Paul John Griffiths
What contributions has psychological research made to recent improvements in the treatment of child witnesses in Britain?
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This essay was originally submitted to the University of Birmingham for the Master of Science in Criminological Psychology. The notion that "children should be seen and not heard" has, until relatively recently, included their voice in legal proceedings. We are however, beginning to realize the importance of children’s testimony in criminal and civil cases, hence there has been less of intimidation by the Judiciary and Magistracy, use of CCTV and trained interrogations have enabled the child witness to relax. But we are at only the beginning of things.
This essay considers the position of child witnesses, primarily within the Criminal Justice System. The first section, "Judicial Process", puts the legal framework into context with respect to current legislation. Section two, provides insights into "Child Development" and outlines Piaget’s ‘stages of development’, information processing and how information is encoded and retrieved. From these base lines we can explore various "criminological implications", the heading for section three. Here, the various concerns and criticisms with regards children in the courtroom are raised. These are explained, and highlight current research with reference to age differences and memory. The question of how psychological research can influence alternative approaches is illustrated with focus on assisting the courtroom process especially with regards to the preparation of child witnesses.
Infancy, in the legal sense, is not in itself an excluder for the purpose of competence as a witness. On the other hand, young children may be incompetent to give evidence simply because of immaturity (Walker 1980). Archives dating back to the Eighteenth Century, tell of R. vs. Brasier [1799], where the rule firstly considered that sworn evidence could be provided only if the child appeared, on initial examination by the court, to be able to appreciate the nature and consequence of an oath or "to entertain of the danger and impiety of falsehood". Secondly, that no other person gave evidence of what was said about the incident except the child itself, when giving sworn evidence.
In the case of R. vs. Wallwork [1958], it was ruled that no child should be called as a witness when aged 5 or under. Lord Goddard CJ commented "...a jury could not attach any value to the evidence of a child of five; it is ridiculous to suppose they could". However, in the case of R. v. Hayes [1977] the threshold of knowledge for a child to give evidence was lowered. It was no longer considered necessary for the child to be aware of the existence of God, it was found sufficient, if the judge was satisfied that the child appreciated the solemnity of the occasion and the duty when on oath to tell the truth.
At present the Criminal Justice Act 1988, Section 32, permits children under the age of 14 to give evidence in Crown Court for offences of sex and violence, by means of a live video link. Section 34 of the same Act abolishes the previous rules of uncorroborated evidence. It is now possible to convict on the unsworn evidence of a child. The Children’s Act 1989, enables civil courts to also receive unsworn evidence of children on the same basis as in criminal courts and the Criminal Justice Act 1991 permits the admission of child witnesses pre-recorded evidential interviews (Aldridge 1992). However, the Hearsay Rule as found in R. vs. Brasier [1799], still largely prevents adults repeating to the court what a child has told them about a criminal offence. Myers (1994) reminds us that adjudication of child sexual abuse allegations, maybe tried in criminal or civil courts with regards to child abuse or divorce proceedings. He reiterates that central to these proceedings is the necessity for a child to testify.
Stages of development: Back to top
In order to establish how child witnesses’ process information we need to consider various stages of development. Jean Piaget (1896-1980) emphasized changes in the organization or structure of intelligence and how differences in these structures are reflected in the learning of children at different ages (Inhelder & Piaget 1958). Children progress through four qualitatively different stages of cognitive development. In the ‘sensory-motor stage’, children from ages 0 to 2 understand the world primarily through their five senses and through their physical interactions with the environment. From ages 2 to 7 children understand the world in a pre-logical, intuitive way referred to as the ‘pre-operational thinking stage’. Pre-operational children are considered by Perry & Wrightsman (1991) to jump from data to conclusions through large, impressionistic leaps, believing in magic and also believing in what they see. From the ages 7 to 11 children begin to use logical systems to organize their experiences. This is known as the ‘concrete operations stage’, where they use a framework of reality based mental operations to attempt to understand the world around them, in a ‘here and now’ fashion. From age 11 onwards, known as the ‘formal operations stage’, children become capable of complex, abstract reasoning (Inhelder & Piaget 1958). It is only at this stage that children are capable of hypothetical-deductive reasoning and are capable of analyzing for example, "if & then" statements through systematic exploration of logical alternatives (Perry & Wrightsman 1991).
Information processing: Back to top
Alternatively, the "Information-Processing" point of view utilizes a computer analogy that divides memory into ‘hardware’ and ‘software’ (Atkinson & Shiffrin (1968). The ‘hardware’ component is divided into three parts: a) sensory registers, which record information for a brief three-to five-second period; b) short-term store, a temporary, working memory that allows us to remember active, conscious material; and c) long-term store, where information is held permanently. The ‘software’ component of memory utilizes various strategies or control processes, which we use to help remember and transfer information among the various ‘hardware’ components. Developmental differences in memory result from age-related changes in the ability to use memory strategies.
Encoding and retrieving information: Back to top
Children experience difficulty in remembering information accurately. Perry & Wrightsman (1991) illustrate this in their book ‘The Child Witness’. They suggest that it is not only difficult for youngsters to encode information, that is, to get the material from ‘short-term store’ into ‘long-term store’, but also in retrieving information from ‘long-term store’ and putting it back into ‘short term store’. Both issues seem to result from the fact that most of the space allotted to control processes in children's active ‘short-term store’, is filled with the instructions for encoding and retrieving information. In other words, the child still is mastering the task of remembering. Over time, children become more efficient at processing information, mainly because instructions become automatic. This efficiency enables them to store more information and to transform it so that it can be understood and accessible at a later stage. However, Werner & Perlmutter (1979), inform us that, once a piece of information is stored successfully into ‘long term store’ a young child probably will remember it as well as an adult.
Children in courtroom: Back to top
Children may fear many aspects of the legal system simply because of their lack of knowledge of or experience with it. There is a widespread belief that children can be manipulated easily into making false reports (Goodman & Helgeson 1985). It would not be difficult to understand why unprepared children are frightened by the courtroom experience. Especially considering that they are asked to enter a formal-looking enclosure face an authority figure in black, {wearing a wig} and submit themselves to intense and often prolonged questioning from strangers, in front of an audience of grown-ups. These circumstances hardly makes any of us feel relaxed (Whitcomb, Shapiro & Stellwagen 1985).
Being involved in the legal system can affect the child witness by causing stress, which in turn can affect the quality of the child’s testimony and psychological development (Flin, R., Bull, R., Boon, J. & Knox, A. 1992), as revealed in recent Home Office research, in which ‘Independent Adults’, describe severe adverse effects on the child as a result of giving testimony (Plotnikoff & Woolfson 1995). Children are sometimes confused more easily than adults, and consequently may suffer a loss of confidence, thus placing them at a disadvantage within the adversary system because jurors tend to believe witness who are confident and do not appear confused (Goodman & Helgeson 1985).
One of the principal concerns about children as witnesses is that they are disadvantaged compared with adults in terms of their relative ability to understand court proceedings, to cope with the emotional demands of a trial and to give competent evidence (Flin, R. et al 1992). Because children generally are more easily intimidated than adults, it is especially important to limit as much as possible the ill effects of intimidation; in this way, suggestibility is reduced (Perry & Wrightsman 1991). Children’s credibility may also suffer because jurors tend to believe witnesses who remember both central and peripheral detail; children sometimes have difficulty remembering non-central information (Goodman & Helgeson 1985).
Age differences and memory: Back to top
Research into age differences in eyewitness testimony conducted by Goodman & Reed (1986), found that performance of three-year-olds was inferior in almost every way to that of six-year-olds, but they (the six-year-olds) were more threatened by the experience than older subjects. They suggest that an increase in stress leads to a significant decline in performance.
But older children’s more sophisticated cognitive abilities enable them not only be more confident of their memories but also to recall details about an event, and to answer questions about it with greater accuracy. However, these same abilities also permit older children to realize the social implications of their statements, which may lead to the withholding of information out of, for example, embarrassment or feelings of protection for the loved one (Goodman and Schwartz-Kenney 1992). Therefore, although, older children may be capable of remembering an actual event, they may not be willing to disclose it. Thus knowing a child’s age in itself is not enough to determine ability to recall memory.
The research of Roberts & Blades (1996) investigated the ability of child witnesses, to distinguish memories of events from real life, against events seen on television. They studied four-year-olds, ten-year-olds and adults watching a live event and a corresponding video event. They were then interviewed a week later to see if they confused memories of the events. Results showed all the children gave accurate accounts of real life and television events when allowed to use their own words. Ten-year-olds were consistently as accurate as adults on all measures; and, although accurate in free recall, four-year-olds confused the events when asked suggestive questions.
With regards to ‘suggestibility’; Goodman & Reed (1986) consider that adults in general are more likely to answer suggestive questions correctly than were six-year olds and that six-year-olds were better than three-year-olds. From their research they found that when asked accurate but leading questions, the six-year-olds answered with the greatest accuracy, followed by the three-year-olds and then the adults. Moreover, adults made more intrusion errors than did either three or six year olds. That is, adults tended to let inaccurate information intrude on their memory of the event. While three and six year-olds tended to be more suggestible than adults are overall; their findings did not hold true for central information that had been encoded properly in ‘long term store’.
The two basic components of ‘attention’: scanning & selectivity improve as children mature (Perry & Wrightsman 1991). Scanning becomes more efficient and exhaustive; selectivity becomes more refined. They found that even children aged three to four have the capacity to attend effectively to the straightforward, and to involve familiar people in familiar surroundings.
The notion that some young children are easily intimidated when interviewed by a stranger, and that intimidation can heighten suggestibility, is supported by the research findings of Goodman and Schwartz-Kenney (1992). If intimidation can be lessened, young children’s ability to resist false suggestions can be improved, although sensitivity to suggestion may not be eliminated completely. Nevertheless, the research suggests that even young children when interviewed can resist a number of false suggestions relevant to particular charges of abuse.
Assisting the courtroom process: Back to top
A large number of children studied by Flin et al (1992) appeared able to give evidence reasonably well in terms of providing at least some fluent details. This supports the earlier findings of Perry, Nielson, Silvius, & Rosenthal (1986), who suggested that some young children are quite capable of making accurate eyewitness identifications. However, a large percentage of children in the Flin et al (1992) study, appeared to be tense and unhappy while giving their evidence. From the other spectrum, the London Family Court Clinic (1991), suggests that the skills of ‘Adult Questioners’, were important and needed improving.
Saywitz & Geiselman (1998) conducted research into children’s evidence, with respect to maximizing completeness and minimizing error. They developed two innovative approaches to question children namely narrative corroboration and cognitive interviewing. Both aim to aid children in narrating past events more fully with less need for leading questions, thereby reducing the risk of contamination. Their research suggests that both these techniques can expand children’s initial retelling, in order to allow follow-up questions to clarify information from the original narrative. Thus eliminating adult supposition and maintaining that the goals of both accuracy and completeness are served.
Court preparation: Back to top
Pre-court preparation programs aim to educate the child witness about the legal system, address fears, and help reduce anxiety (Satter & Bull 1996). During 1993 after collaboration between Government Departments and Children’s Agencies, ‘The Child Witness Pack’ was published (NSPCC and Childline 1993). This was designed specifically to prepare children for the experience of giving evidence in English Courts. A Home Office funded research conducted by Plotnikoff and Woolfson (1995), found that 50% of ‘Independent Adults’, believed children were more confident and reassured. However, many also felt that the preparation was inadequate for the child’s experience in court.
A survey conducted by Satter & Bull (1996) explored issues regarding the child witness and found that professionals within the system were aware of children’s fears and stress upon them. They are positive about the benefits of pre-court preparation, even though few facilities existed. A study by the London Family Court Clinic (1991) suggested that preparation should include how to equip children with the communication skills to cope with cross-examination and anxiety management to techniques to deal with stress. Overall, there was little post-court support for the child witnesses and even less for the caregiver (Satter & Bull 1996). Research in other countries has shown that simply providing the child with some legal knowledge and giving a tour of the courtroom is insufficient (Plotnikoff and Woolfson 1995). Satter & Bull (1996) felt that guidelines were required to produce more consistent preparation across England and Wales; Thus supporting the previous year’s evaluation by Plotnikoff and Woolfson (1995), who state what is typically provided in Britain is not enough to reduce stress and improve testimony.
The Judicial system has progressively changed over the issues of child testimony, from R. vs. Brasier [1799], where children were required to appreciate and understand the nature and consequence of an oath, and R. vs. Wallwork [1958] where evidence from five-year-olds was disallowed, to the present position in which not only children’s unsworn evidence is allowed in both Criminal (Criminal Justice Act 1988) and Civil Courts (Children’s Act 1989). But video recordings (CJA 1991) and video links (CJA 1988) are usable and admissible as evidence.
It would be arrogant to assume that Psychology was totally responsible for the change. Psychological knowledge is shared between other disciplines. Which may have contributed to the improvements in statutory interpretations of child witnesses. Child development has derived from Educationalists, Biologists, Anthropologists, Sociologists and Psychologists over the years. Often these specialists are part of a multidisciplinary research team as indicated in references.
This essay has provided insight into child development (Ihelder & Piaget 1958) and how children process information (Atkinson & Shiffrin 1968, Werner & Perlmutter 1979), with regards to memory and recall both central to evidential matters. Evidently there are specific stages that individuals develop and progress through. Each stage is quantitatively different from each other.
Age has been one determinant as to whether an individual’s evidence can be heard in court or not (Goodman & Schwartz-Kenney 1992). Obviously, young people are manipulated (Goodman & Helgeson 1985) and courtroom environments have a detrimental effect (Whitcomb et al 1985, Plotnikoff & Woolfson 1995). But also; that children can be affected by stress (Flin et al 1992), Intimidation (Goodman & Schwartz-Kenney 1992) and Suggestibility (Goodman and Reed 1986). However, recent research indicates that children as young as three are more accurate that adults (Goodman & Reed 1986). Children can also be accurate in eyewitness identification (Perry et al 1986). Therefore, age is not necessarily a prediction of unreliable evidence. Although the subject of ‘Expert Witnesses’ has not been part of this essay, Forensic Psychologists are able to formally assess witness differences and abilities.
Research, shows that child Questioners, Interviewers and Judicial Personnel, need to be aware of communication skills, needed to decrease ‘intimidation and Suggestibility’ (Saywitz & Geiselman 1998), so training needs to be undertaken and monitored (London Family Court Clinic 1991, Plotnikoff & Woolfson 1995).
Finally, we need to ensure that adequately prepared courtrooms, with a child friendly and environmentally designed interior, incorporating latest video link technology is available. Moreover, these improvements will be advantageous to the less traumatized children, enabling them to give accurate evidence.
At present we have some form of ‘court preparation’ for child witnesses (NSPCC & Childline 1993). However, it is sadly in need of improvement (Satter & Bull 1996) and is not enough to reduce stress and improve testimony (Plotnikoff & Woolfson 1995). When the Criminal Justice System is overhauled, I hope they not only listen, but also take on board Psychological Research.
Table of Statutes: Back to top
Children’s Act 1989.
Criminal Justice Act 1988.
Criminal Justice Act 1991.
List of Cases: Back to top
R. vs. Brasier [1799], Leach 199.
R. vs. Hayes [1977] 2 All E.R. 288; [1977] 1 W.L.R. 234.
R. vs. Morgan [1978] 3 All E.R 13.
R. vs. Wallwork [1958] 42 Cr. Ap. R. 153.
References: Back to top
Aldridge, J. (1992). The Further Training of Professionals Dealing with Child Witnesses. In Dent, H. & Flin, R. (1992). Children as Witnesses. Chichester: Wiley.
Atkinson, R. & Shiffrin, R. (1968). Human memory: A proposed system and its control processes. Cited in Perry, N. & Wrightsman, L. (1991). The Child Witness: Legal Issues and Dilemmas. London: Sage.
Flin, R., Bull, R., Boon, J. & Knox, A. (1992). Children in the Witness Box. In Dent, H. & Flin, R. (1992). Children as Witnesses. Chichester: Wiley.
Goodman, G. & Helgeson, V. (1985). Child sexual assault: children’s memory and the law. Cited in Perry, N. & Wrightsman, L. (1991). The Child Witness: Legal Issues and Dilemmas. London: Sage.
Goodman, G. & Reed, R. (1986). Age differences in eyewitness testimony. Cited in Perry, N. & Wrightsman, L. (1991). The Child Witness: Legal Issues and Dilemmas. London: Sage.
Goodman, S. & Schwartz-Kenney, B. (1992). Why Knowing a Child’s Age is Not Enough: Influences of Cognitive, Social, and Emotional Factors on Children’s Testimony. In Dent, H. & Flin, R. (1992). Children as Witnesses. Chichester: Wiley.
Inhelder, B. & Piaget, J. (1958). The growth of logical thinking from childhood to adolescence. Cited in Perry, N. & Wrightsman, L. (1991). The Child Witness: Legal Issues and Dilemmas. London: Sage.
London Family Court Clinic (1991) Reducing the system-induced trauma for child. Cited in Plotnikoff, J, and Woolfson, R. (1995). The child witness pack: an evaluation. London: Home Office Research and Statistics Department
Moston, S. and Engelberg, E. (1990). The effects of social support on children’s eyewitnesses. Cited in Plotnikoff, J, and Woolfson, R. (1995). The child witness pack: an evaluation. London: Home Office Research and Statistics Department
Myers, J. (1998). Adjudication of child sexual abuse cases. Future of Children. 4 (2): 84-101.
Perry, N., Nielson, D., Silvius, R. & Rosenthal, P. (1986). Effects of visual stimuli cues on time-lapse recall. Cited in Perry, N. & Wrightsman, L. (1991). The Child Witness: Legal Issues and Dilemmas. London: Sage.
Perry, N. & Wrightsman, L. (1991). The Child Witness: Legal Issues and Dilemmas. London: Sage.
Plotnikoff, J, and Woolfson, R. (1995). The child witness pack: an evaluation. London: Home Office Research and Statistics Department.
Roberts, K. & Blades, M. (1996). Do Children confuse memories of events seen on television and events witnessed in real life? Issues in Criminological & Legal Psychology. 26: 52-57.
Satter, G. & Bull, R. (1996). Pre-court preparation for child witnesses. Issues in Criminological & Legal Psychology. 26: 67-75.
Saywitz, K. & Geiselman, R. (1998). Interviewing the child witness: Maximizing completeness and minimizing error. In Lynn, S. & McConkey, K. [Eds.] (1998). Truth in Memory. New York: Guilford Press.
Werner, J. & Perlmutter, M. (1979). Development of visual memory in infants. Cited in Perry, N. & Wrightsman, L. (1991). The Child Witness: Legal Issues and Dilemmas. London: Sage.
Whitcomb, D., Shapiro, E. & Stellwagen, L. (1985). When the victim is a child: Issues for judges and prosecutors. Cited in Perry, N. & Wrightsman, L. (1991). The Child Witness: Legal Issues and Dilemmas. London: Sage.
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