Undereducated: The Judge’s Excessive License in Cases Concerning The Child Witness

1.  adequate intelligence and memory to story information;

2.  the ability to observe, recall and communicate information;

3.  the awareness of the difference between the truth and a lie;

4.  an appreciation of the meaning of an oath to tell the truth; and an understanding of the potential consequences of not telling the truth. (Bourg Carter 3)

One of the major problems associated with this test for child witnesses is their ability to conform to the adult legal standard for competency to testify. There are several problems with applying this legal standard for adults to children. The adult-designed United States court system and competency examination lacks effective legislation and accommodations that would give child witnesses the opportunity to provide accurate testimony (testimonies). Currently, children must operate within an adult legal system that gives too much individual discretion to judges who are not able to properly take into account children’s suggestibility and understand their differing perceptions of truth.

Children’s suggestibility is a major issue that influences their testimony. The lack of legally enforced developmental appropriate regulation jeopardizes children’s ability to observe, recall, and communicate information. Federal law requires that lawyers use developmentally appropriate language. However, regulations such as these are rarely effective and plague cases concerning child witnesses. Anne Graham Walker explores this in her article “Questioning Young Children: A Linguistic Case Study.” In a case study of a child’s testimony, Walker reveals that the interviewer of the child consistently used age-inappropriate vocabulary, complex syntax, and general ambiguity that were developmentally inappropriate (59). For example, one of the questions asked of a child witness in Walker’s analysis was “Do you also recall driving in a car a day or two after Doug – you found out that Doug – that something had happened to him and telling and pointing out houses as being the place where the people – or one of the people who hurt Doug – lived?” (Klemson and Ceci). Questions like these, which are complex even for the adult witness, baffle young children. Questioners that are allowed to ask leading questions such as these create a major problem as children often respond to questions literally, or attempt to answer questions that they do not fully understand (Child Law Practice 136). They rarely ask for clarification, and give responses that have different implications than they intended (Carter 335). The existence of questions such as these in numerous court transcripts reveals that federal laws urging appropriate language for the questioning of children are being largely ignored or circumvented. The lax laws in the United States that govern the type of questions that can be asked of children is ultimately left up to the judges discretion.

When a judge fails to define strict parameters, suggestibility and interviewer bias can potentially influence and ultimately invalidate a child’s testimony. The main damaging factor of a child’s testimony in relation to the prevalence of developmentally inappropriate questions concerns this issue of suggestibility. A suggestive question is defined as “one in which the interviewer, through the question itself, provides information to the child that the child has not previously mentioned and may not have known if not for the question” (Bourg Carter 22). One of the driving forces in suggestible questioning techniques is due to interviewer bias, or interviewers that hold preconceived beliefs “about the occurrence of certain events and…mold the interview to elicit from the interviewee statements that are consistent” with these preconceived beliefs (Bruck and Ceci 75). Children are highly susceptible to these bias interview questions that are not developmentally appropriate, and this suggestibility can cause their testimony to be inaccurate. A 2007 controlled study of five to nine year olds used positive reinforcement and suggestive questioning tactics against a control group to discover if questioning methods could cause children, with no knowledge of a crime, to incriminate themselves. Fifty-two percent of the children subjected to leading and subjective questioning admitted to guilty knowledge about the crime within four minutes. Those that were not subjected to suggestive questioning resulted in only ten percent false admittance of knowledge over a 36-minute period (Billings 125). When children are subjected to the right type of questioning, they are capable of giving accurate testimony. However, the drastic differentiation in self-incrimination versus accurate testimony in this study reveals the highly problematic nature of suggestive questioning.

Numerous states have attempted to remedy the problems associated with children’s suggestibility. However, there is a lack of consistency across states and many of the methods have proved futile. One area that needs to be addressed is the parameters subjected to those questioning child witnesses. While some states have attempted to remedy the accuracy of children’s testimony through competency tests and pre-trial testimony, they fail to address the other half of the interview. The investigator or lawyer subjecting the child to questioning does not have to fulfill requirements or show “competency to ask intelligent, easily understood, and unambiguous questions” (Walker 59). Furthermore, some states, in an effort to create an environment where children are more likely to provide accurate testimony, permit leading questions. An example of this is the California Evidence Code Section 767, where “the Court may, in the interest of justice, permit a leading question to be asked of a child under the age of 10 in cases involving specified sex offenses” (Ceci and Bruck 4). Laws like this are implemented by the court system because many children do not respond well to “open-ended questions that require a narrative response” (Bourg Carter 99). However, in their quest to help facilitate children provide accurate testimony, laws like these actually do the opposite. This is because children have a hard time navigating the challenging linguistics of the questioners as described above. Lawyers can use these linguistic and developmental limits to mislead the child being questioned. The only check on the attorney’s ability to use leading questions is at the discretion of each individual court (Bourg Carter 100).

Many children also suffer from anxiety and misunderstanding because of leading and suggestive questioning and as a result, the accuracy of their testimony in jeopardized. This was examined in a study of five to seven-year-old children. They were questioned about an incident with questions that were highly specific or misleading. Children that were subjected to these misleading questions had a worse memory recall when compared with the children who received questions that were simple and straightforward (Carter 335). Lawyers and investigators often use questions that are misleading or complex, and children do not always have the mental complexity to navigate or fully understand the implications of their responses, and rarely ask for clarification. If child witnesses are to be used in court proceedings, it must be ensured that they are receiving proper, developmentally appropriate questioning that maximizes their ability to accurately portray their knowledge of a crime.

When studies like these are translated to practice in the courtroom, they have dangerous implications. One example is the McMartin preschool abuse trial of the 1980s. In 1983, the mother of a young child reported that her son had been abused by Raymond Buckey, an employee of McMartin Preschool in California. Police subsequently wrote two hundred letters to the parents of children that attended the preschool encouraging them to question their children themselves, as well as send their children to two-hour interviews with criminal investigators. Ultimately, of the four hundred students that were questioned, three hundred and eighty four students confessed to being sexually abused. However, even though some jurors believed that some of the children had been subjected to sexual abuse, the interviewing techniques were so suggestive that testimony from the children was seen as largely invalid (Schreiber et al. 16). In a 2006 case study, it was found that investigators interviewing the children “introduce[ed] new suggestive information into the interview…provid[ed] praise, promises, and positive reinforcement… express[ed] disapproval, disbelief, or disagreement with children, exert[ed] conformity pressure, [and] invited children to pretend or speculate about supposed events” (Schreiber et al. 16). The jury’s inability to come to a decisive conclusion due to this ultimately led the charges to be dropped (PBS). Suggestive questioning can completely invalidate children’s witness and testimony. Even if some of the children were providing accurate testimony and did not succumb to the suggestive nature of the interviews, it becomes impossible to differentiate accurate testimony from testimony tampered through questioning because of the errors of the investigators. The main issue that can be derived from cases like the McMartin preschool case is one of suggestive testimony. Because the jury recognized this, they were unable to come to a conclusion. However, in other criminal cases it is not always recognized. If the jury believes false testimony due to suggestive questioning, it can increase the likelihood of a false conviction.

Another issue with the competency standard and developmentally appropriate questioning of a child witness is the ability to distinguish between a truth and a lie. According to Swiss developmental psychologist Jean Piaget, children under the age of six define a lie as saying naughty words and untrue statements, while eight to nine year olds define it as a “statement that departs from objective facts” and give thought to the level of seriousness of the lie. Once the child reaches 10 or 11, they start to view lies in a more adult way, “in terms of intention to deceive” (Yarmey 217). Expanding upon this, in 1983, another psychologist, Thomas Lickona developed the six stages of moral reasoning. The first stage includes children that are four and younger. Stage one children are motivated through punishments and rewards and can be easily persuaded to stray from the truth. The definition of truth, for children at this stage, is what the child believes is the most “advantageous” for them (Perry and Wrightsman 105). During the ages of five through seven, children enter stage two. In stage two, children are focused on obedience to authority. This can affect their versions of what truth is, as influenced by the child’s allegiances. In stage three, ages six through nine, children enter a realm of motivation through reciprocal benefit. Children at this stage need to be told what they will gain if they testify truthfully. In stage four (ages 9 through 12) children are motivated by the desire to please adults and be seen in a positive light. This encounters a problem when related to truth because the child will be inclined to say what they perceive as pleasing to adults. Finally, by stage five (ages twelve and above), children generally prescribe to the “adult” legal definition of truth as laid out in competency tests and guidelines. Because they are motivated by social functions, they understand their obligation to the truth, and the need to testify (Perry and Wrightsman 105-106). Psychological studies and the examination of these stages reveal that children’s definition of truth differs with age and development. The current adult-focused system fails to effectively account for them and their specific nuances. A child’s perceived level of competency, therefore, is ultimately left up to the discretion of the presiding judge who is not always well versed in a child’s developmental psychology.

The major problem in the legal system is that a child’s competency and the amount of “leading” or suggestive questioning a child witness is subjected to is largely determined by the individual discretion of a judge. “Under the Federal Rules of Evidence, Rule 614(b) judges are given broad discretion in questioning witnesses and can take an active role in developing evidence in their questioning” (Bourg Carter 99). The major problem is that judges making these decisions, and the lawyers subjecting them to cross examination, do not always receive developmentally appropriate training to deal with child witnesses. They are even given discretion on whether or not to introduce a child psychological expert into the case. When related to their competency and ability to determine the difference between a truth and a lie, a problem arises because a “child’s answers to truth/lie questions are grounds for excluding children’s sworn testimony” (Klemfuss and Ceci). This allows judges to completely throw out a case where the child is the only witness because they misunderstood a child’s capabilities and understanding of the truth. The implications of this are that guilty criminals are set free due to the incompetency of a judge. In the United States there does not currently exist a standard, developmentally appropriate competency exam that the court must follow. Instead, judges are left up to their own discretion to determine what type of questions should be asked, which leads to huge differences in developmental appropriateness between cases and judges (Cashmore and Bussy). For example, judges and interviewers “routinely ask children if they know the difference between” a truth and a lie (Bourg Carter 5). For many children, this is not a developmentally appropriate question, and their inability to answer it can lead them to be deemed incompetent. This is supported by a study where researchers found that 87.5 percent of eight-year-old children were able to define both concepts, even though four-year-olds could not (Adridge and Wood). This results in an incidence of injustice because a child’s inability to answer a developmentally inappropriate question does not mean that they do not understand the concepts of a truth and a lie.

It is important to note that “children are no more prone to lying than adults” and that the majority of children have the desire to be truthful (Perry and Wrightsman 106). Bourg Carter points out in Challenges in the Courtroom: Challenges for Lawyers and Judges that just because a child cannot give an answer to the “difference” between a truth and a lie, does not mean they do not understand the concept of each individual idea (6). To successfully determine whether a child knows the difference between a truth and a lie, and in determining other competency qualifications, the judge must take into account the developmental stage of the child and design the questions asked in accordance with it. A more developmentally appropriate question for a four-year-old child witness would be “What does it mean to tell the truth?” coupled with “What does it mean to tell a lie?” rather than a compounded question that asked the difference (Bourg Carter 5). By dividing up the complex question into two separate and direct questions, younger children become more capable of showing their competency to differentiate between a truth and a lie.

Judges must be made aware of and be able to recognize the developmental stages and capabilities of the children in the courtroom. Just as in the above example in Lickona’s moral stages, truthful testimony in stage one can be promoted through specific questions that are free of conclusions and inferences. In stage two, the judge must be certain to make sure that the child understands the judge’s authority. In stage three, the child must be taught that testifying accurately will benefit them, and they will not be harmed. In stage four, it must be made clear to the child that what the judge actually wants to hear, or what will “please” him is the accurate testimonial of the events, whether pleasant or not (Perry and Wrightsman 105). Ultimately, the problem with the truth/lie competency determination and the broader issue of the allowance of suggestive questioning is that judges are not required to understand the developmental nuances associated with children’s perceptions of truth. And yet, they are required to make competency decisions based on a child’s ability to be truthful and how much a leading question can have a suggestive affect on children. They are given only “skeletal guidelines” and there is a huge lack of verified scientific research backing up the parameters they do receive (Klemfuss and Ceci). This has severe legal implications that can result in a useful child witness being misunderstood by a judge, and therefore an entire case (if the child is the only witness) being thrown out of court. Judges making these decisions need to be trained to properly administer competency tests in developmentally appropriate ways because children in these stages can offer the truth and accurate testimony if they are questioned correctly.

Through examining the role of suggestive questioning and the truth/lie competency test requirement of child witnesses, the judge’s role becomes a prominent factor in the obtaining of accurate testimony. Judges are not under any legally binding contract to have knowledge of children’s psychological development. This indicates a large flaw in the United States legal system as it relates to child witnesses. While there are some federal laws that govern and attempt to protect child witnesses, they are underdeveloped and give too much discretion to the judge in a case. The child witness under the correct conditions is competent and willing to give truthful testimony. The judge, and any person interviewing the child, needs to be properly educated on a child’s psychological linguistic abilities and developmental status. Educated interviewers would promote an increase in the accuracy of the information attained from children’s testimony. Legislation, reform, and further empirical research is needed in the United States legal system to remedy the possible adverse effects of the license uneducated judges are given in cases concerning child witnesses.

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