Each year hundreds of thousands of children in North America become entangled in the legal system. Some are involved in custody and visitation disputes in family courts, others are summoned to appear in civil or juvenile justice proceedings, and still others become involved in criminal cases. Often these children testify about the alleged actions of a parent, teacher, baby-sitter, relative, or neighbor. And when this happens, the case is often decided on the basis of the relative credibility of the child versus the defendant. Regardless of whether such testimony is made in forensic interviews, during preliminary hearings, or at trial, it may result in life altering decisions for all involved. Therefore, it is imperative that we better understand the factors, both beneficial and baleful, that influence children's testimony.

In this book, we attempt to describe the complexity of evaluating the accuracy of children's statements, and in so doing we attempt to alert professionals as well as caretakers of children to the need for both common and uncommon sense when interpreting such testimony. To accomplish this goal, we have distilled from the vast corpus of scientific research that part which is most relevant for evaluating and understanding children's statements that are made in the legal arena. Against this scientific backdrop, we shall describe seven actual cases involving child witnesses; we examine some of the investigative methods used in these cases and analyze the factors that may have influenced the accuracy of children's testimony. Some of these cases are used to illustrate the potential for error and misinterpretation when scientific knowledge and common sense are banished from the forensic arena.

At the outset, we wish to acknowledge some of the biases in this book. These biases become immediately evident in our selection of the seven actual cases presented in chapter 2. In six of these cases, there are reasons to be skeptical about the reliability of the children's reports. Why do we focus disproportionately on cases where children's testimony is questionable? Is it because we believe that in the vast majority of cases in which children testify, their testimony is tainted? Our answer to this question is a resounding no. We acknowledge the many positive dimensions of children's testimony, their ingenuousness and propensity to speak forthrightly, and their ability to accurately recall distant events. Researchers and parents are aware of such obvious strengths. In this book, however, we have chosen to emphasize the not-so-obvious negative dimensions of children's testimony as a means of increasing the awareness of all actors in the civil and criminal justice systems (attorneys, judges, law guardians, social workers, psychologists, psychiatrists, law enforcement officers) about factors that influence the veracity, durability, and reliability of children's testimony. So, although we do describe children's strengths, we focus disproportionately on their weaknesses, because it is our contention that the latter are less well understood by experts and non experts, whereas excellent texts already exist that describe children's strengths (see Myers, 1987a, 1987b for a compendium and analysis of cases in which children's reliability is evident).

We think it is valuable to emphasize that although there are far more documented cases that highlight the weaknesses of children's memories rather than their strengths, the latter type of cases do exist. We believe that this imbalance reflects the fact that much of the time children's statements are reliable and credible and in such situations the cases are quickly settled, obviating the need for further investigatory procedures and, hence, for documenting the child's testimony. In contrast, the details of the most contentious cases, those that cast doubt on the accuracy of children's statements, are often brought to public attention because these cases are covered by journalists and legal scholars. When these cases are appealed, transcripts of the original trials are often made available to researchers for scrutiny. So to repeat, although the literature is skewed toward case studies that entail weaknesses, these are probably not the most common types of cases.

Not only is our discussion slanted toward the negative dimensions of children's testimonies, but it also is slanted toward the dissection of cases that involve allegations of sexual abuse, even though sexual abuse cases represent only a minority of the cases that involve child witnesses (neglect hearings and custody disputes are both more frequent). Furthermore, most of the actual sexual abuse cases that we describe are day-care cases in which some of the children make allegations of ritualistic abuse at the hands of their caregivers. Yet these types of cases represent only a small subset of the actual sexual abuse cases. The reader may well wonder why have we sampled our case studies along these lines. We have done so for several reasons. First, the single most important context for children who testify in criminal trials is that of sexual abuse; we estimated elsewhere that upwards of 13,000 children testify each year in sexual abuse cases in the United States (Ceci & Bruck, 1993a), and many thousands more give depositions and unswom statements to law enforcement officials and social workers. If we add to these the large number of civil and family court cases that also include allegations of sexual impropriety involving a child, then the absolute numbers swell considerably. Second, our discussion often centers on day-care cases because, although these may represent only a small proportion of sexual abuse complaints, in absolute numbers they involve a very large number of children (for example, in the infamous McMartin case, 369 children made disclosures of sexual abuse [Sauer, 1993]), and in other day-care cases the number of allegations is also quite large. Also, because of their high level of visibility, daycare cases are often more extensively documented than non-day-care cases, providing researchers with more reliable materials than the less visible cases.

We also focus on the sexual abuse in day-care settings because these present the greatest challenge to the application of social science research in the courtroom. That is, although there are some obvious parallels between laboratory studies of children's memories of unusual or surprising events (e.g., witnessing a staged argument) and the ability of child witnesses to accurately recall the details of a witnessed theft or accident, it is not clear how the results of these studies assist in understanding children's allegations of sexual abuse. Indeed, one may ask if this scientific literature has any relevance to such cases. The answer is yes, otherwise we would not have devoted two years of our professional lives to writing this book. Throughout these pages we will show how this challenge has been met by social scientists, and will describe when science can and cannot assist in understanding real-world problems.

Finally, all of the arguments we make for and against the reliability of children's testimony in sexual abuse cases apply equally to non-sexual abuse contexts; to make this point, we include among our seven case studies a murder case involving a child witness. Although the unique aspects of sexual victimization can result in differences in children's demeanor and behavior, the underlying mechanisms governing their reports are the same regardless of whether they are couched in terms of acrimonious custody disputes, physical abuse, domestic violence, or sexual abuse. Thus, our focus on sexual abuse cases serves as a window into the more general issues regarding children's testimonial accuracy.

On the most general level, this book is intended for both the nonprofessional and the professional reader who, like the authors, are at times puzzled and disturbed by some children's allegations, wanting to delve beneath them to better understand their source and accuracy. Specifically, this book was written for three audiences. First, it is crafted for the professional who deals with child witnesses; this audience includes, but is not limited to, mental health professionals who assess and/or treat children suspected of sexual abuse, forensic investigators who interview child witnesses, attorneys, and judges. Second, we hope this book will be of interest to our social science colleagues. Although some (but by no means all) of the arguments and data that we present here have appeared in scholarly journals in the last two years, this book provides us with the opportunity to describe many new studies that are not scheduled to appear in scientific journals for another year, and also to discuss in detail the degree to which the scientific research guides our interpretation of life outside of the laboratory. As researchers know all too well, we are prevented from fully exploiting this exercise in the scientific literature because of space limitations imposed by journal editors. Third, this book is designed for the nonprofessional who, like many North Americans, has become captivated by the cases of cultural icons like Michael Jackson, Cardinal Bemadin, Roseanne Barr, and Woody Allen who have become ensnarled in a web of accusations involving childhood sexual abuse.

Our goal in making the social science literature accessible to the non specialist was motivated by a set of overlapping forces in our professional lives. As a result of many years of conducting studies in this field and of actively reviewing and synthesizing the scientific literature, we have been overwhelmed in the last few years by requests from the mental health and legal communities for our services as consultants and as expert witnesses.

For example, in one year alone we estimated that we jointly received over 600 requests to act as expert witnesses or consultants in cases involving child witnesses. Despite these requests, we rarely agree to be expert witnesses or consultants (between us, we have had only five experiences as an expert witness in a child sex abuse case, and we have declined personal fees in these instances. We have also testified for both sides). Our reason for declining the numerous invitations to enter court as expert witnesses is because we believe that it is easier for us to educate juries, attorneys, and policy makers in our writings than under cross-examination in an adversarial system more geared toward scoring clever debate points than arriving at the truth. This book is our attempt to fulfill this educational role.

This mission has become particularly important in light of two recent court decisions that could have enormous implications for cases involving the child witness. The first decision came down from the Supreme Court of New Jersey in the case of State v. Michaels (1994) (which is described in chapter 2 and referred to throughout the book). In Michaels, the court ruled that a defendant may request a pretrial "taint hearing" to challenge the adequacy of investigative interviews with child witnesses. As such, the ruling has the potential of excluding child witnesses if they are exposed to highly suggestive interview procedures on the grounds that such procedures could taint their memory and testimony. Regardless of the ultimate wisdom of this decision, it is a warning to those who interview children that if a child is not properly interviewed, his testimony may be excluded regardless of its veracity. This book is intended to alert professionals who deal with children to the possible contaminating factors that may negatively influence the latter's testimony, and to the importance of eliminating these potentially damaging techniques from their practices. Failure to do so may result in a child's testimony being excluded from the courtroom because of interviewer blunders.

The second decision was handed down by the Supreme Court of the United States in the case of Daubert v. Merrell Dow Pharmaceuticals (1993) (a case that we discuss in chapter 17). The ultimate thrust of this decision, according to some legal scholars, will be to open the doors to qualifying expert witnesses regardless of their professional reputation, expertise, or scientific knowledge. We fear that this might make a bad situation even worse in this field where advocates on both sides of the bench can be found "shaping" the research to conform to the interests of the side that hired them. At its worst, this is accomplished with a veneer of professionalism, but in a lopsided, partisan manner. The Daubert decision may result in the admission of even more of the type of testimony that provides a limited, and at times inaccurate, view of the reliability and suggestibility of children's reports. We hope that the material covered in this book will become a part of the working knowledge of experts who testify in future cases.

From: Jeopardy in the Courtroom-A Scientific Analysis of Children's Testimony by Stephen J. Cecil and Maggie Bruck, American Psychological Association, 1995.

home | join the discussion | forum | bob kelly's trial | readings | summary | profiles of the defendants | tapes & transcripts | press
explore FRONTLINE | wgbh | pbs online

New Content Copyright © 1998 PBS and WGBH/Frontline pbs



Solitary NationApril 22nd