Child Abuse and the Law - The Child As A Competent Witness

Traditionally, judges protected juries from incompetent witnesses, which in early America were considered to include women, slaves, and children. Children in particular were believed to live in a fantasy world, and their inability to understand such terms as "oath," "testify," and "solemnly swear" denied them the right to appear in court. In 1895 the U.S. Supreme Court, in Wheeler v. United States (159 U.S. 523), established the rights of child witnesses. The court explained:

There is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. To exclude [a child] from the witness stand would sometimes result in staying the hand of justice.

As a result of this ruling, the courts formalized the Wheeler decision, requiring judges to interview all children to determine their competency. It was not until 1974 that the revised Federal Rules of Evidence abolished the competency rule so that children may testify at trial in federal courts regardless of competence.

In state courts, judges sometimes still apply the competency rule regardless of state laws that may have banned it. In the 1987 Margaret Kelly Michaels case, the judge chatted with each child witness before he or she testified, holding a red crayon and asking questions like, "If I said this was a green crayon, would I be telling the truth?"

Children Can Be Unreliable Witnesses If Subjected to Suggested Events

A study by psychologists Debra Ann Poole and D. Stephen Lindsay showed that children may not be able to distinguish fact from fiction when subjected to suggested events prior to formal interviews. Poole and Lindsay examined children's eyewitness reports after the children were given misinformation by their parents ("Children's Eyewitness Reports after Exposure to Misinformation from Parents," Journal of Experimental Psychology: Applied, vol. 7, no. 1, March 2001).

A total of 114 children ages three to eight participated, on a one-to-one basis, in four science activities with a man called "Mr. Science." Three interviews were conducted afterward. The first interview occurred right after the science activities in which an interviewer asked each child nonsuggestive questions about the activities. About three and a half months later the children's parents read them a story, in three instances, about their science experience. The story included two science activities they had experienced and two others that they had not experienced. The story also included an event in which the child experienced unpleasant touching by Mr. Science. In reality this event did not happen. The children were then interviewed. The final step in the interview consisted of a source-monitoring procedure, in which the children were reminded of their actual experiences, as well as the story, to help them distinguish fact from fiction. A final interview was conducted after another month. This time the children were not given any misinformation.

The interview conducted soon after the science activities showed that the children recalled their experiences, with the amount of events reported increasing with the age of the child. When prompted for more information, the amount of new information reported also increased with age. The reports resulting from the promptings remained accurate.

In the interview that occurred soon after the children were read the storybook with misleading suggestions, 35% (forty of the 114 children) reported fifty-eight suggested events in free recall (without prompting from the interviewer), including seventeen events relating to the unpleasant touching by Mr. Science. In the last interview a month later, with no additional misinformation given the children, 21% (twenty-four children) reported twenty-seven suggested events, including nine suggested events that involved unpleasant touching. Even when the children were prompted to provide more information about their experiences, they continued to report false events. The researchers concluded that, since children's credibility as eyewitnesses depends on their ability to distinguish their memories from other sources, interviewers will have to develop better procedures to help them do so.