Critically discuss the psychological evidence that helps to explain the use of evidence given in court by children under the age of 11, (usually described as ‘child witnesses’) In the past 20 years the number of psychological studies on child witnesses and the competency of them being interviewed as well as the evidence being given by them has grown from very few quality studies to several thousand. Issues such as suggestibility, the effects of individual differences and the effects of long delays on their recall have been brought up and discussed in these studies. (Memon, Vrij & Bull, 2006) Traditionally, most Criminal Justice Systems have been reluctant to accept the testimony of young children, believing that they make less reliable witnesses than adults do. Although in recent years the balance has shifted and the evidence of children is now much more likely to be accepted. (Ainsworth, 1998) All witnesses defined as a child at the date of the trial, and irrespective of the nature of the offence, are automatically classified as vulnerable and this eligible for a range of protective special measures to enable them to give a testimony in court. There special measures include in-court screens, live TV link, removal of wigs and gowns and provision of any necessary aids to communication. (Raitt, 2007)

The issue of children’s competency to testify in court has changed from the presumption that no minor is competent to the belief that all children are competent, which also means that a child can be compelled to testify whether voluntarily or not. Donaldson et al (1983, cited in Spencer & Flin, 1993) believed that much of the research carried out in the first half of the century seemed to have been curiously preoccupied with children’s incapacities. This traditional assumption of childhood incompetence may have stemmed from a historical tendency to regard infancy and childhood as a general period of weakness and incapacity, and to treat children almost as if they were a different kind of being. (Spencer & Flin, 1993) Hearsay and gut feelings were what most of the prejudice against children was based on, rather than careful research. Whipple (1911, cited in Ainsworth, 1998) cited some evidence in support of some of these prejudices, reporting on the writing of two doctors who believed that children were the most dangerous of all witnesses and should wherever possible, be banned from courts. Although in contrast, Gross (1910) believed that child witnesses, when healthy, could be as good as adults, especially when recalling simple events. He believed that in some cases children could even be better witnesses than adults as they didn’t apportion blame and can control their emotions.

There have been many objections as to why children should not give evidence, some of which have been, for example, the unreliability of children’s memories, the fact that children can be highly suggestible and also that they might have difficulty distinguishing fact from fantasy. These objections can again be broken down into separate issues, for example with the unreliability of children’s memories, concerns about them having problems with free recall, the responses to the questions and also the effects of long delays have been brought up.

Spencer and Flin, (1993) talk about how that research has shown clearly that the most noticeable age difference in witnesses has been found when the memory test is free recall. Meaning that when the subject was asked to recount everything that they saw, they could do so without prompting. With younger children, they typically reported less information than older children and adults, but more significantly, the information they did recall was more accurate. (Davies et al, 1989, cited in Spencer & Flin, 1993) This therefore appears to show that although there are age differences in the quantity of freely recalled details, there doesn’t appear to be much difference with younger children and adults in the quality or accuracy of the details.

With the response to questions, in a forensic context, free recall and very general questions are of limited use as in order to elicit the maximum amount of information, more specific questions are required. With younger children, in this type of interview, they do tend to respond less accurately than older children and adults although some studies have suggested that when child witnesses make errors, the are more frequently errors of leaving certain details out, rather than reporting events that did not occur. (Spencer & Flin, 1993)

A big problem faced by children when giving evidence is that they often have to wait many months between witnessing the crime and being asked to recall the details in court. Both adults and children’s memories are highly sensitive to the passage of time. Salmon and Pipe (1997) completed a study using a medical examination of a large teddy by a doctor and found that young children’s recall of the event was reduced by the passage of time between the event and the interview, which was 3 days versus a year. Overall the recall accuracy of the 6 year olds was not affected by the 1 year time lag, but that of the 4 year olds dropped from 87 percent to 69 percent, being a statistically significant effect. (Memon et al, 2006) Also Fivush and Schwarz Mueller (1998, cited in Memon, Vrij & Bull, 2006) found that 100 years of research has found that adults have difficulty recalling events that occurred in the first few years of life, but research also demonstrated that 2-3 year old children are able to recall verbally accurate details of their past. Studies done by Goodman et al (1987, cited in Spencer & Flin, 1993) show that three and six year olds have a surprisingly good memory for events and for strangers after several weeks, although three and four year olds remembered less the following day. All three research studies here have shown that although children can remember some details after a period of time, the amount does diminish the longer the period is.

Lawyers seem to believe that children are particularly suggestible as witnesses, with the sense that their evidence can easily become distorted by a leading style of questions. In a set of experiments completed by an American psychologist, Gail Goodman (cited in Spencer & Flin, 1993) she assessed children’s suggestibility in situations that were both personally significant and stressful. When the children, who were aged three to eight years old, were a year later asked questions including some suggestive ones, their results showed that even following the delays of a year, the children made more errors of omission than of making things up.

Leichtman and Ceci (1995) completed one of the first studies noting effects on suggestions on free recall performance. They put together a study, using children aged three to six, and examined the effects of repeated interviews with different degrees and types of suggestive influences. The children were visited by a stranger in nursery, then some of the children were interviewed with suggestive questions about the event once a week for the following four weeks. The fifth interview was experienced by all the children and was conducted ten weeks after the event by a new interviewer, they were asked to give a free report then asked questions. The study shower that an event that is inaccurately reported in free recall will continue to be inaccurately reported when probed with questions. Furthermore, the children in this study tended to embellish their statements with more and more made up details after a series of interviews. (Memon & Wright, 2000 cited in McGuire, Mason & O’Kane, 2000) Dent and Stephenson (1979) discovered that 10 and 11 year old children shown a short, film of a theft and chase of a robber were more accurate, although less complete, in free recall than in answers given to general and specific questions. Furthermore, young children displayed very inaccurate recollections of the appearance of people relative to their more satisfactory descriptions of the course of events. (Wells & Loftus, 1984)

On the positive side of children being adequate witnesses and being able to give good evidence, laboratory experiments have shown that it has been relatively easy to demonstrate age differences in memory capacity, but these experiments have also shown that children’s memories can be very powerful. An example of this could be that if a child has good knowledge of a subject, e.g. football, then they can remember more information than adults in a standard test. (Chi & Ceci, 1986, cited in Spencer & Flin, 1990) Davies & Robertson, 1993, cited in Spencer & Flin, 1993) linked this with eye witness testimony’s by saying that if a child has a good knowledge of cars then they would be more likely to give a better vehicle description than the average adult.

With memory performance, age has been suggested as being the most important variable to affect memory performance generally (West, Crook & Baron, 1992 cited in Ainsworth, 1998) Much of the suspicion of child witnesses has come from a belief that a child’s memory in inevitably second rate to adults. However children’s memory ability does improve with age and younger children do tend to provide less information than older children and adults (Clifford, 1993, cited in Ainsworth, 1998) Much more recent research though has suggested that what is provided is not necessarily inaccurate. Fivush (1993, cited in Ainsworth, 1998) concluded from reviewing research, that even pre-school children can provide an accurate account of an event which they themselves have experienced, and are capable of retaining information over a period of time. Fivush also made the point that whilst younger children tend to provide less detail spontaneously, they can usually provide more information when cues or prompts are used by the interviewer. It has also been suggested that in some cases children remember different aspects of an event than adults or older children. (Aimsworth, 1998) Despite the publicity given to false accusations, the limited empirical evidence there is, suggests that children rarely make up events of a serious magnitude. Jones (1985 cited in Wrightsman, Nietzel & Fortune, 1998) investigated 576 sexual abuse cases reported to the authorities in Denver and found that out of these cases only 8% were concluded to be ficticious. Other research by Haugard, Reppucci, Laird & Nauful, 1991, cited in Wrightsman et al, 1998) confirmed that most children as young as four, know that telling something that is untrue, even if prompted to do so by a parent, is a lie.

Not only is there the question about the accuracy of children as witnesses though, also an important issue raised is with them giving evidence, and it possibly being a threat to their well-being. Spencer Eth (quoted by Goleman, 1984, cited in Wrightsman, Nieztel & Fortune, 1998) believed “the law is more concerned with protecting the legal rights of defendants than with protecting the mental state of children who testify.”

Since 1989, there have been big changes in the rules and procedures for actually hearing a child’s evidence. This restructuring resulted from the inescapable fact that some child witnesses were being exposed to an unjustifiable degree of stress from our legal system. Therefore also bringing with it the problem of their evidence being incomplete, incoherent or even totally worthless due to being so traumatised by the events. In a study by Goodman et al (1992, cited in Spencer & Flin, 1993) they found that out of forty children observed during preliminary hearings, twenty shoed some distress or appeared to be very distressed. Both experts and parents of child witnesses have identified the months of waiting and the resulting uneasiness as a significant cause of this stress. (Spencer & Flin, 1993)

Even though the child may be stressed, studies have shown that children who have been prepared for courtroom testimony are generally more comfortable, and appear to be more confident, composed and credible. Saywitz and Snyder (1993, cited in Memon et al, 2006) described three approaches to preparation designed to improved accuracy, the first being giving children practice in organising elements of an event into forensically relevant information and reporting as much detail as possible. The second was to facilitate children’s communication with videotaped vignettes which illustrate the negative consequences of trying to ask questions not fully understood by the children. The third intervention was to warn children about misleading questions by presenting them with a story about a child who went along with suggestions of an adult, and highlighting the negative consequences.

An important question in thinking about children benefiting much more than others from procedures designed by psychologists to assist them, is whether this variability relates to any known psychological individual differences among children. (Bruck & Ceci, 1999, cited in Memon et al, 2006) As yet, not many studies have been published on this issue, although Vrij and Bush, (2000, cited in Memon et al, 2006) found a relationship with self esteem and Eisen et al (1998, cited in Memon et al, 2006) with some cognitive measures.

Although there have been many psychological studies into children’s evidence and if it should be allowed in court, there is still no simple test to show if they are lying or telling the truth and also no widely accepted criteria to differentiate true from false memory. In the past few years there have been developments with children’s evidence and researchers have began to realise that the question of suggestibility in children is more complicated than first thought. Also over time there has been a big issue over stress in children who have to give evidence and how this can be, if at all, made easier for them. Within the criminal proceedings, the live video link, screens and even the willingness of the English courts to listen to the evidence of little children have been advances which up until around twenty years ago, seemed impossible. Hopefully however, there are still many more advances that can be made to help those children who are unfortunate enough to find themselves, one way or another, involved within the court proceedings.

References:

Aimsworth, P. (1998) Psychology, Law and Eyewitness Testimony 1st ed. John Wiley and Sons.

Goodman, G.S and Melinder, A (2007) “Child witness research and forensic interviews of young children: a review.” Legal and Criminological Psychology Vol.12, pp. 1-19

McGuire, J. Mason, T. and O’Kane, A. (2000) Behaviour, Crime and Legal Processes 1st ed. John Wiley and Sons.

Memon, A. Vrij, A. and Bull, R. (2006) Psychology and Law. 2nd ed. John Wiley and Sons.

Raitt, F.E. (2007) “Robust and Raring to Go? Judges Perceptions of Child Witnesses.” Journal of Law and Society. Vol.34, pp. 465-88

Spencer, J.R. and Flin, R. (1993) The Evidence of Children. 2nd ed. Blackstone Press Limited.

Wells, G.L and Loftus, E.F (1984) Eyewitness Testimony, Psychological Perspectives. 1st ed. Cambridge University Press.

Wrightsman, L.S. Nietzel, M.T. and Fortune, W.H. (1998) Psychology and the Legal System. 4th ed. Brooks/Cole Publishing Company.