, 30 Ohio Ap. 3d 261, 508 NE. 2d 164 (1986).

Wheeler v. United States, 159 U.S. 523 (1895).

Whitcomb, Debra. (1997). When the Victim Is a Child. Washington D.C.: National Institute of Justice.

Wisconsin v. Nelson, 138 Wis. 2d 418, 406 NW. 2d 385 (1987), cert. denied, 110 S. Ct. 835 (1990).