The Interaction Between Children's Developmental Capabilities and the Courtroom Environment: The Impact on Testimonial Competency

6. Developing a Model to Explain Testimonial Competency

There are a multitude of factors that interact to influence the testimonial capabilities of children. The flowchart in Figure 1 outlines these factors and provides a theoretical model to explain children's performances on the witness stand. Unfortunately many of these factors are not routinely considered in the courtroom when an evaluation of child witness credibility takes place. There is often the assumption that because children's evidence is qualitatively different than that of adults, children are not as reliable or as accurate. It can be said however, that few accommodations are made to court procedures to facilitate the giving of evidence by children.

A recent finding in the developmental literature is that there are individual differences in children with respect to their abilities and temperament. Although there are definitely age related trends, assuming that all children of a certain age will have the exact same abilities is dangerous. For example, Goodman et al. (1998), in a very comprehensive review of the literature of children's eyewitness testimony, have found that children's individual temperaments and their physiological reactivity impact on their stress level during an event and on their memory performance later on.

Age and stage of cognitive development in children at the time of an event are a given, and they too have been shown to effect the amount and type of experiential details that are encoded into memory. Younger children typically remember fewer details than older children about an event. This is likely due to two factors: they understand less of what is going on and thereby encode less information and their memory retrieval processes are less well developed, making it more difficult for them to access the memories that they do have. What is encouraging however, are the research findings, which indicate that what they do remember can be highly accurate. The key of course is to get them to reproduce their memories verbally.

Children's social maturity and their emotional stage of development have also been shown to affect their interpretation of an event, in particular its personal meaning. Knowledge of the world and personal life experiences are more limited in children, making it difficult for them to analyze social situations and adult behavior. In the case of sexual abuse for example, young children are not always cognizant of the fact that they have been sexually abused. Their lack of prior sexual knowledge and their social naivety results in difficulty interpreting an abuser's sexually motivated behaviors. Because they do not appreciate the significance of the more subtle acts, they are easy targets for sexual grooming. In investigative interviews when young children describe sexual victimization experiences, they are hindered not only by their lack of sexual knowledge but also by their general social comprehension.

It is clear that when children are asked to remember past events, a number of factors will either facilitate or inhibit their ability to retrieve their memories. Of great importance is the amount of elapsed time between the event itself and subsequent questioning. Children's memories, like that of adults fade over time. All available research suggests that younger children's memories are more affected by the passage of time than older children's memories. The longer the time period between the event and the questions put to them, the more difficult it will be for children to retrieve their memories. In cases where the discovery of past victimization has just come to light and young children are questioned about events that have happened years earlier, the potential to forget increases. This forgetting is particularly true for peripheral details. This of course speaks to the need to question children as soon as possible after an event.

The nature of the event to be remembered is another factor that has been shown to impact on the children's abilities to encode and later retrieve the memory. Is the event particularly salient? Was the event personally experienced or witnessed? Is the event an isolated incident or has it occurred numerous times? Is it a traumatic event that causes great emotional distress when remembered? Research on traumatic memories has produced opposing views with respect to the relationship between stress and memory. What appears to be true is that too much traumatic stress can impede the encoding process by limiting what children attend to and perceive. Too much stress can also impede the retrieval process by making it difficult to access the memory.

Once children have disclosed information in an investigative interview, they unfortunately may wait a long time before they repeat their statements in a court of law. Even in the best scenario, court cases can take months, if not years to complete and children can find themselves talking about events in court that occurred years earlier. Unfortunately, courts still expect children to provide not only central but peripheral details as well, and are alarmed if their evidence contains less detail than their initial statement.

The ability to recollect and report on a memory involves retrieving the encoded memory trace, and communicating the memory trace verbally. Language skills are therefore of paramount importance at this junction. Children's receptive abilities affect whether they understand the questions put to them. Their expressive abilities determine how they phrase their responses. Lacking sufficient vocabulary, verbal comprehension and rules of conversational speech makes it difficult for children to understand the questions and to describe what has transpired.

For these reasons, the nature of the investigative interview is so important, more specifically the type and complexity of the questions put to children and the interviewer's style. Of equal importance however, is the nature of the questions put to children on the witness stand. Children's testimonial performance will be negatively affected if developmentally inappropriate questions are put to them during their examination-in-chief or cross-examination.

Unfortunately, research findings in the area of children's susceptibility to inappropriate questioning is brought up in court only as it relates to poorly conducted investigative interviews, or post event information offered by concerned adults. There is a tendency to ignore the fact that the research on children's cognitive and communicative abilities and in particular their susceptibility to suggestion, applies equally to what transpires in the courtroom. A child witness's experience on the stand is certainly as critical as the forensic interviews and post event life circumstances that have preceded the court hearing.

Research strongly suggests that when children are fearful, when they feel intimidated and are made anxious by an unsupportive environment, when they lack the necessary knowledge to interact appropriately in an a setting, they perform less well. Court preparation of child witnesses can address some of these concerns, because children who are better prepared for their role as witnesses will do better on the stand. Testimonial aids may be of assistance in alleviating the stress of facing the accused in the courtroom. However no amount of preparation or accommodations can make a difference if the court allows a brutally aggressive crossexamination. Most children are simply not emotionally able to withstand that level of social pressure. When this happens, the difference between children's testimonial competency and their actual testimonial performance widens and children fail to perform.

It is very important to make a distinction between testimonial competency and testimonial performance. Performance refers to knowledge and abilities that are expressed under ideal circumstances (Woolard et al., 1996). Competency refers to capacity. Unfortunately, the courtroom is not an ideal circumstance. When we speak of the potential of children to be witnesses, we must not ignore the fact that there is always an interaction between the courtroom environment and their performance.

In summary, when it comes to testimonial competency in children, the research field on children's competencies is brimming with polarization, not integration (Saywitz & Camparo, 1998) and recommendations for professionals are often contradictory. There have been some very scathing opinions of children's testimonial abilities.

A review of the research on children's abilities, in particular in the area of suggestibility suggests, that often times the strengths children possess are ignored and the weaknesses emphasized. If anything, the research findings reviewed in this paper suggest that children have much to offer that is forensically relevant, and their involvement in the criminal justice system as complainants and potential witnesses is not misguided. It is rather the approaches employed to obtain information from children that are at fault, based on a lack of understanding of children's abilities and age inappropriate expectations. The model offered in Figure 1 is a way of demonstrating all the different factors that impact on children's testimonial capacities and performance.

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