23 Mar 2015
It has been established that children, in general, provide less accurate and complete responses to specific questions as compared to adults. This has led to concerns about the reliability of response in real life investigations. While the basic memory literature suggests that repeated testing can actually have a beneficial effect, there is still much concern among scholars as to the effects of repeatedly interviewing an eyewitness, especially a child. Public and professional opinion about the credibility of children as witnesses in court cases has been sharply divided (Saywitz & Camparo, 2009). In this paper, a review of the scientific literature relevant to the topic of child witnesses in the criminal and civil courts is conducted. A look into significant court cases and decisions followed by previous research will be examined to reach the conclusions that more research in this area is needed, however, ultimately, children are an extremely important factor in court cases involving eyewitness testimony and under certain presumptions can result in being suggested and manipulated based on specific elements in forensic interviews.
During the 1980s, there was a massive alteration in society's understanding to and acknowledgment of the problems of violence and exploitation that were undergone by children. Incited by an increased alertness of the prevalence of child sexual abuse, state after state reviewed and changed its criminal procedures to permit prosecutors to handle more proficiently with victims and defendants. All of these changes and cases were instrumental in leading to the significant changes that were made in the legal system. "These changes included allowing children to provide uncorroborated testimony in cases concerning sexual abuse, and the elimination of the competency requirement for child witnesses" (Bruck & Ceci, 1999, p. 420). With a relaxation of standards in the courts, there has come an increase in the amount of children who provide statements in legal cases. In addition to the vast amount of children who have now given testimony and unsworn statements in a variety of contexts, civil and family courts also began to flood with child testimony. Therefore, the question of whether children's statements and testimony are reliable has resulted in an increase of significance in recent years to the courts, forensic professionals, police officers, and many similar fields of study.
Whether or not these children's testimony is true or false is still a common question surrounding the debate of whether children can be reliable and accurate in their statements. However, when one looks back to the 1980s, a sensational number of cases passed through the courts that raised serious and fundamental concerns about the reliability of children's statements. In many of these 'daycare abuse hysteria' cases, young children claimed that they were being abused by mostly daycare workers in the most of bizarre ways. The claims were often eccentric, involving reports of ritualistic abuse, multiple perpetrators and victims, some demonic claims, and torture. Without much corroborating evidence to back up these children's claims, many mental health professionals and police officers believed such claims. In the subsequent legal proceedings, the major issue before the Judge and jury was whether to believe these children. "Prosecutor's argued that children do not lie about sexual abuse that their reports were authentic, and that there bizarre and chilling accounts of events substantiated the fact that the children had actually been brutally victimized" (Bruck, Ceci, & Hembrooke, 2002, p. 521). On the other hand, the defense was arguing that these children's statement were merely the product of repeated suggestive interviews by parents, law enforcement, social workers, etc. many of these cases, however, did end in convictions as people were mesmerized by the lack of support or evidence and with the common belief that children do not lie when it comes to sexual abuse.
So many years later now, social scientists have developed a sociological and psychological understanding of the possible factors that might influence children's testimony in such cases. More specifically, there has been a rapid increase in research on children's memories. Many of these studies highlight the weaknesses of their memories, paying attention to how children's memories can be molded and changed by certain techniques and suggestion.
In this paper, a review of the scientific literature relevant to the topic of child witnesses in the criminal and civil courts is conducted. A quick first look into the series of cases and statutes that have been ruled on relevant to children who become involved in the US court process will be illustrated. Secondly, a review of some of the studies conducted on eyewitness memories and testimony over time will be examined. Thirdly, a look into some of the more common and influential techniques of suggestion and interviewing techniques and responses and their effects on how children respond will be undertaken. Finally, a preview into the effects that suggestive interviews have on children's credibility and with the courts will cover. All this for the search of whether suggestibility and repeated questioning does or does not affect children's eyewitness accounts and testimony and its meaning for the courts.
It is basic common knowledge within the legal system that eyewitness testimony can make or break a case. Prosecutors often rely on it in assisting to persuade the jury. However, for the same amount of time, professionals in psychology have been on the other side, debating whether those who assist with testimony of eyewitness accounts can truly be reliable and accurate regarding what their memories are telling them. This has even been a constitution matter, with the Supreme Court ruling over some important cases with significant decisional outcomes in eyewitness matters.
In the court case of Watkins v. Sowders, the courts addressed the issue of "whether a State criminal trial court is constitutionally compelled to conduct a hearing outside the presence of the jury whenever a defendant contends that a witness' identification of the defendant was conducted improperly" (Watkins v. Sowders, 1980). At Watkins appeal, his attorney once again argued that the trial court had a constitutional obligation to perform a hearing without the jury to determine if the identification evidence was admissible. Watkins has been convicted of the robbery of a liquor store based on identifications of two store employees. The Kentucky Supreme Court rejected this argument. The Court of Appeals affirmed the district court's judgment and, like the district court, ruled that a hearing on the admissibility of identification evidence need not be held outside the presence of the jury. "The U.S. Supreme Court determined that although a judicial determination regarding the admissibility of identification evidence outside the jury's presence may be advisable, the U.S. Constitution does not require a per se rule compelling such a procedure in every case" (Watkins v. Sowders, 1980).
Although it has been observed, by the late U.S. Supreme Court Justice William J. Brennan, Jr., in his dissent to Watkins v. Sowders, that witness testimony is evidence that "juries seem most receptive to, and not inclined to discredit", Justice Brennan also observed that "At least since United States v. Wade, 388 U. S. 218 (1967), the Court has recognized the inherently suspect qualities of eyewitness identification evidence, and described the evidence as 'notoriously unreliable'". Historically, eyewitness testimony had what Justice Brennan described as "a powerful impact on juries", who noted in his dissent that "all the evidence points rather strikingly to the conclusion that there is almost nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!'" (Watkins V. Sowders).
"The legal standards addressing the treatment of eyewitness testimony as evidence in criminal trials vary widely across the United States on issues ranging from the admissibility of eyewitness testimony as evidence, the admissibility and scope of expert testimony on the factors affecting its reliability, and the propriety of jury instructions on the same factors" (Gaulkin, 2010, p. 7). In New Jersey, a court that is typically considered a leader regarding criminal law, a report was organized during a custody proceeding in the case of New Jersey v. Henderson which heard expert testimony with respect to eyewitness identification and looked into published literature on the subject (Gaulkin, 2010). In New Jersey v. Henderson a decision was reached stating that closer examination on the reliability of eyewitness testimony needs to occur throughout all the trial courts of New Jersey. Further, in Perry v. New Hampshire (2011), a case which raised similar issues to the New Jersey case, a decision by the U.S. Supreme Court (Weiser, 2011) came down in an 8-1 stand, holding that judicial examination of eyewitness testimony was required only in the case of police misconduct. Perry v. New Hampshire was a United States Supreme Court case regarding the constitutionality of eyewitness identifications.
Held: The Due Process Clause does not require a preliminary judicial inquiry into the reliability of eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement (Perry v. New Hampshire, 2012).
The preeminent role of the jury in evaluating questionable evidence was cited by the court (Liptak, 2012).
In the U.S. Supreme Court case of Manson v. Brathwaite (1977), a federal standard was set forth which stated that this due process statute would govern the admissibility of eyewitness evidence. Under the federal standard, "if an identification procedure is shown to be unnecessarily suggestive, the court must consider whether certain independent factors of reliability are present, and if so, weigh those factors against the corrupting effect of the flawed police procedure" (Liptak, 2012, p. 6). Within that framework, the court should determine whether, under the 'totality of the circumstances', the identification appears to be reliable. If not, the identification evidence must be excluded. In this case, after reviewing the specific facts of the case, the totality of circumstances showed no considerable likeliness of irrevocable misidentification. This case was based on two undercover police officers attempting to make a drug buy for narcotics but using that reasoning to really identify the seller for purposes of charging him. Therefore the evidence should not be excluded. The Court noted "that (for example) if the identification had been made months later (instead of days), then maybe the totality of the circumstances would warrant exclusion" (Liptak, 2012, p. 8). It is the defendant's burden to show that the pre-indictment identification progression was unnecessarily suggestive and that there was substantial likelihood of 'irreparable misidentification' (Manson v. Brathwaite, 1977).
Detailed jury instructions are often proposed by the defense as a tool to even out any unfair or biased reliance on eyewitness testimony, when certain elements that undermine its reliability are present in a particular case. However, in many states, the courts have prohibited such instructions detailing any eyewitness reliability factors but instead allow some form of generic instructions. Others, on the other hand, find that these detailed instructions on specific factors are crucial to a fair trial. "California allows instructions when police procedures are in conflict with established best practices, for example, and New Jersey mandates an instruction on the cross-race effect when the identification is central to the case and uncorroborated by other evidence" (Liptak, 2012, p. 3).
The New Jersey Supreme Court, in a high-profile and precedent-setting decision in August (State v. Henderson), commented that "virtually all of the scientific evidence" that has emerged in recent decades "reveals that an array of variables can affect and dilute memory and lead to misidentifications." That court, as a result, adopted new procedures, including new pre-trial hearings to examine those "variables" when there is some evidence that the circumstances under which the witness made his or her observation were "suggestive" - that is, the identification was in some ways induced either by police or by circumstances - and it also crafted more detailed forms of instructions to help jurors evaluate such testimony more carefully (Zaragoza et al., 2005).
In the case of Perry v. New Hampshire, the U.S. Supreme Court returned to the evidence controversy, in an extremely particular way. The Justices are deciding over the issue of whether the Constitution requires courts to make a more thorough inquiry into the reliability of eyewitness testimony only when it was police manipulation that made the eyewitness identification "suggestive," or whether such an inquiry is required any time there is evidence suggesting that the witness made the observation amid circumstances that were "suggestive."
This is an issue that arises under the Constitution's guarantee of "due process." The Supreme Court has always evaluated eyewitness testimony from the perspective of whether the evidence was reliable, to assure that the evidence that the jury evaluates has integrity. As the Court remarked in 1967, "what is at stake when an eyewitness picks out a suspect as the perpetrator is whether that identification can 'derogate from a fair trial'" (Zaragoza et al, 2005). It was pointed out that this particular scenario can result from a 'suggestive' identification. The Court commented that "suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest" (U.S. v. Wade).
Children's involvement in the judicial process, either as victims/witnesses in criminal cases or as participants in civil proceedings, is often accompanied by questions of their competency and reliability as witnesses (Ceci & Bruck, 1995). Research related to the reliability of children's testimony has focused primarily on children's memory and specifically on their ability to accurately recall and report information as well as on their susceptibility to suggestion (suggestibility). In examining the accuracy of children's testimony, one must consider the relationship between the strengths and limitations of the child as well as characteristics of the interview and of the environment in which questioning occurs, rather than viewing witness competency and reliability as a sole function of the child (Saywitz, 1995).
Many professionals across different fields such as psychology and the social sciences have long assumed that the use of any type of suggestion during a forensic interviews are, and have been, a major source and cause of wrongful convictions and general inaccuracies in eyewitness testimony. Basically, it has been established that children, in general, provide less accurate and complete responses to specific questions as compared to adults for example. This has led to concerns about the reliability of responses in real life investigations. While the basic memory literature suggests that repeated testing (as opposed to saying repeated questioning) can actually have a beneficial effect, however, there is still much concern among professionals as to the effects of repeatedly interviewing an eyewitness, especially a child witness. The main studies that have paved the way for such research have pinpointed a few strong areas in which concern for these effects is illustrated and demonstrated. For one, a juror may wonder why a fact wasn't included in some earlier testimony and may think it was, thus, planted or 'suggested' in the witness memory (Cederborg, Rooy, & Lamb, 2008). The perceived credibility of testimony may also be influenced by consistency in responses to repeat questions even with such evidence and consistency and accuracy having no relationships at all. Finally, it has been assumed that answers to repeat questioning will be less accurate than original answers because witnesses react to the social pressure of repeated questions by offering speculative responses.
It really wasn't until Elizabeth Loftus issued an extremely prominent series of studies on eyewitness suggestibility in the 1970s that a methodical form of scientific writings on this topic started to develop. Since then, hundreds of experiential studies on eyewitness suggestibility have been circulated, all of them variations of the basic experimental model that Loftus established. In the early 1970s, research and theorizing about memory was based almost exclusively on studies of memory for simple processes. "By studying memory for complex, fast-moving, and forensically relevant events (typically depicted in film clips or slide shows), Loftus demonstrated that it was possible to conduct well-controlled experiments that were high in ecological validity" (Zaragoza et al, 1995, p. 370). Loftus' experiments and findings conveyed strong evidence that suggestive interviews can lead to extreme mistakes in eyewitness testimony, thus bringing out serious inquiries about the reliability of memory and eyewitness testimony. Of immense importance here, Loftus' work recognized that scientific investigation on memory and suggestibility can and should advise the courts.
In her 'experimental paradigm', "participants view a slide sequence depicting a complex and forensically relevant event, such as a traffic accident or theft. Immediately thereafter, participants are questioned about the event they witnessed" (Loftus, 1999, p. 60). The relevance and significance of this set-up is the manipulation, which uses questioning techniques that include misleading or leading data given to participants. Eventually, partakers are assessed on their memories for the witnessed event. The variable that is of most importance to these studies is the degree to which misled applicants integrate the misleading suggestions into their eyewitness reports.
Early demonstrations of the effects of leading questions revealed several ways in which eyewitness reports could be influenced. Small changes in answers given from what they actually observed were common, along with specific details in certain cases. Another effect that was noticed was when the participants observed one tangible distinction in a study, like color, but after were told it was actually a different possible color, the mislead information brought out answers that most frequently included a blending of the two possibilities they had seen and heard. Finally, other similar studies demonstrated the ability to misled participants regarding entire objects that were never present but they were led to believe the objects were present (Loftus, 1999).
An important point to be made about Loftus and her studies was in the studies illustrating misinformation and relevancy to courtroom situations. These studies further demonstrated that misinformation was "more likely to influence later testimony when the false information appeared as a presupposition, rather than the direct focus of the question" (Loftus, 2007, p. 7). For example, participants who were directly asked "Did you see a barn in the film?" were much less likely to later claim they had seen a barn than those who'd answered the previous question where the presence of the barn was presupposed (Loftus, 2007).
The "misinformation effect" documented by Loftus (2007), is one of the best-known and most influential findings in psychology. Through the developed misinformation effect paradigm, which demonstrated that the memories of eyewitnesses are altered after being exposed to incorrect information about an event and that memory is highly malleable and open to suggestion (Loftus & Geis, 2009) The misinformation effect became one of the most influential and widely known effects in psychology (Loftus & Geis, 2009), and Loftus' early work on the effect generated hundreds of follow-up studies examining factors that improve or worsen the accuracy of memories, and to explored the cognitive mechanisms underlying the effect. Demonstrations of the surprising ease with which people could be led to report objects and events they had not seen challenged prevailing views about the validity of memory and raised serious concerns about the reliability of eyewitness testimony.
Overall, research suggests that there have been three very significant changes in the direction of the somewhat newer research in children's eyewitness accounts, memory, and suggestibility. For one, younger and younger aged children are being included in the newer studies. Another change is the focus on suggestibility of children, especially when it comes to more salient events that personally affect the child. Finally, the concept of suggestibility and suggestive techniques has been expanded from the traditional view of asking misleading questions or planting the wrong information to using a wider range of interviewing devices that were adapted from actual forensic and therapeutic interviews where children had made allegations towards certain crimes such as abuse.
In some studies, an exploration of the different circumstances in which using repeated questions on children would influence their memory was conducted. They use children of certain ages and after they witness a predetermined event, they are individually interviewed with closed and open type questioning, and also using a free recall test. Based on these studies, the conclusions were that "if closed questions are repeated in a witness interview it may lead to the witness incorrectly assuming that their first response was incorrect; however the findings support the use of repeated questioning as a probe for more information to open-ended questions" (Memon &Vartoukieun, 1996, p. 403).
Another such study based its main focus on other studies researched and examined prior to conducting their own study, on child suggestibility. It indicated that children can easily be led by adults and even recount events that never actually happened, given the suggestions inherent in certain interview questions. Wishing to investigate children's answers to suggestive questions asked by adult interviewers, they conducted a study using a couple of different aged group children and had them witness an event during their class at school. After exactly one week, they were interviewed to determine what they could recall and its accuracy. The authors assume from their research that it is often the case that a cause of child suggestibility can be ascribed to the actual questions adults will ask them. They state that, "questions serve not only to acquire new knowledge, but to influence answers as well, to persuade and to make others say what one wants them to say" (Gulotta & Ercolin, 2002, p. 312). Aside from suggestibility, they also talk about the importance of repeated interviews and how they really can have either a positive or a negative effect on testimony and memory. For example, in some cases, repeating the information helps remember certain details, however, it can also lead children to believe that their first answer was incorrect and so they alter their original statement to try to make it right in their minds. This particular study actually found no significant differences between ages and reliability or correctness of the eyewitness accounts of children (Gulotta, & Ercolin, 2002).
Other studies have attempted to demonstrate how misleading suggestions can impair recollections. Evidence has proven that subjects who experience the three-stage procedure for eyewitness susceptibility to misleading questions most commonly used in research, often error on misled items such as event details when misleading suggestions are given, than on controlled items. Lindsay (1998) explains that this phenomenon is well established, however, its interpretation is not. Two main areas of concern are whether suggestions impair subject's ability to remember event details and whether subjects actually believe they saw the suggested details. Lindsay (1998) defines demand characteristics as "referring to any judgment process that would lead subjects to base their test responses on information they know was obtained from the narrative" (p. 1077). These types of study designs have used factors and practices set up for determining the extent to which demand characteristics contribute to an effect. So, basically, they studies look at the ability to remember the source of suggested details set in opposition to the tendency to report those suggestions (Lindsay, 1998).
It is in my own personal feelings that eyewitness testimony, following from these studies, can be very effective and reliable if the circumstances are used correctly. By this I refer to refraining from unduly used suggestibility and sticking to a formatted forensic interview, standardized for similar situations. Professionals must take care not to bias the interviews and ask certain leading questions, as evidence has continuously proven that such measures do, in many cases, affect the memory and thus the reliability of such testimony.
When expert testimony on the suggestibility of children is offered, the court must consider whether the research the expert will discuss sufficiently fits the facts of the case to be helpful to the jury. Jurors are likely to be influenced by expert testimony even if it fails to fit the facts of the case, in part because they are less adept at detecting a lack of accuracy or honesty, and in part because they naturally assume that an expert testifying for the defense is sympathetic to the defense. Moreover, unlike cases involving adult eyewitnesses, most jurors come to court ready to doubt the reliability of a child witness.
"The child witness presents a double bind for those conducting a forensic interview. Young children produce a higher percentage of accurate and relevant information in a free recall situation in which they are merely asked to tell in their words everything they remember, without prompts, cues, or suggestions. However, preschoolers produce little or no information when simply asked to 'tell us what you remember.' The aggravation of this situations stems from the demonstrated inability of these very young children to use .questions posed to them as clues to what additional information is needed." (Wise & Safer, 2006, p.59).
Most interrogative experiences that children have outside the legal system are not carefully evaluated for consistency or truth value. The adult who asks questions such as "What happened at daycare today?" have a "script" in mind of what occurs during the typical event. Anything the child says that fits the script goes unchallenged. It is usually not important to the adult questioner "whether the child played with Legos today or on some other day, or whether the child played with Legos himself or watched a peer play with them. Courtroom communication differs from everyday conversation in that it is designed to promote shared context to a very high degree" (p. 61). The codes and statutes are available for everyone to read. Evidence is shared through discovery (Wise & Safer, 2006).
Transcripts of depositions and in court testimony include numerous examples of exchanges in which children fail to recognize potential ambiguity. For instance, children often answer embedded questions such as, "Did you or did you notÃ¢â‚¬Â¦?" with "Yes" or "No." "Children try to answer the questions that are posed to them, even when they are not precisely sure what information is being requested. In such situations, the miscommunication problem can be masked by the adult assumption that what people say is going to be relevant. Most conversational responses could be interpreted in a variety of ways if they were context free" (Wise & Safer, 2006, p. 67). The success of communication requires that we interpret what is said as if it is relevant in the present dialogue context. If the context of very young children is characteristically deviating from the adult context, that interpretation may be in error.
Studies have displayed with particular importance, the determination of judges' knowledge about a wide range of factors and procedures that affect eyewitness accuracy. Research has also shown that expert testimony is the only legal safeguard that is effective in sensitizing jurors to eyewitness factors. Nonetheless, the most common reason judges give for excluding eyewitness expert testimony at trial is that the expert's testimony is within the knowledge of the jury and, therefore, "would not assist the trier of fact."
So basically, there is a need to assist in identifying some of the elements of eyewitness testimony where judges need additional training. There is also a need for some indication of how accurately judges perceive jurors' knowledge of eyewitness testimony, and how easily judges are in allowing legal safeguards, including expert testimony. A main problem with simple experts testifying is that they often make open and wide ranging claims about the unreliability of children, or report the results of research without describing the methodology or the possible limits of the research's applicability to the real world.
Consider one of the most often cited studies demonstrating the suggestibility of children-the Sam Stone study, which was published in Developmental Psychology, a peer-reviewed scientific journal of the American Psychological Association. The study showed that a combination of suggestive "interviewing techniques led 72% of younger children to assert falsely that a stranger named Sam Stone had come to their preschool and committed various misdeeds" (Saywitz & Camparo, 2009, p. 109). Children often exaggerated their false accounts with sensory details and nonverbal gestures, making their reports highly credible. Experts often cite the study as evidence that children can be led to make false yet highly convincing allegations of sexual abuse.
Closer examination reveals the lengths to which the researchers worked to obtain false reports, and the extent to which false allegations of sexual abuse are less likely in the real world. One of the suggestive techniques the researchers used was "stereotype induction," which they analogized to negative statements that adults might make about an ex-spouse. "Researches assistants visited each child on four consecutive weeks before Sam Stone came to the preschool, and provided the child with details of 12 different misdeeds that the assistants had purportedly witnessed Sam perform. Sam Stone's visit was two minutes long, and he did not interact with individual children" (Saywitz & Camparo, 2009, p. 109). Another suggestive technique the researchers used was suggestive questioning.
"For four weeks after Sam's visit, an interviewer questioned each child each week. In the first interview, the interviewer showed the child a soiled teddy bear and a ripped book and asked the child to speculate who might have done it. In the next three interviews the interviewer asked a series of highly suggestive questions. These questions presupposed that Sam Stone had ripped the book or soiled the teddy bear, did not give the child an opportunity to deny that he had done so, and asked the child to choose among details of the fictitious events. Ten weeks later, all children were interviewed in a non-leading fashion. At that time, 72% of the three and four year olds implicated Sam in one or both misdeeds" (Saywitz & Camparo, 2009, p. 110).
The Sam Stone study illustrates a number of important facts about suggestibility research. First, there are large age differences in suggestibility. Second, children are both suggestible and counter-suggestible. Researchers often fail to test the persistence of their suggestions; Sam Stone is an exception, and dramatically reduced the number of false reports. Third, much of the suggestibility research elicits false narratives from young children by telling them that the events occurred (as opposed to merely asking them), and by providing them with details with which they can imagine the events. Indeed, these are the techniques researchers have used to create substantial numbers of false childhood memories in adults. But the issue is not whether children can be led to make false allegations, but whether they are being led by current investigative methods (Saywitz & Camparo, 2009).
Leichtman and Ceci asserted that the techniques in the Sam Stone study were based on "real-world forensic conditions."
"In my 1999 paper, I questioned the applicability of the Sam Stone study and other studies to the real world, pointing out that the research on actual interviews had not documented the widespread use of techniques such as stereotype induction. What had been documented was that interviewers were asking very few open-ended questions, and relying heavily on closed ended questions (yes-no questions and forced-choice questions). Closed-ended questions are often considered 'leading', and I believe they are being overused. In my presentations to child interviewers, I emphasize the need for structured interview protocols and the potential benefits of rapport building and greater use of open-ended questions as means of increasing information without reducing reliability" (Leichtman & Ceci, 2002, p. 131).
All the same, closed-ended questions are far less suggestive or leading than the kind of questions asked in studies like Sam Stone. They are less offensive than many of the techniques documented in the notorious day-care. Closed-ended questions are also necessary in some cases. Abused children are often quite reluctant to describe abuse that was painful, shameful, and embarrassing.
We clearly need to improve the quality of interviewing: we should provide more training, more supervision, and more resources. The solution is quite straightforward: judges must take care to assess the applicability of suggestibility research on a case-by-case basis. Experts seeking to testify must describe the research with sufficient specificity to allow the court to assess whether the research fits the fact of the case. If it doesn't fit, you don't admit. Similarly, suggestibility research offered for other purposes (such as for assessing the reliability of hearsay) should be scrutinized with similar care. Judges should keep in mind the importance of the child's age, the suggestive influences at issue, and the relationship of the child to the alleged offender. Through judicious gatekeeping, extremist claims about suggestibility can be kept out of the courtroom.
The bottom line that needs to be addressed with this controversy is that anyone, not just children, can be suggested and misled. The importance of retrieval and memory coding strategies can affect all people on the witness stand, leading to the misinterpretation of a statement that has been made by a witness. Studies have concluded through suggestive interviewing techniques and repeated questioning; people can be led to make untrue statements about central and peripheral details of an event. This often happens with children due to the fact that from a child's point of view, if he/she keeps getting asked certain questions over and over again, they seem to think that they are answering in a wrong way. Interviewer bias (this can be parent, therapist, or investigator) can also effect eyewitness statements as well. When an interviewer believes that they know what really happened during an event, it can be likely that the interviewer will attempt to get the child to confirm this event, ignoring anything that the child says that does not conform to this bias, while encouraging anything that does. Stereotype induction can also occur with children's eyewitness accounts due to the fact that an interview can depict the accused perpetrator as a "bad man". It has been shown that children can come to assume and report negative things about someone that they had previously heard described in negative terms. Encouraging a child to visualize or imagine has also been proven to be detrimental to the providing of accurate information about an event. Authority figures and peer pressure are also factors that can mislead a child's memory strategies as well.
When all of these circumstances are taken into account, it is easy to see how influenced children can be when it comes to relaying information. But this should not be a final factor when deciding children's influence in the courtroom. As stated before, anyone can be suggested, misled, and pressured, including adults, and studies have shown this. This data shows a need for the standardization of interviewing techniques when deciding eyewitness accounts. It is well known that children encode, store, retrieve, and retain memories differently than adults. But it is up to a qualified interview to release these memories in a positive way. The knowledge base that children use to understand their surroundings and situations can be investigated through proper interviewing and strategies that children are familiar with, such as drawing or play therapy. In many cases of falsified accounts that children have stated, it is often the case that the interviewer used misleading techniques, and unstandardized means of approaching this information. Studies have shown that when children are asked questions in neutral ways, with open ended questions, and unbiased interpreters, their statements were not only more detailed, but also remarkably accurate. Children who were left to answer in any fashion, with no time frame, answered questions in a precise and errorless manner.
So the question remains, Can we rely on children? Under unbiased, highly trained, standardized ways of interviewing, the most reasonable and simple answer is yes. Clinicians who have had the training necessary to evaluate and judge are completely capable of interviewing these children because children are indeed competent and qualified to testify on the witness stand. Open ended questioning, yes-no questioning, selective questioning (man or woman) and identification questioning (what time was it?) are key ways of interviewing to provide for accurate recollection. And when a child is asked these questions in a neutral way, you can believe that they are telling the truth
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