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Psychologists’
Roles in
Evaluating Child Witnesses
By
Brett C. Trowbridge, Ph.D., J.D.
This
article supported by The Trowbridge Foundation
Originally
published in the American Journal of Forensic Psychology, 2003, Volume
21, Issue 3, Pages 1-41
Although different words are used, most tests of child witness competency stress
three basic concepts: perception, memory, and ability to communicate. The
ability to distinguish truth from falsehood and the capacity to carry out
the obligation to speak the truth are additional requirements. Psychologists
assist courts in helping to determine whether child witnesses are competent,
and/or whether they were competent when they made earlier out-of-court statements.
Psychologists also assist courts in determining whether children’s hearsay
statements are “reliable”, and whether there is corroboration of accusations
children make. Finally, psychologists assist courts in determining when a
child witness is unable to testify as long as that child is in view of the
defendant.
Our common-law rules of evidence were derived from a centuries-long process
of courts trying to get at the truth. The rules of evidence must allow enough
evidence to be adduced to resolve disputes, but must not allow evidence to
be heard which is likely to be unreliable or untrustworthy. Courts need rules
of evidence which help to move cases on expeditiously, but not at the cost
of lack of fundamental fairness. Our rules have not been perfected through
a scientific empirical process. As it is always difficult to know in a given
case what the truth is, so it is difficult to determine whether the rules
have allowed for the truth to be heard. The rules of evidence have been perfected
in a gradual evolutionary manner, in response to challenges presented by individual
cases. Our rules of evidence have been primarily derived from cases involving
adults, as child witnesses are relatively rare in court.
One
rule is that only competent witnesses may testify at all. Competent witnesses
are those who are thought to be likely to tell the truth. In various cultures
certain classes of individuals were thought to be less likely to tell the
truth, and thus were barred from testifying as witnesses. For example, under
Roman law, family ties were thought to be a strong incentive to perjury, so
parties, spouses, and children were precluded from testifying. English common law disqualified infants, witnesses with pecuniary
interest in the outcome of a case, and the spouse of a party. Those convicted of a felony or those who were mentally deranged
were at times also precluded from testifying, or those who were not the majority
race were deemed unfit to testify. Atheists were sometimes forbidden to testify
under the theory that swearing before God to tell the truth would not ensure
truth telling among non-believers.
The
requirement that trial witnesses must testify only under oath is a relatively
modern one. In seventeenth century England most adult witnesses did not testify under oath. However,
as the testimony of children was thought to be particularly suspect,
in 1779 it became English law that children could give evidence only if they
were competent to take an oath. They had to demonstrate that they “possesse
[d] a sufficient knowledge of the nature and consequence of an oath…. Admissibility
depends upon the sense and reason they entertain of the danger and impiety
of falsehood”. Most young children were precluded from testifying because of
their perceived inability in a religious sense to understand the significance
of the oath. The requirement that witnesses take an oath is applicable now
to adults as well tell as children, but most state statutes require that a
child be able to understand the meaning of an oath to tell the truth. Indeed,
in some states this is only competency standard for children. Using this “Oath Understanding” test most courts will attempt
to determine if the child appreciates the difference between a true and a
false statement, and/or if the child realizes that lying can bring on punishment
of some sort.
In the United States the Salem witch trials took place at the end of the Seventeenth
Century; they are the earliest recorded instance of children testifying in
America, and they have had long-lasting effects on our attitudes
about child witnesses. At that time children were thought to be particularly truthful
because of their innocence and naiveté, and adults believed that children’s
innocence enabled them to recognize evils that adults could not recognize. After the Salem witch trials belief in the infallibility of children’s
testimony waned, and during most of our history the testimony of children
has been disfavored.
However, due to the child witness protection movement of the1980’s, rules
excluding the testimony and hearsay of children have been relaxed, and many
courts now freely accept the live testimony and hearsay of toddlers. It was
perceived that adults who abused children sexually or physically were avoiding
conviction for their crimes because often the only witnesses to these crimes
were the child victims. Thus, rules about the testimony of children have
been liberalized in most states. Indeed, under the Federal Rules of Evidence,
there is no requirement than an inquiry must be made into a child’s competency
to be a witness regardless of the child’s age. Although there is a requirement
that every witness take an oath (Rule 603), there is no requirement that a
child be questioned about his understanding of the oath. Numerous states
have adopted the federal position. Even England has abandoned any test of child witness competency
in criminal prosecutions.
The state of Washington retains the old common-law idea that competency of
a child witness involves much more than a mere ability to determine truth
from falsehood and understanding of an oath. The witness needs to have been
able to perceive the event at the time that it happened, needs to be
able to have faithfully remembered the event until the time of trial,
and needs to be able to accurately communicate about the event in court.
This is often referred to as the “Full Inquiry” test. The “Full Inquiry”
test recognizes that children often do have problems in perceiving, correctly
remembering events, and communicating about them, especially if a considerable
period of time elapses between the event and the time of trial, during which
memory-fade or suggestibility might interfere with the truth-seeking process.
The competency test’s requirements of perception, memory, and communication
closely resemble modern psychological theories about memory, which are couched
in terms of “encoding”, “storage”, and “retrieval”.
Modern society seems to be in considerable conflict about the credibility
of children’s testimony. One side seems to believe that any statements a
child makes to a parent or a therapist, no matter how coercive or suggestive
the techniques used to elicit them, and no matter how bizarre the accusations,
should always be believed. The proponents of this side of society believe
that children do not generate false reports of sexual victimization. The
other side views such accounts from young children with skepticism, realizing
that small children are more prone to leading questions and suggestions than
are older children and adults. Proponents of this position point to studies
on interviewer bias with young children, the effects of repeated questioning
with young children, and the effects of suggestive interviews with very young
children.
Most
cases involving child witnesses are criminal cases in which children are making
accusations of physical or sexual abuse, although children may, of course,
testify in criminal matters about other issues as well. Many of the accused
are adults, but many of them are children, since when children do abuse others
their victims are almost invariably children younger than themselves. In
criminal cases the burden of proof is set very high (“beyond a reasonable
doubt”) because it is felt it is better that 10 guilty defendants go free
than that one innocent defendant be punished. In criminal cases it is very
important to ensure that children’s testimony is not admitted unless it is
competent, reliable, and corroborated to ensure against convictions based
on false allegations. Because of the burden of proof in criminal cases it
is less important to ensure against false denials of sexual abuse, cases in
which abuse occurred but children are denying it.
However, many cases involving child witnesses come up in dependency cases,
in which the standard of proof is considerably less (in Washington “clear, cogent and convincing”). In dependency cases
the choice is often between removing a child from an alleged abusive situation
or leaving the child in that situation. Thus, in dependency
cases the courts must be worried about both types of errors: finding that
abuse did occur based on false allegations, and failing to find that abuse
occurred when the allegations are actually true, which often happens because
children falsely deny abuse occurred, or because they recant earlier truthful
allegations they have made. However, because the burden of proof is still
strongly stacked against the government, in dependency cases courts must be
more concerned about false allegations than false denials.
Children also testify in civil cases, most commonly in child-custody cases,
although they occasionally testify in other types of civil cases. In these
cases the burden of proof is even lower (“preponderance of the evidence”).
In these cases the fact finder must balance both types of errors equally.
Therefore, the courts must be equally worried not only about the possibility
that the allegations are false, but also about the possibility that children’s
denials of abuse are false.
Because the focus of this paper is primarily on child witnesses as participants
in criminal and dependency cases, this paper will concern itself primarily
with the possibility of false accusations, and will concern itself less with
the possibility of false denials. It is well accepted that children are often
reluctant to reveal abuse because of their desire to protect the offender,
who is usually a family member. Children are often very reluctant to accuse
a parent of wrongdoing, and will often later recant an initial allegation
of abuse.
It
must be remembered that these burden of proof issues are only operative during
the trial phases of cases, but that all of the issues discussed in this paper
are decided at pre-trial hearings having to do with whether a child’s evidence
will be admissible at trial. Judges are supposed to decide whether evidence
is admissible without regards to what is alleged or what type of case it is.
Burden of proof issues go to whether the evidence should be deemed to be sufficient
by the fact-finder once it has first been deemed admissible by the judge.
Once a child has been ruled competent to be a witness’ and the trial begins,
any inconsistencies in the testimony or other credibility issues go to the
weight of the testimony in the eyes of the fact finder, not to the admissibility
of the evidence.
“A child of any age may be permitted to testify so long as the trial judge
is satisfied that the child possesses the ability to observe, recollect, and
communicate”. Essentially the same three-part standard is used for determining
whether a witness is incompetent to testify due to “unsoundness” of mind.
“Unsoundness must be of such degree that the person’s ability to perceive,
recall, and testify are so impaired that the witness testimony is worthless.” The “Full Inquiry” test seems to stress that a competent witness
must have been able to perceive the incident about which he is to testify,
must be able to remember the incident, and must be able to communicate
about the incident.
A court’s determination concerning the competency of a child witness will not
be disturbed by an appellate court absent a manifest abuse of discretion. A trial court is granted wide discretion with regard to this
determination, as the competency of a child witness is not easily reflected
in a written record. Great reliance is placed on the trial court’s determination related
to the child’s competency because the trial court “is in a position to assess
the body language, the hesitation or lack thereof, the manner of speaking,
and all the intangibles that are significant in evaluation but are not reflected
in a written record (cite omitted).” Whenever a child under 10 years old
is offered as a witness, the court must assume the initiative in determining
his competency, although most trial judges would not require a
full competency hearings in cases of articulate and bright nine year
olds.
Washington further fleshed out its competency test by including
two more requirements for child witnesses: understanding the obligation to speak the truth, and the capacity
to understand simple questions about the incident in question.
“The
true test of the competency of a young child as a witness consists of the
following:
-
an
understanding of the obligation to speak the truth on the witness stand;
-
the
mental capacity at the time of the occurrence concerning which he is to
testify;
-
a
memory sufficient to retain an independent recollection of the occurrence
-
capacity
to express in words his memory of the occurrence, and
-
the capacity to understand simple questions about it.”
Washington’s statutes provide that any person of
“sound mind and discretion” may testify and under ER 601, every person is presumed competent
to testify, but persons “who appear incapable of receiving just impressions
of the facts respecting which they are examined, or of relating them truly”
are not competent to testify.
The Washington test for child witness competency is perhaps
more completely set forth in
a recent Washington Court of Appeals case from Division II, which cites authority from other Washington cases for the various parts of the test. Footnotes
citing those other cases are omitted.
“Under any of these formulations, the competency of a witness turns on three
basic preliminary questions of fact. One is whether the witness, at the time
of his or her in-court statement (i.e., his or her “testimony”), is describing
an event that he or she had the capacity to accurately perceive (or,
in alternative terms, an event about which he or she could “receive just impressions”).
Another is whether the witness, at the time of his or her in-court statement,
is describing an event that he or she has the capacity to accurately recall.
A third is whether the witness, at the time of his or her in-court statement,
is describing an event that he or she has the capacity to accurately relate.
The third question subdivides into at least the following: (a) whether the
witness has the capacity to understand simple questions about the event; (b)
whether the witness has the capacity to express in words his or her memory
of the event; (c) whether the witness has the capacity to speak in a formal
courtroom setting; (d) whether the witness has the capacity to distinguish
truth from falsehood; and (e) whether the witness has the capacity to understand
and carry out his or her obligation to speak the truth.”
A recent case makes it clear that in order to satisfy the first part of the
test (the one relating to perception) it must be possible to fix the approximate
date of the alleged incident with some degree of certainty. In a recent Washington
Supreme Court case, the court found “having reviewed the entire record, we find nothing
establishing the date or period of the alleged sexual abuse”. The court then
went on to conclude that A.E.P. should have been found incompetent (overturning
the trial court’s ruling that she had been competent to testify) based only
on the lack of any evidence showing an even approximate date for the event.
A.E.P. establishes the rule that the child’s mental capacity at the
time the event occurred to be able to perceive an accurate impression of the
event cannot be established if there is no evidence when the event took place.
Psychologists, judges, and lawyers often attempt to test a child’s ability to
have accurately perceived and remembered an event by asking the child about
another event in the child’s life (birthday, holiday, first day of school,
etc.) which occurred around the same approximate time period. To the degree
that the child can accurately recite what happened at such an event from the
same time period, it is supportive of the idea that the child should be able
to accurately perceive, remember, and relate the event in question.
In
State v. Pham, in order to determine whether the nine-year-old child
witness demonstrated the mental capacity to receive an accurate impression
of the incident, the court considered her ability to recollect details about
an automobile accident in Canada, which had occurred a short time before the incident with the defendant.
The child remembered the auto accident, remembering who she was with, where
her family was, and the injuries suffered. This evidence convinced the court
she had the capacity to receive an accurate impression about the sexual incident.
Upon review, the Washington State Court of Appeals agreed with the trial court’s
analysis, even though the child had been unable to state where she lived,
when her birthday was, and the name of her school. The trial court is not
required to examine a child witness regarding the actual facts of the case
in making a determination of competency as long as the child demonstrates
ability to accurately recite events that occurred contemporaneously with the
incidents at issue.
One interesting Washington case illustrates the difference between competency,
and credibility, clearly separate issues. In State v. Griffith, a six-year-old girl was left at home with her father and
her uncle James. When the mother returned home she asked the victim if someone
had hurt her, and the girl reportedly said her father had touched her vagina
with his finger. The child was taken to a hospital where she told a physician
her father had stuck his finger inside her vagina. The following day a detective
interviewed the child, and she told him that her father had “put his ding-dong
in my pooky”. However, later that evening the mother brought the child back
to the police station, and the victim said her previous
story had been a lie. She said “Uncle Jimmy” had molested her, but said she
had earlier said her father had been the one who had molested her because
Uncle Jimmy had threatened to hurt her father if she
did not say her father had done it. At a competency hearing she repeated
that version, but the trial judge found her incompetent because of the conflicting
stories. However, her hearsay statements (to her mother, the physician, and
the detective) were allowed, and her father was convicted. Upon appeal the
court held she should not have been found incompetent simply because of her
conflicting stories, and because she was “susceptible to leading questions”.
The appellate court stated,
“our review of her testimony indicates the crucial issue was
not whether the crime had been committed, but who had committed it. At the
time of the incident, the victim said her father, Mr. Griffith, subsequently
she said Uncle Jimmy. Although the record indicates the victim may have responded
to the suggestiveness of the questions, there is, likewise, an indication
she named her father as the perpetrator in response to the suggestiveness
of her mother during the original questioning. Given that she remembered
the incident, remembering initially stating that Mr. Griffith was the perpetrator,
and was found to be capable of telling the truth, it appears the court may
have her incompetent to testify simply because it disbelieved her testimony
about Uncle Jimmy. However, the jury, not the judge, is the sole and exclusive
judge of the credibility of witnesses (cite omitted). Moreover, any inconsistency
in her testimony went to credibility, not admissibility (cite omitted). Thus,
the record suggests the trial court abused its discretion in ruling the victim
incompetent.”
However, see also Jenkins v. Snohomish Co. PUD, in which a child who gave inconsistent statements was not
found competent to be a witness.
Psychologists and other mental health professionals apply their expertise to
the issue of the competency of child witnesses. If the child is very young,
the defendant (or adverse party in a civil case) can move to have the child
evaluated by its expert to determine whether the child is competent to be
a witness. Judges will usually not allow such evaluations without some initial
showing of possible lack of competency. Attorneys may bring psychologists
along to help them during the attorney’s pre-trial interview with the child
as part of normal discovery, and can sometimes thereby obtain enough information
to make a showing that a formal evaluation should be done. Many judges are
not prone to grant motions for examination of child-witnesses by an expert
hired by the defendant or an adverse party, for fear the expert might not
be sensitive to the needs and feelings of the child, or might be biased towards
one party. Some judges appoint their own experts on child witness competency
in an effort to be fair to the child and to both parties. Other judges conduct
their own competency evaluations, usually in open court, during which they
ask children questions such as the difference between truth and lies. Such
unsystematized intuitive examinations may provide little testing of some of
the domains involved in the competency test.
When an expert is hired either by the court or by one side in the dispute to
give an opinion as to a child’s competency to be a witness, the expert will
need to assess the child’s abilities in each of the domains involved in the
competency test.
However, a simple assessment of the child’s abilities is not enough – the clinician
also needs to learn the alleged facts of the case by reviewing police reports
and witness statements. The clinician needs to know exactly what it is the
child is supposed to have perceived, how many times he has been questioned
about it and by whom, and what these questioners have reported about their
interrogation of the child. By this means the clinician can attempt to determine
what factors if any might have interfered with the child’s memory. Furthermore,
the child’s ability to communicate accurately about the event will depend
not only on the child’s communicative abilities, but also on the complexity
of the alleged events themselves. The clinician will need information about
the facts of the case in order to determine if there is a good fit between
the child’s abilities and the requirements that will be placed on the child
under the facts of the specific case. Indeed, depending on what the event
is that the child supposedly perceived, remembered, and is to communicate
about, different psychological tests may be chosen.
Thus, the expert should assess the child’s ability to have accurately perceived
the event in question. The substantial body of scientific evidence concerning
eyewitness testimony would be applicable here, as would standard age appropriate
tests of perception. Obviously, the psychologist would be unable to offer
much of an opinion on the issue of the child’s ability to have accurately
perceived at the time unless the approximate date of the event in question
could be fixed or determined, so that the psychologist can have some idea
of how to extrapolate back what the child’s perceptual abilities would have
been when the alleged event occurred. Whereas young children may be able
to recognize familiar faces and to absorb simple scenarios, recognition of
more complex events or complex scenes may require processes that are more
likely to develop with age. Thus the child’s competency may turn on the facts of the case,
such as whether he is to have seen and to have perceived facial features (an
identification case), heard a conversation, or tactilely experienced a sexual
act.
The expert should also assess the child’s memory, using
one or more of the standardized tests of children’ memory.
Because legal proceedings often occur months or even years after the relevant
event, the capacity to remember is just as important as the capacity to observe.
A child who does not have a memory sufficient to retain an independent recollection
of an event is not competent to testify. Because a person’s capacity to remember events is inseparable
from the person’s capacity to resist suggestion from other sources, research
on both memory-fade and suggestibility are important here.
Research on children’s memory shows that as the time interval between
the event and recall lengthens, children do not do as well as adults in recalling
events. Obviously the clinician needs to know over what period of time
the child had to remember the event.
Young children are not as proficient as older children and adults at
responding to open-ended questions that call for free recall because free
recall in children is often incomplete. Young children have not yet mastered
the memory strategies used by older individuals. What they do recall is usually
fairly accurate, but their accounts tend to be relatively brief. Since young children often provide insufficient detail during
free recall, cues and prompts must sometimes be used to trigger additional
memories. However, as the questions become more focused and specific they
may eventually cross the line into leading questions. Obviously the challenge
is to find ways to improve children’s memory without influencing children’s
statements.
Many studies of children’s memory are open to criticism that they do
not approximate the type of real-life situations involved in real cases of
sexual abuse. Obviously it is not ethically possible to involve children
in abuse and then to study what they are able to remember. One solution to
this problem is to study painful and stressful medical procedures involving
the genitalia. In a famous study children ages three to ten years old were interviewed after
undergoing urethral catheterization. The three and four year-olds were less
accurate with their memories than the older children, although the
children’s understanding of the event, parental communication, and
children’s own reactions also predicted accuracy. Children who displayed
PTSD- like symptoms were particularly likely to make commission errors in
response to both specific and open-ended questions.
Most authorities agree that a child’s memory can be made inaccurate by
multiple interviews, and attention has focused on improving the skill of interviewers.
Multiple interviews may stress vulnerable children, and the more interviews
there are the more likely some unnecessarily suggestive questions will be
asked. One study involved two groups of non-abused pre-school age children,
with three and four year olds in one group, and five and six year olds in
the other. The children were interviewed seven to ten times over a three-month
period about actual and fictitious events. Children were told about “some
of the things that may have happened to you, and I want you to think real
hard about each one of them”. For both groups true events were nearly always
recalled accurately, but when asked to recall fictitious events, 44% of the
younger children assented to a false event at the first interview, whereas
25% of the older children assisted to a false event at the first interview.
In a related experiment the interviewer told the children they had actually
experienced the fictitious events, and asked them if they remembered having
done so. By the 11th interview children’s false assent rate had
increased to over 80%. Repeated questioning within a single interview may
have similarly deleterious effects on accuracy, as children who are asked
the same question more than once may assume they gave the “wrong” answer the
first time.
An interviewer can create an atmosphere that is accusatory regarding
a particular person, typically a suspect, by describing him in terms of a
negative stereotype. In one study a research assistant posed as a “police
officer” who questioned non-abused four year-old children eleven days after
they had seen a staged event, and had played with a person called “
a babysitter”. Just before the interview with the “police officer” in one condition
a real police officer spoke to the children, telling them,
“I am concerned that something bad might have happened the last time
you were here. I think that the babysitter you saw here last time might have
done some bad things, and I am trying to find out what happened the last time
you were here when you played with the babysitter”. Many children in that
condition could be misled to state that the babysitter might have done some
“bad things”.
In another study of non-abused preschool age children, one group was told on several
occasions about Sam Stone, who was according to the story very clumsy. Another
group was also told about Sam Stone, but were not
left with the impression that he was clumsy. Later, Sam Stone visited the
children’s preschool, where he stayed for two minutes, doing nothing clumsy
or unusual. Both groups of children were interviewed once a week for four
weeks. Some were asked leading questions suggesting that Sam Stone had ripped
a book or soiled a teddy bear. Children who had received the stereotyping
message about Sam Stone were more likely than other children to provide misinformation
in response to leading questions.
Most studies also indicate that young children are more suggestible than
adults. Children over 10 or 11 years of age tend to show adult levels
of resistance to leading questions. However, children under the age of six may acquiesce fairly frequently
to leading, detached, incriminating, and repeated questioning, especially
over multiple interviews. For a general description of the suggestibility research, see
articles published in 1 Psychology, Public Policy, and Law (Nov
2,1995).
Some studies suggest that repeatedly asking preschool children to “think real
hard” about whether fictitious events actually happened to them can cause
them to come to believe the events actually happened to them. When the children do form false memories of events that did not
actually occur, professionals from the fields of psychology, psychiatry, social
work and law enforcement were fooled by the children’s narratives, and were
unable to reliably detect true memories from false-memories. In a related
study, instead of merely asking children if they remember experiencing a fictional
event, the children were repeatedly told that the fictional event actually
did happen, and the children were asked to create a mental picture of the
event in their head and then to say if they remembered it. By the 12th session 43% of preschoolers falsely claimed
they remembered experiencing a fictional event. These findings suggest that
it is possible to mislead preschoolers into believing they experienced a fictional
event.
All of this research suggests that the clinician evaluating competency should
review the interviews the child has had with the police in an effort to discern
whether leading, suggestive and/or repetitive questions were asked. Frequently
this is difficult to do, as there is no legal requirement that child interviews
be videotaped. In Dependency of A.E.P. Washington’s Supreme Court declined to adopt a taping requirement,
pointing out that the legislature had recently considered and then rejected
such a requirement.
The expert should also test for the child’s ability to express himself orally
with a standardized test of oral expression. Such testing would also address
(a) “whether the witness has the capacity to understand simple words about
the event, (b) whether the witness has the capacity to express in words his
or her memory of the event, and (c) whether the witness has the capacity to
speak in a formal courtroom setting”.
Many of the difficulties encountered with child witnesses are a function of
miscommunication between adults and children. Researchers in one study evaluated
the ability of young research subjects to repeat questions that had been asked
of actual child witnesses. Children in the study misunderstood many common
courtroom questions. Questions in court often require child witnesses to pinpoint
time, date, location, distance, height, or weight. These systems of measurement
are learned only gradually over the course of the elementary school years.
Until about the age of seven or eight children are not usually able to tell
time. Young children do not have a good ability to know when they understand
a question and when they do not, so young children sometimes mistakenly believe
they understand questions, and may try to answer questions they do not understand.
Children may not understand, but realize the adult is waiting for an answer,
and may try to answer by focusing on a fragment of the question they do comprehend. Children are significantly less accurate in reporting events
when questioned with complex developmentally inappropriate questions rather
than simple questions. Obviously communication is a two-way street, and the child’s
ability to communicate turns to a large degree on the complexity of the topic
and the ability of questioners to speak at the child’s level. It is clear
that if the child is completely unable to express in words any memory of the
event, then the child has nothing to offer the trier of fact, and should not
be allowed as a witness.
As far as I know, no formal scientific test has yet been devised which could
test “(d) whether the witness has the capacity to distinguish truth from falsehood”,
but intelligence testing would be applicable to the final Karpenski
issue of (e) “whether the witness has the capacity to understand and carry
out his or her obligation to speak the truth.” Research shows that these
are not problem areas even for very young children. One study of children
aged four to six showed that most understood the difference between
truth and a lie. The clinician should ask the child to define the difference between
truth and a lie. Washington case law indicates that a child does not have to be
able to define “truth”, so if the child is not able to do so, the clinician should ask
the child whether obvious statements are true of false, such as, “I’m wearing
glasses”. Children should also be asked what would happen to them if they
lied. Research shows that young children may often refuse to answer such
hypothetical questions as to what might happen to them if they lied, but will
usually answer hypothetical questions about what will happen to a fictitious
story child if he lied. Interestingly, Washington does not require that the child take an oath as long
as he or she is adequately apprised of the importance of telling the truth.
Intelligence
testing is appropriate, especially measurement of verbal intelligence, since
most of the demands in court will have to do with verbal abilities. A child
with high verbal intelligence is likely to be better able to perceive, remember,
and communicate than a child of the same age with low verbal intelligence.
Washington’s most recent Supreme Court case on competency stresses that “intelligence” (not youth) is the proper standard
to be used in assessing the competency of a child witness.
When standardized psychological testing is available the trial judge will have
information from several tests showing how well this particular child performs
in each domain (perception, memory, communication, intelligence, ability to
determine truth from falsehood, and ability to understand the oath) compared
to other children of that age, obviously very valuable information, since
the judge will know for each test whether the child has more or less ability
in each area than an average child of that age, and the judge will also know
that particular child’s areas of strengths and weaknesses.
Psychologists and other mental health professionals not only administer standardized
testing, but also take a detailed history in order to better understand the
particular child’s medical and psychological make-up. Any mental or emotional
problems are uncovered and described, as are any issues relating to the child’s
school performance. In many cases it may be advisable to review school records
to gain information about the child’s cognitive functioning. Important family
issues are also discussed. Family members and teachers may be asked questions
to better elucidate how well the child is able to determine fact from fantasy.
Obviously the clinician should be aware of any history of mental health treatment
the child may have received, and should review treatment records if at all
possible.
Some psychologists actually ask the child to recite the event in question, under
the rationale that it is the best way to determine whether the child can give
a competent account. Others only ask questions about contemporaneous events
(as discussed above) such as holidays, birthdays, or other significant events
that occurred close to the time of the alleged incident. The rationale of
these psychologists is that questions may arise as to whether children become
confused about what actually happened if they are required to recite their
story too many times. If the child is asked about the relevant event the
questioning should be done very carefully. Yuille suggests asking for a free
narrative account, and only if that is ineffective, proceeding to open-ended
questions, specific yet non-leading questions, and finally leading questions.
Traditionally it has been thought that one of the best ways to test a witness’s
statement is through the time-honored method of cross-examination. Through
cross-examination skillful lawyers can reveal when child witnesses had limited
ability to perceive, remember, or communicate about an event. All witnesses
who appear in court are subject to cross-examination, which is questioning
through frequent use of leading questions by counsel for the adverse side
of the lawsuit. One of the tenets of our jurisprudence is that it is important
that witnesses appear in court in person so that their demeanor can be observed,
particularly during cross-examination.
The repeating of statements made by people who are not present to testify in
court by witnesses who are present is called “hearsay”. The general rule is that hearsay evidence is not allowed, as
hearsay evidence cannot be effectively cross-examined. However, there are
a large number of exceptions to the hearsay rule.
One group of exceptions is types of evidence that are considered so reliable
or trustworthy that cross-examination is not necessary. For that group of
hearsay exceptions, sometimes called “presumptively reliable” hearsay, it
is not necessary that the person who made the statement (referred to as the
“declarant”) is available for trial. These types of hearsay statements are
considered to be just as reliable if not more reliable than what the declarant
might have said in court. These exceptions are referred to as the 803 exceptions,
based on their placement in Rule 803 of the Federal Rules of Evidence. Many
of these exceptions concern written records, such as family records, business
records, boundaries, etc. Remember that hearsay may be written if the person
who wrote the document is not present in court, but a party has the document
in court, and is attempting to introduce it.
There
are four “presumptively reliable” types of hearsay that often are involved
with child declarants. They are called “present sense impression”; “statements
about then existing mental, emotional, or physical condition”; “excited utterance”;
and “statements for purposes of medical diagnosis or treatment”. The first
three are closely related, since all involve what the child said during or
immediately after the event, so they all work to prevent any distortion from
a fading memory or by suggestive questioning by admitting only those statements
which were close in time to the event.
A “present sense impression” is defined under the federal rules as “an out-of-court
statement which describes or explains an occurrence or condition made at the
time the declarant was perceiving the condition or occurrence or immediately thereafter.” The limitation that these impressions be “present” ones is thought
to negate the possibility that the statement is deliberately untrue, and to
eliminate the risk of fading of memory over time. In the “existing mental,
emotional, or physical condition” exception perceptions of emotional feeling or physical conditions relating
to the causative event can be allowed even if they are not made close in time
to the causative event. The idea with this exception is that there can be
no better evidence of a person’s pre-existing condition then what that person
said while experiencing that condition. In the “excited utterance” exception, statements the declarant made while speaking spontaneously and
greatly excited about an event are considered highly reliable. In Washington one factor in determining spontaneity is the amount
of time between the startling event and the utterance, so that if between
the occurrence of the event and the making of the
statement the defendant had been calm and had engaged in normal activities,
the statements would be less likely to be admissible. In other words, excited utterances are spontaneous statements
made while under the influence of external physical shock before the declarant
has time to calm down enough to make a calculated statement based upon self-interest. The idea here is that when a person is sufficiently startled
to make a spontaneous statement, that statement is likely to be true, as there
has not been time to fabricate. In State v. Ramirez, five hours between the event and the purported “excited utterance”
was thought to be too long, and it was ruled the hearsay should therefore
not have been allowed. In all three of these exceptions the idea is that
out-of-court statements made after an opportunity for reflection are unreliable,
since witnesses can alter their account to their advantage. Statements made
close in time to the witnessed event are deemed to be reliable because there
has been less opportunity for reflection and fabrication.
The last “presumptively” reliable hearsay exception is the “medical diagnosis
or treatment” exception. Under this exception a physician or therapist can repeat in court
what the child told him if the health care professional was offering “medical
diagnosis or treatment”. This exception is based on the assumption that no
one seeking diagnosis or treatment of a medical condition would tell lies
to someone attempting to provide help. In the case of young children, it
is debatable whether pre-schoolers know when they are speaking to a therapist
or physician that they are there for medical diagnosis and/or treatment.
In Washington, Division III requires an affirmative showing that
the child understood he or she needed to give accurate and truthful responses
to a counselor’s questions. In that case Division III held that in a case where a child has
not himself sought medical treatment, but instead makes statements to a counselor
procured by him or her by a state social service agency, the state’s burden
under ER 803 is more onerous, such that the record must affirmatively demonstrate
the child made the statements understanding that they would further the diagnosis
and possible treatment of the child’s condition. Other jurisdictions take
the opposite position, applying the same standard to cases involving children
as to cases involving adults, and taking the position that inquiries into
the declarant’s motive and understanding are “not contemplated by the rule”. Under this hearsay exception, statements made over the course
of hundreds of hours of psychotherapy will usually be admitted, and therapy
for sexual abuse qualifies as medical treatment for purposes of the rule. The most controversial use of this exception is the in “recovered
memory” cases during which a child “remembers” an event in therapy which he
has earlier “repressed.”
Hearsay statements which are not “presumptively reliable”, and can only be allowed
when the declarant is “unavailable” for trial, the so-called “necessity” exceptions
under rule 804, are cases in which the courts are faced with either letting
the hearsay be allowed or doing without critical evidence altogether. Rule
804 of the Federal Rules of Evidence lists only four of these types of “necessity”
exceptions. These include “statements made under the belief of impending
death” (“dying declarations”), “statements of personal or family history”,
“statements against the declarant’s interest”, and “former testimony”.
These
types of hearsay rarely involve children as witnesses. “Dying declarations”
rarely occur among children; the expectation of death is assumed to motivate
a declarant to tell the truth since he or she will have little to lose in
life, and might gain a reward in the after-life for honesty. “Statements
against interest” are comments made by a declarant which admit liability of
some sort, so that a reasonable person in the declarant’s position would not
have made the statement unless believing it to be true. “Statements about
personal or family history” would include statements such as the declarant’s
mother’s birthday, etc. The “former testimony” exception allows
statements to be admitted that a declarant made at an earlier occasion as
a witness in court or at a deposition only if the witness is unavailable for
the new trial. The party against whom the testimony is to be used must have
had an opportunity on the earlier occasion to cross-examine the witness.
Since children rarely testify in court anyway, this exception is rarely used
with children.
Under English common law a declarant was “unavailable” when “the person whose
assertion is offered may now be dead, or out of the jurisdiction, or insane,
or otherwise unavailable for the purpose of testifying.” The number of reasons that excuse the appearance of a hearsay
declarant has been broadened under the Federal Rules to include witnesses
claiming a Fifth Amendment privilege, witnesses claming privileged communications
arising out of a spousal, attorney-client, doctor-patient, or priest-penitent
relationship, cases where the declarant refuses to answer any questions in
court despite having been ordered to do so, and cases where the declarant
testifies and states that he lacks all memory of the subject matter of his
earlier declaration (Rule 804 [a][1][5]). These last two cases in which the
declarant refuses to answer despite being ordered to do so, or in which the
witness lacks memory of the earlier statement, are the ones most commonly
used with child witnesses. A trial court should not find a child “unavailable”
simply because of inconsistencies in his or her testimony, and to do so constitutes
reversible error.
Under federal law an open-ended “catch all” hearsay exception is included
with both classes of hearsay: presumptively reliable hearsay (in which the
appearance of the declarant is excused), and necessity hearsay (in which the
appearance of the declarant is excused only if the declarant is “unavailable”).
In deciding whether a particular hearsay statement is admissible under these
catchall exceptions, courts are to determine whether there are “equivalent
circumstantial guarantees of trust worthiness” in deciding on a case-by-case
basis whether hearsay statements will be admitted. Washington does not have
such “catchall” exceptions.
When a child’s hearsay statements will not fall under any other enumerated exception,
courts have often used the catchall exceptions to allow the child’s statement
into evidence. The problem with these exceptions is that courts are given
little guidance as to how to decide whether these are “sufficient indicia
of reliability”. Because of challenges to using the “catchall” exceptions
to introduce children’s testimony, and in an effort to broaden the ability
to allow hearsay declarations of children, in the 1980’s most states created
special hearsay exceptions for children’s testimony about sexual abuse or
neglect. Although most of these statutes are limited to criminal prosecutions
of sexual abuse and neglect, Washington’s also applies to dependency (abuse or neglect) proceedings
in the juvenile courts. Again, however, these statutes provide little guidance as to
how trial judges are supposed to decide whether to allow the hearsay. Washington’s statute provides only “that the time, content, and
circumstances of the statement provide sufficient indicia of reliability”. The Washington model also requires that if the child does not appear
at trial as a witness, his hearsay statements cannot be admitted unless other
corroborating evidence is presented. In a U.S. Supreme Court case, Idaho v. Wright, however, the court seemed to hold that child hearsay evidence
must have inherent indicia of reliability in and of itself, and corroborative
evidence may not be considered in a trial court’s initial determination of
whether such hearsay is reliable.
In
State v. Jones, the Washington Supreme Court commented on the purpose of Washington’s special child hearsay exception.
“RCW 9A.44.120 is principally directed at alleviating the difficult problems
of proof that often frustrate prosecutions for child sexual abuse. Acts of
abuse generally occur in private, and in many cases leave no physical evidence.
Thus, prosecutors must rely on the testimony of the child victim to make their
cases. Children are often ineffective witnesses, however. Feeling intimidated
and confused by courtroom processes, embarrassed at having to describe sexual
matters, and uncomfortable in their role as accuser of a defendant who may
be a parent, or other relative or friend, children often are unable or unwilling
to recount the abuses committed on them. In addition, children’s memories
of abuse may have been dimmed with the passage of time. For these reasons,
the admissibility of statements children make outside the courtroom, and especially
statements made close in time to the acts of abuse they describe, is crucial
to the successful prosecution of many child sex offenses.”
The Washington child hearsay statute applies only in dependency cases and criminal cases, including
juvenile offender cases. This statute applies when a child younger than the
age of ten describes sexual or physical abuse of himself or herself (or abuse
of another child he or she has witnessed) to another person. Hearsay statements
made to parents, therapists, child protective services workers, investigators,
etc., are routinely admitted by most trial courts under this statute, if the
child involved is found competent to testify and actually testifies at the
trial as to the abuse. “If both the hearsay declarant and the hearsay recipients
testify at trial and are subject to full cross-examination, no issue of truly
constitutional magnitude is involved.” However, if the child is found to be incompetent, or does not
testify for other reasons, the child is then thought to be “unavailable” as
a witness. As discussed above “unavailability” is usually based on the physical
absence of the witness, but may also arise when the witness has asserted a
privilege, refuses to testify, or claims lack of memory. The child was not considered to have “testified” and was thus
“unavailable” in a case where the state called the child to the stand but
examined her only about her school, her pets, and other matters unrelated
to the proceeding at hand.
Obviously the question arises as to whether a hearsay statement can
be introduced from a child who has been deemed incompetent to testify
at trial. The trial setting requires that a witness give testimony
under oath and that a witness be able to participate in cross-examination,
so the witnesses’ ability to distinguish truthful statements
from false statements, and knowledge of his sworn obligation to tell
the truth is important. On the other hand, hearsay exceptions necessarily
contemplate that the declarant’s perception, memory, and credibility
will not be explored through the use of cross-examination. Instead,
with hearsay statements the trial court must find that the circumstances
surrounding the making of the statement render the statement inherently
trustworthy. State v. C.J, a recent Washington Supreme Court decision,
held that a trial court does not need to find a child was competent
to testify at the time hearsay statements were made in order for them
to be admissible, as long as the statements are deemed to have been
reliable.
However, when there is evidence that the child could not distinguish
truth from lies at the time he spoke, this “may be considered
as part of the totality of circumstances indicating reliability”.
State v. C.J. (cited above).
Part III: The Child Hearsay Rule-Reliability
The child hearsay statute makes an additional requirement that before the
hearsay may be admitted as evidence the court must find in a pre-trial hearing
“that the time, content, and circumstances of the statement provide sufficient
indicia of reliability”. According to State v. Ryan these indicia must come from the time, content and circumstances
of the statement itself, not from other evidence showing it to be true. As
mentioned above trial courts will usually admit the hearsay statements of
children who are deemed to be competent and do testify at trial, but technically
even these hearsay statements must meet the test of “reliability”. However,
the issue is usually much more critical (and contested) in cases where the
child does not testify at trial, and in those cases additional “corroboration”
of the hearsay statements is also required before the hearsay will be allowed.
In
an attempt to define what “sufficient indicia of reliability” meant, Ryan set forth nine factors to determine reliability of
child hearsay, five from State v. Parris and four from Dutton v. Evans,
The
Parris factors are:
1.
Whether there is an apparent motive to lie
2.
The general character of the declarant
3.
Whether more than one person heard the statements
4.
Whether the statements were made spontaneously, and
5.
The
timing of the declaration and the relationship between the declarant and the
witness
The Dutton
v. Evans factors are:
6.
The statement contains no express assertion about the past fact
7.
Cross-examination could not show the declarant’s lack of knowledge
8.
The possibility of the declarant’s faulty recollection is remote, and
9.
The circumstances surrounding the statement (in the case spontaneous and against interest) are
such that there is no reason to suppose
the declarant misrepresented defendant’s involvement.
These nine “Ryan factors” are commonly applied by trial courts to determine whether there are sufficient indicia of reliability for child hearsay.
There is no guidance given as to which factor(s) should be given the most
weight.
Notice
here that the trial judge must only consider evidence about the “time, content,
and circumstances of the statement” when determining reliability, and is not
allowed to “boot-strap” by using other corroborative evidence adduced at trial
to validate otherwise “unreliable” evidence. Similarly, the trial court is
not allowed to decide the hearsay was “unreliable” based on evidence which
does not corroborate. For example, in State v. Gregory, the defendant wished to introduce a polygraph test he had taken
as proof of the lack of reliability of a child’s out-of-court statement, but
the Washington State Court of Appeals upheld the trial court’s finding that
consideration of the polygraph was improper in determining “reliability”,
stating that for purposes of considering whether a child’s hearsay should
be admitted, the relevant questions was “reliability”, not
“credibility.”
Oftentimes challenges to the “reliability” of a child’s hearsay statement have
to do with the possibility that a child’s memory might have been tainted by
improper or suggestive interview techniques. Some of the problems with suggestive
questioning of children can be attributed to inadequacies of children’s memories.
A number of studies show that children have special problems remembering source
information, such as when and where a particular incident occurred. Preschoolers
may mix together bits and pieces of different past episodes, or may even come
to believe that fantasies occurred. In one study preschoolers visited “Mr. Science” at a university laboratory
and watched him carry out some experiments. Four months later parents received
written descriptions of other experiments the child had not witnessed, and
a further incident that had not actually occurred. Parents read the stories
to their children three times. When asked later about what they had seen
in the laboratory, children frequently remembered witnessing experiments that
had been mentioned only in the stories read to them by their parents.
A 1998 study with preschoolers used praise and rewards for sought after information,
expressed disappointment when the children failed to come up with the desired
answer, and made invitations to speculate about what might have happened by
imagining. This was called the “social incentive group”, and it was compared
with a control group which was subjected to suggestive questioning only but
was not offered the “social incentives”. In the social incentive condition,
five and six year olds replied positively to less than 10% of the misleading
questions. However, three year olds replied positively to 81% of the misleading
questions in the social incentive group, compared to only 31% in the control
condition. It appears preschoolers’ recollections of events can be greatly
influenced by such “social incentives”.
There is some authority from other jurisdictions that a trial court should hold
a separate pretrial “taint” hearing before admitting statements from children
in cases where the accused first shows some evidence that the child’s statements
may have resulted from suggestive or coercive interviewing. In New Jersey v. Michaels, Kelly Michaels was convicted of 115 counts of various crimes against
children at the Wee Care Nursery School in New Jersey, where she was employed as a teacher. Many of the
investigative interviews were video-taped or audio-taped, and the tapes indicate
that the investigators asked the children to keep Kelly in jail, showed investigators
threatening to tell a child’s friends that he wouldn’t cooperate and depicted
investigators giving children sexual information. The New Jersey Supreme
Court established the requirement in that state for “taint” hearings in such
circumstances.
The Washington Supreme Court declined to require such taint hearings in Dependency
of A.E.P, a similar case (although it was a dependency case) in that there
was evidence of suggestive interviewing. However, the Washington Supreme
Court discussed two different ways that evidence of “taint” caused by suggestive
or improper interviewing should be addressed. First, the court stated that
improper or suggestive and thus “tainted” interviewing could make a witness
incompetent because of faulty memory: “If a defendant can establish a child’s
memory of events has been corrupted by improper interviews it is possible
the third Allen
factor, “a memory sufficient to retain an independent recollection of the
occurrence”, may not be satisfied.” Second, the court also stated that statements made by children
under the child hearsay statute could be challenged because of improper or
suggestive interviewing under the nine Ryan factors at a pre-trial hearing pursuant to RCW 9A.44.120
(1).
The Washington Supreme Court in A.E.P. specifically indicated that the fifth, eighth, and
ninth Ryan
factors would be relevant to claims of improper or suggestive interviewing.
In A.E.P.
the petitioner had hired a psychologist, Stuart Greenberg, Ph.D., who had
testified that “over 80 percent of the studies showed children from three-to-five
years old are at the height of suggestibility”, and who had suggested the
child’s statements were unreliable because of the suggestive and improper
interviewing. The court seemed to have some doubts about both A.E.P’s “credibility”
and whether her hearsay statements had been “reliable”, clearly separate issues,
and stated the possibility a child’s memory or testimony may have been tainted
by improper interviewing should be addressed under the fifth, eighth and ninth
Ryan factors.
“The timing of the declaration and the relationship between the declarant and
the witness,” Ryan, 103 Wn.2d at 176 (fifth factor) allow the court to consider
the exact nature of the exchange through which the witness obtained the
child’s statements. Suggestive interviewing can also affect the eighth
Ryan factor, “the possibility of the declarant’s faulty
recollection is remote.” Id. (eighth factor) “The circumstances surrounding the
statement…”, Id. (ninth factor) also make room for argument concerning
the methodology of the interview. The possibility of suggestive interviews
leading to tainted child hearsay statements should definitely be considered
by a trial court; and Petitioner did present the issue in the dependency
hearing.
Petitioner challenges the trial court’s finding that all of A.E.P.’s hearsay
statements were reliable. We agree the circumstances surrounding A.E.P.’s
disclosures to the Montgomerys would appear to render her initial disclosures highly
unreliable. Certain aspects of the subsequent interviews with Kyle Smith
and Detective Kelley also cast suspicions on the credibility of A.E.P.’s
statements. Petitioner has not alleged any impropriety by Dr. Greenberg
or Dr. Cillis, who both interviewed A.E.P. on two different occasions; but
A.E.P. refused to say her father had touched her in those interviews. Ultimately, we decline to rule on the reliability of A.E.P.’s
hearsay statements under Ryan, because the statements-even if reliable-must still
satisfy the corroboration requirement.”
As
A.E.P illustrates, psychologists also get involved in testifying about the
“taint” issue as to whether the child’s memory of the events to which the
testimony relates has been so corrupted by improper or suggestive interviewing
techniques that the child’s subsequent testimony is irretrievablely tainted.
In A.E.P the Washington Supreme Court stated this issue is to be analyzed
by the trial judge under the nine Ryan factors as discussed above.
In that dependency case the petitioner hired a psychologist, Dr. Stuart A.
Greenberg, who interviewed the two girls who had reportedly stated that the
petitioner (their father) had engaged in sexualized behavior with them. Dr.
Greenberg was “questioned in depth about proper versus improper interviewing
techniques”; and as mentioned above he “stated that 80% of the studies showed
children from three to five years old are at the height of suggestibility.”
The Washington Supreme Court ruled that A.E.P. had been incompetent to testify
because of the second Allen factor, under which “A.E.P. must
have had the mental capacity at the time of the alleged abuse to receive an
accurate impression of it. Having reviewed the entire record, we find nothing
establishing the date or period of the alleged sexual abuse.”
In at least one case, which happened to involve one of the notorious Wenatchee
child sex abuse prosecutions, an appellate court reversed a trial court’s
decision not to authorize expert testimony about “false memory syndrome”,
which would have explained how Detective Perez’s interviewing methods could
have led to inaccurate testimony. In cases in which psychologists or other experts are testifying
as to how a child’s recollection could have been tainted by suggestive questioning,
many judges worry that such testimony might invade the province of the jury
to determine witness credibility. Thus, experts should be careful to state
that they have formed no opinion as to whether the child is telling the truth,
but rather that the opinion goes to the level of risk of unreliability
based on the way the child was interviewed.
Psychologists also give expert testimony as to whether there is sufficient
“corroboration” of the child’s hearsay statements under the child hearsay
statute in cases where the child does not testify. The most effective
types of corroboration for child sexual abuse cases are eyewitness testimony,
a confession by the accused, or medical or scientific testimony documenting
abuse. However, in many if not most cases of child sexual abuse there is
no direct physical or testimonial evidence to corroborate the child’s statement.
Consequently the corrobation requirement must reasonably be held to include
indirect evidence of abuse. In State v. Swan, the Washington State Supreme Court stated, “A child’s sexual behavior
can corroborate, if an expert persuades the court that it is abnormal in a
child of that age”. Obviously the defendant (or adverse party) could also
put on expert testimony that given behaviors on the part of the child were
not corroborative of physical or sexual abuse. Experts would utilize the
extensive literature on child sexual abuse and/or physical abuse in addressing
that issue of corroboration.
In a recent study a multi-disciplinary team investigated the diagnostic utility
of sexual behavior problems in diagnosing sexual abuse using the Child Sexual
Behavior Inventory. Sexually abused children were just as likely to have
high CSBI scores as non-sexually abused children. Thus, it appears the commonly believed idea that sexually abused
children exhibit more sexual behavior problems may be in error. For years
many people believed that a child’s style of play with anatomically correct
dolls could corroborate sexual abuse, but there is now general agreement that
that use of the dolls is improper.
What a child says while asleep may provide corroboration. Statements made
by a child while asleep are not considered hearsay, as they are not considered
to be conscious or intentional assertions of fact or opinion. In one case two children living in different homes had nightmares in which
they yelled the defendant’s name. The trial court relied on expert testimony
that nightmares are a common symptom of sexual abuse.
The
Washington Supreme Court actually decided to overturn the trial court’s decision
to allow A.E.P.’s hearsay statements into evidence based on lack or
corroboration. The requirement for “corroboration” does not exist in cases where
the child-witness is found to be competent and testifies at trial about the
incident. The court compared the A.E.P case, in which there was
little or no corroboration, to the Swan case, in which the victim’s
hearsay statements were corroborated by parallel disclosures, precocious sexual
knowledge, masturbatory behavior, behaviors with an anatomically correct doll,
complaints of pain upon urination, and other physical and emotional evidence.
In Swan the child victim described episodes of fellatio, ejaculation
and intercourse. The Swan court held that the three-year-old alleged
victim’s accurate description of such acts indicated precocious sexual knowledge
which corroborated the children’s allegations of abuse. The Swan court
held that the children’s precocious sexual knowledge was sufficient corroborative
evidence on the basis that the children could only have learned it as the
result of having been abused. Obviously experts would have much to offer
in this area, as there is an extensive literature on which factors are actually
correlated with sexual abuse, and just as importantly, which factors are actually
not correlated with sexual abuse. Experts can and do testify as to whether
the child’s behavior offers independent corroboration of an alleged act of
sexual abuse. Each act described in the hearsay statement sought to be admitted
must be separately corroborated. Corroborative evidence need not be conclusive — it needs only
support a reasonable inference that the acts alleged in the hearsay statements
occurred. However, an “inconclusive physical exam” that has consistent
with abuse (digital fondling) but also consistent with lack of abuse was deemed
to be insufficient corroboration in Dependency of A.E.P.
Using Group Data In Individual Cases To Establish Corroboration
The
scientific database for the behavioral sciences on which researchers and clinicians
rely is generally nomothetic, i.e. principles of behavior are derived from
comparisons of groups differing on particular dimensions. However, legal
decisions must be made about individuals. Considerable controversy exists
as to whether probability estimates about an individual case should be allowed
based on group data. Clearly all scientific evidence about individuals which
is based on group data is probabilistic in nature.
Consider a case in which an expert were to testify that children who have
been abused frequently keep secrets, delay disclosure, and retract their allegations,
and the prosecution were to attempt to admit that expert opinion as corroboration
to attempt to prove that a child had been truthful in her initial allegation
which she had since retracted.
Whereas it is frequently true that abused children do exhibit this “child
abuse accommodation syndrome” there is no evidence it occurs more frequently among abused children
than among non-abused children. Thus, such testimony is properly admitted
to show that some abused children do show accommodation, educating the jury
that abused children can keep secrets, delay disclosure, and retract. However,
the testimony would not be properly admitted to show that a given child was
indeed abused; because the fact a child exhibits sexual abuse accommodation
does not increase the likelihood the child was indeed abused. It is important
for jurors to hear that a surprising number of sexually abused children do
retract their allegations. Otherwise, they may assume that retractions prove
abuse did not occur.
Consider also a case in which an expert testified that a child met the “profile”
or “syndrome” of a battered child, or a sexually abused child, and that evidence
was used as corroboration to show the child was likely to be telling the truth
about the abuse. Such testimony would be intended to show that the purported
victim shows behavioral characteristics exhibited by a certain proportion
of victims of a particular type of offense. There is considerable controversy
as to whether there is scientific basis to a “child abuse syndrome”. Even assuming that such evidence were strong scientifically, and that a valid profile of a sexually
abused child could be constructed, the testimony would be inherently misleading
due to base rate differences. Melton offers a hypothetical example. Suppose that a test could be devised
that was so powerful that 90 percent of children who had actually recently
been sexually abused would be identified by the “profile”, and 90 percent
of children who had not been sexually abused would be correctly identified.
Assume that five percent of children in the general population have recently
been sexually abused, a percentage which probably substantially exceeds the
actual base rate of recent sexual abuse. If a given individual child fits
the profile, what is the probability she has actually recently been sexually
abused? If 1000 children randomly selected were given the test, if would
correctly identify 90% of the group of children who had actually been recently
sexually abused (true positives). There would be on average 50 children out
of the 1000 tested who had actually recently been sexually abused, and the
test would correctly identify 90% of them, or 45 of them. However, the test
would also identify 10% of the group of children who had not recently been
sexually abused. Out of the 950 children who had not recently been sexually
abused, the test would identify 10% or 95 of them, as having been recently
sexually abused. The test would identify 130 children (45+95) as having been
recently sexually abused, but only 45 of those, or 35%, would actually have
been recently sexually abused. However, a judge or jury, hearing that the
victim met the profile, would probably not realize that because of the base
rates the probability the particular child had been sexually abused was so
low.
What if a mental health expert were to testify that the defendant had certain
characteristics which were commonly found among child abusers or child molesters,
and that evidence was offered as corroboration to suggest the defendant was
guilty? When applied to criminal defendants such evidence is character evidence,
which is not usually admissible unless the defendant puts his character at
issue by claiming that he is not the type of person who would commit the crime. Even though there may be a true correlation, which has been established
through good research between particular traits or identifiers and involvement
in certain types of offenses, such testimony is almost always deemed too prejudicial
to permit except in response to defense assertions. For example, in State
v. Maule, in which the defendant was the father of one of the alleged
victims, and a father figure to the other, an interviewer at Harborview Medical Center interviewed the two girls, both of who later testified
at trial. The interviewer also testified at trial about characteristics of
abused children in general, stating that both girls manifested characteristics
during their interviews consistent with those of sexually abused children.
She also testified that a majority of child abuse cases involved a male parent
figure as the perpetuator, with biological parents in the majority. The court
held that the theory that sexually abused children manifest particular identifiable
characteristics “was not shown to be supported by accepted medical or scientific
opinion”. The court went on to say that even if the interviewer’s theory
that the majority of perpetrators were fathers were valid (and thus relevant
under Evidence Rule 404), its admission into evidence was prejudicial to the
defendant under Evidence Rule 403, which excludes evidence that is relevant
but involves a danger of unfair prejudice. Citing another Washington Case,
State v. Steward, in which it was held to be reversible error to admit expert testimony
in a murder prosecution of a babysitting boyfriend that “serious injuries
to children are often inflicted by either live-in or babysitting boyfriends”,
the court reversed the decision to allow the evidence. It appears that in
Washington, given the presumption of innocence for criminal defendants,
defendants must be convicted on the basis of what they did, not who they are.
The Sixth Amendment of the U.S. Constitution states: “In all criminal prosecutions,
the accused shall enjoy the right … to be confronted with the witnesses against
him…”. A strict reading of the confrontation clause
would suggest that no hearsay should ever be admitted in a criminal trial
unless the declarant were present in court to give
testimony. However, in 1892 the U.S. Supreme Court declared that the confrontation
clause does not forbid hearsay introduced by the state in a criminal case.
Hence, the confrontation clause does not require the state to produce every
accuser. The court has struggled to devise some way of deciding which
types of hearsay would be allowed in criminal cases. In Ohio v. Roberts, the U.S. Supreme Court indicated that the prosecution must either
produce the hearsay declarant as a witness, or demonstrate the witness’s “unavailability”,
and in addition must demonstrate that the hearsay is trustworthy unless it
falls “within a firmly rooted hearsay exception”.
However,
in White v. Illinois, the U.S. Supreme Court seemed to back away from the requirement
that all hearsay declarants must be shown to be unavailable. The four-year-old
girl who had allegedly been sexually abused by her mother’s former boyfriend
experienced “emotional difficulty” on being brought into the courtroom, and
“…departed without testifying”, but the prosecution sought to introduce her
hearsay statement. The court decided that at least for “firmly-rooted” hearsay
exceptions that are “long-established”, reliability is the exclusive test
for determining the admissibility of hearsay. The court thought that when
a hearsay statement is actually thought to be more reliable than an in-court
version the declarant would give, cross-examination in order to test truthfulness
is not necessary. However, unavailability must still be demonstrated when
the hearsay exceptions do not fall within the presumptively reliable exceptions.
As mentioned above, under the Federal Rules of Evidence a declarant is “unavailable”
as a witness when “though present, the declarant refuses to answer any questions
despite a court order to do so” and”, where the declarant testifies, but only to state that he
or she lacks memory of the subject matter of the earlier declaration”. As already discussed, these two types of unavailability are most
frequently seen in criminal prosecutions involving child witnesses. In State
v. Shidel,Washington has decided that a child with no memory of the event
at time of trial was “unavailable”.
“Incompetency” is not specified as a ground for unavailability under the Federal
Rules, but a Washington case suggests that in Washington State it is. A related issue is whether the state and federal confrontation
clauses preclude allowing hearsay under the child hearsay statute consisting
of previous statements of a child that abuse occurred if that child then takes
the stand at trial and “recants”, saying that the previous statements were
lies. In State v. Clark an eight-year-old girl took the witness stand and recanted
her prior allegations that her stepfather had molested her, saying she had
lied because Clark had left her family, leaving them without a phone or
car. Clark’s attorney was, of course, afforded an opportunity
to cross-examine the child. Her prior statements to a school-interventionist
and a prosecutor child-interviewer that abuse had occurred were admitted under
the special child hearsay statute, as were Clark’s confession that on three
occasions he had woken up to find the girl masturbating him, and he had allowed
it to go on until he ejaculated. He was convicted of three counts of child
molestation in the first degree. The Washington Supreme Court held, “while
Clark may view his conviction notwithstanding (the girl’s)
clear statements that her hearsay statements were lies as a miscarriage of
justice, it is nevertheless not a violation of the confrontation clause”.
Adults who refuse to testify can be held in contempt of court. Although statutes
empower the court to conduct contempt proceedings and impose detention as
a sanction, children are very rarely held in contempt when they refuse to
testify. One of the most common reform measures enacted specifically for
child witnesses in the 1980’s was aimed at avoiding cases failing because
of a child witness’s refusal to testify by authorizing the use of special
screens or closed-circuit television so that the child would not have to see
the accused while giving testimony in the courtroom. In Coy v. Iowa, the U.S. Supreme Court reviewed Iowa’s statute, which permitted the placement of a screen
between the child and the accused so that the child could not see the accused.
Coy was convicted, but appealed on the ground this procedure was violative
of the confrontation clause. The U.S. Supreme Court reversed the decision
by a five to four vote, and it appeared other states’
“shield” laws were also in danger of being held unconstitutional. However
just two years after the Coy decision the U.S. Supreme Court revisited the
issue, in Maryland v. Craig, and upheld the validity of a Maryland statute which required
a preliminary hearing on the issue of whether the potential child witness
would experience “serious emotional distress such that the child cannot reasonably
communicate”, when viewing the accused face-to-face. If so, the court could
allow the child victim’s testimony by closed-circuit television, which made
it impossible for the child to see the defendant. In order that the confrontation
clause is not violated, the court must make three findings. First, the court
must determine that in the particular case at hand trauma to the child will
probably occur. Second, the trauma must be caused by the physical presence
of the defendant rather than just by mere fear of the courtroom setting.
Third, the trauma experienced by the child must be “more than de minimis “,
i.e., more than: “mere nervousness or excitement or some reluctance to testify”. The decision clearly anticipated that expert witnesses would
be called to testify about the psychological impact that face-to-face confrontation
would create in the child witness. Although the U.S. Supreme Court did not
discuss any empirical evidence that face-to-face confrontation can inhibit
children’s testimony, since the Craig decision one study has been presented
showing that for young children face-to-face presence between a child and
a defendant can inhibit truthful testimony. Another study showed that jurors were no more able to detect
when children were lying in a face-to-face condition
than through a closed circuit TV condition.
Washington enacted RCW 9A.44.150, which only comes into play when
there was an alleged act or an attempted act of sexual contact or physical
abuse. This statute permits a child under the under the age of ten upon motion
by the prosecuting attorney to testify by means of one-way closed circuit
television in a criminal case. Washington’s statute closely follows the rules laid down, so it is “constitutional on its face”. The trial judge must find “by substantial evidence, in a hearing
conducted outside the presence of the jury, that
requiring the child to testify in the presence of the defendant will cause
the child to suffer serious emotional or mental distress that will prevent
the child from reasonably communicating at trial. If the defendant is excluded
from the presence of the child, the jury must also be excluded”.
The
statute also requires as a prerequisite to allowing testimony by closed circuit
television that the court must find “that the prosecutor has made all reasonable
efforts to prepare the child for testifying, including informing the child
or the child’s parent or guardian about community counseling services, giving
court tours, and explaining the trial process. If the prosecutor fails to
demonstrate that preparations were implemented or the prosecutor in good faith
attempted to implement them, the court shall deny the motion.” This statutory provision was closely tailored after Ohio v. Roberts, which requires that witnesses cannot be determined to be constitutionally
“unavailable” unless the prosecutor has made a good faith effort to obtain
the witness’s presence at trial. State v. Foster held that this statute was not unconstitutional under article
I, section 22 of the Washington Constitution, (Washington’s “confrontation clause”) which provides, “In criminal
prosecutors the accused shall have the right ... to meet the witnesses against
him face-to-face”, or under the U.S. Constitution’s confrontation clause.
In the Foster case the trial court had conducted two competency hearings.
In the first the six year old child witness and the defendant were in the
courtroom together, and the child repeatedly responded that “maybe” she would
be able to tell the truth about what happened, or that she “didn’t know” if
she would be able to do so. When asked by the prosecutor whether if she couldn’t
see the defendant, would she be able to tell the truth about what happened,
she said she would, and when specifically asked whether it was because she
could see him that she felt unable to tell the truth, she responded, “yes”.
During the second competency hearing, which was held by means of closed circuit
television a few days later, the girl promptly promised to tell the truth,
and the trial judge ruled she was competent, noting “a great deal of difference
between the child that testified the other day and the child who testified
today.” The trial court made a specific finding that there was substantial
evidence that requiring her to testify in front of the defendant would cause
her to suffer serious emotional or mental distress which would prevent her
from reasonably communicating at trial. In Foster the Washington State
Court of Appeals upheld the trial court’s decision. Although expert testimony
had not been required in that case, the Court of Appeals specifically discussed
that expert testimony could be necessary in some cases to establish whether
it would be difficult or impossible for a given child to communicate effectively
in front of the accused due to serious emotional or mental distress caused
by his presence, such that the child would be “unavailable” in the constitutional
sense. The state need not show permanent psychic scarring to the child, only
that the child’s emotional distress is sufficiently serious that it prevents
the child from communicating at trial.
Experts undertaking these types of evaluations would address whether there
would be “serious emotional or mental distress” caused by the defendant’s
presence in the courtroom, which was not caused by “mere nervousness excitement,
or some reluctance to testify”. If so, the expert would then address whether
that emotional or mental distress would make it difficult or impossible for
the child to communicate effectively in front of the accused.
The solution to the child’s reluctance to testify may
not always be screening or closed circuit TV. In one Washington case the trial court permitted a child at a competency hearing to whisper
answers to questions to an adult who was sworn to truly and correctly report
the answers. The Washington State Supreme Court held this procedure did not
constitute reversible error. The mere fact that a child witness is reluctant
to testify at a competency hearing or at trial does not necessarily render
the child incompetent.
Conclusion
There
are five areas in which expert psychological opinions are offered in cases
involving child witnesses. The first is whether the child is competent to
testify at the time of trial. This involves assessment of the child’s ability
to have perceived the incident, to recall the incident, and to express himself
about the incident, as well as the child’s ability to distinguish truth from
falsehood and to understand and carry our his or
her oath and obligation to speak the truth.
The second is whether the child was competent (under the same test) at the time
hearsay statements were made. Under Karpenski the issue apparently
only arises if the child be is not thought competent to testify at trial,
or if the child is “unavailable” at trial.
The
third issue about which expert psychological opinions may be offered involves
whether the interviewing process was suggestive or improper. The A.E.P.
court held that the nine Ryan factors were to be utilized in doing
this analysis, to determine the statement’s “reliability”.
The fourth issue about which expert opinions may be offered is whether there
is independent corroboration of the abuse. This issue also only arises
if the child witness is “unavailable” to testify or thought to be “incompetent”
at trial to be a witness. As outlined in Swan the psychologist testifies
as to whether there is independent corroboration of physical and or sexual
abuse other than the child’s statement alleging abuse.
The fifth issue about which expert opinions may be offered is whether a screen
or closed-circuit television system is necessary in order to make it possible
for a traumatized child witness to testify truthfully. This occurs in cases
in which the child is so traumatized when able to see the defendant that the
child cannot testify truthfully unless the child is unable to see the defendant.
State v. Przybylski, 48
Wn. App. 661 (1987).
Johnson, M. and Foley, M. (1984).
Differentiating Fact From Fantasy: The Reliability of Children’s
Memory. Journal of Social Issues, 40:2, 33.
State v. Karpenski,
94 Wn. App. 80 (1999).
Lyon, TD, et.al. (2001). Reducing
maltreated children’s reluctance to answer hypothetical oath-taking competency
questions. Law and Human Behavior, 25, 81.
Yuille, J.C., et al. (1993). Interviewing
children in sex abuse cases, in child victims, child witness’, understanding
and improving children’s testimony: clinical, development and legal implications.
(Goodman,
G. & Bottoms, B. eds.).
State v. Rohrich,
132 Wn. 2d 472 (1997).
Dutton v. Evans, 400 U.S. 74 (1970).
State v. Swan,
114 Wn. 2d 613 (1990); State v. Bishop, 63 Wn. App. 15 (1991).
State v. Karpenski, 94 Wn. App.85 (1999).
Peter, D. (1991). “Confrontational
Stress and Children’s Testimony: Some Experimental Findings”, presentation,
Society for Research in Child Development, Seattle WA, April 21.
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