Children as reliable witnesses

Assumptions of unreliability

14.15 The common law in Australia has traditionally viewed children as unreliable witnesses. The perception has been that children are prone to fantasy, that they are suggestible and that their evidence is inaccurate. The following statement by a prominent legal scholar typifies the prejudices and assumptions about children's evidence.

First, a child's powers of observation and memory are less reliable than an adult's. Secondly, children are prone to live in a make-believe world, so that they magnify incidents which happen to them or invent them completely. Thirdly, they are also very egocentric, so that details seemingly unrelated to their own world are quickly forgotten by them. Fourthly, because of their immaturity they are very suggestible and can easily be influenced by adults and other children. One lying child may influence others to lie; anxious parents may take a child through a story again and again so that it becomes drilled in untruths. Most dangerously, a policeman taking a statement from a child may without ill will use leading questions so that the child tends to confuse what actually happened with the answer suggested implicitly by the question. A fifth danger is that children often have little notion of the duty to speak the truth, and they may fail to realize how important their evidence is in a case and how important it is for it to be accurate. Finally, children sometimes behave in a way evil beyond their years. They may consent to sexual offences against themselves and then deny consent. They may completely invent sexual offences. Some children know that the adult world regards such matters in a serious and peculiar way, and they enjoy investigating this mystery or revenging themselves by making false accusations.[46]

This view was reflected in rules of evidence that limited children's competence to give evidence and required corroboration and judicial warning in relation to children's evidence.

14.16 Traditionally, rules of competence required that a child possess sufficient understanding of the nature and consequences of an oath before being able to give sworn evidence.[47] The common law approach demanded that the child demonstrate a belief in God and divine vengeance, a formulation arising from eighteenth century cases.[48] This approach effectively discriminated against children who did not have any particular religious beliefs or who adhered to religious beliefs that did not include a single deity or punishment for wrong-doers.

14.17 In addition, until recent amendments to the rules of evidence, the law in all States and Territories required that, where the child was incapable of giving sworn evidence, any unsworn evidence of the child had to be corroborated before a criminal conviction could be sustained.[49] A child's unsworn testimony was capable of corroborating another child's sworn testimony but the unsworn testimony of one child could not corroborate the unsworn testimony of another child.[50] This rule meant that several young children abused by one person could not give unsworn evidence to corroborate each other.

14.18 The law in all Australian jurisdictions until recently also required that judges warn juries that it was dangerous to convict on the uncorroborated evidence of a child, even when the child witness was deemed capable of giving evidence under oath.[51] Warnings of this kind had the effect of labelling children as an unreliable class of witnesses.[52] Juries were likely to take the warning as a hint from the judge to acquit where, as often happens when a child is the victim of abuse, the child was the only witness to the incident.[53]

Children as witnesses: recent research

14.19 Recent research into children's memory and the sociology and psychology of disclosing remembered events has established that children's cognitive and recall skills have been undervalued.[54] At the same time other research has demonstrated that adult testimony is not always reliable, showing that mature witnesses' memories can be equally fragile and susceptible to the distorting influences of suggestion and misinformation.[55] The presumed gulf between the reliability of evidence from children and that from adults appears to have been exaggerated.[56]

14.20 Children, including very young children, are able to remember and retrieve from memory large amounts of information, especially when the events are personally experienced and highly meaningful.[57] However, children, and adults to a lesser degree, have significant memory loss after long delays. They recall less correct information over time while maintaining as a constant the inaccurate information.[58] Studies demonstrate that ability to remember and describe an event accurately, both at the time of questioning and at later dates, can be dependent on interviewing method.

14.21 Interviews, if skilfully conducted, can help both child and adult witnesses to consolidate and retain their memories.[59] However, using misleading and suggestive questioning techniques during an interview adversely affects young children's ability to recall an event accurately, just as to a somewhat lesser degree it adversely affects older children and adults.[60] Repeating a question within a single interview session can also lead to young children changing their answer to that question, perhaps because they interpret the repetition of the question as an indication that their first answer was wrong.[61] In addition, when young children are asked to recount, in a free recall narrative, everything they remember, they typically remember less detail than older children or adults, although the information they do recall is generally just as accurate.[62] More details of the events can be recalled during questioning that provides non-leading cues to memory for those details not spontaneously supplied.[63]

14.22 Recent studies have also examined whether children are able to distinguish fact from fantasy or whether they have a propensity to lie deliberately about events that did not occur. This research has found that children are often as accurate as adults at discriminating the origins of their memories.[64] In addition, there is no psychological evidence that children are in the habit of fantasising about the kinds of incidents that might result in court proceedings[65] or that children are more likely to lie than adults.[66] Indeed, research suggests that children may be actually more truthful than adults. Certainly, the research on children's beliefs about court proceedings implies that children may be more cautious about lying in the witness box than adult witnesses.[67] When children do lie to an adult, the adult is usually well able to discern this, particularly with younger children.[68]

14.23 Ironically, research indicates that the major problem with children's evidence is not the risk of a child making false allegations, although this is still a possibility. Rather the major problem is their significant level of false denials and retractions. While children can be encouraged to say that an event occurred knowing full well that it did not, this is difficult to do. When children do make false statements at the encouragement of others, the statements are often not very credible and these children rarely persist with their made up story.[69] On the other hand, to avoid punishment, to keep promises not to tell or to avoid revealing embarrassing information, most children will deny knowing information about an event that they know occurred.[70]

14.24 Difficulties can also arise when children are questioned about particular times and dates. This is particularly problematic for younger children who have not yet learned to tell time on a clock, who may confuse calendar dates or who have trouble reporting events in exact chronological order.[71] These children may report events out of order or be unable to give a particular date or time. However, this does not have any bearing on the accuracy of the description of the event reported.[72]

Implications for investigations and courtroom encounters with child witnesses

14.25 The research on children's memories and their reliability has important implications for the way in which child witnesses are interviewed during pre-trial investigations and questioned in court. The quality of a child witness' evidence can depend on the communication skills and expertise of the interviewer and/or the questioner in court. Legal processes can and should be modified to ensure that, as far as possible, child witnesses can give reliable, comprehensive information as required.

[46] J Heydon Evidence: Cases and Materials 2nd ed Butterworths London 1984, 84.

[47] R v Brasier (1779) 1 Leach 199. This view was adopted by the High Court in Cheers v Porter (1931) 46 CLR 52 and has been followed in R v Brown (1977) Qd R 220 (CCA) and R v Schlaefer (1992) 57 SASR 423 (CCA).

[48] R v Braiser (1779) 1 Leach 199; Omychund v Barker (1744) 1 Atk 21.

[49] M Aronson & J Hunter Litigation: Evidence and Procedure 5th ed Butterworths Sydney 1995, 740.

[50] DPP v Hester (1973) AC 296; DPP v Kilbourne (1973) AC 729; R v Schlaefer (1992) 61 A Crim R 1.

[51] D Byrne & J Heydon Cross on Evidence Aust ed Butterworths Sydney 1996, para 15 140.

[52] M Aronson & J Hunter Litigation: Evidence and Procedure 5th ed Butterworths Sydney 1995, 740, 744.

[53] JR Spencer 'The English legal system' in K Murray & DA Gough (eds) Intervening in Child Sexual Abuse Scottish Academic Press Edinburgh 1991, 89.

[54] JR Spencer & R Flin The Evidence of Children: The Law and the Psychology Blackstone Press London 1990, 238.

[55] ibid.

[56] ibid.

[57] S Ceci & M Bruck 'Suggestibility of the child witness: A historical review and synthesis' (1993) 113 Psychological Bulletin 403, 434.

[58] D Poole & L White 'Tell me again and again: Stability and change in the repeated testimonies of children and adults' in M Zaragoza et al (eds) Memory and Testimony in the Child Witness Sage Publications Thousand Oaks 1995, 24; JR Spencer & R Flin The Evidence of Children: The Law and the Psychology Blackstone Press London 1990, 249–251.

[59] D Poole & L White 'Tell me again and again: Stability and change in the repeated testimonies of children and adults' in M Zaragoza et al (eds) Memory and Testimony in the Child Witness Sage Publications Thousand Oaks 1995, 30–31. See also C Brainerd & P Ornstein 'Children's testimony: the developmental backdrop' in J Doris (ed)The Suggestibility of Children's Recollections American Psychological Association Washington 1990.

[60] S Ceci & M Bruck 'Suggestibility of the child witness: A historical review and synthesis' (1993) 113 Psychological Bulletin 403, 434. See also G Davies et al 'Close encounters of the witness kind: Children's memory for a simulated health inspection' (1989) 80 British Journal of Psychology 415; J Bringham et al 'Accuracy of children's eyewitness identifications in a field setting' (1986) 7 Basic and Applied Social Psychology 295. The rate of error appears to be directly related to the complexity of the questions posed: G Goodman et al 'Child sexual and physical abuse: Children's testimony' in S Ceci et al (eds) Children's Eyewitness Memory Springer-Verlag New York 1987, 1; MA King & JC Yuille 'Suggestibility and the child witness' in S Ceci et al (eds) Children's Eyewitness Memory Springer-Verlag New York 1987, 24.

[61] WS Cassel & DF Bjorklund 'Age differences and suggestibility of eye witnesses' Paper Children's Memory for Real World Events: Implications for Testimony Symposium conducted at annual meeting of the Conference on Human Development April 1992.

[62] G Goodman et al 'Children's concerns & memory: Issues of ecological validity in the study of children's eyewitness testimony' in R Fivush & J Hudson (eds) Knowing and Remembering in Young Children Cambridge University Press Cambridge 1990, 249; G Davies et al 'Close encounters of the witness kind: Children's memory for a simulated health inspection' (1989) 80 British Journal of Psychology 415.

[63] G Davies et al 'Close encounters of the witness kind: Children's memory for a simulated health inspection' (1989) 80 British Journal of Psychology 415; J Bringham et al 'Accuracy of children's eyewitness identifications in a field setting' (1986) 7 Basic and Applied Social Psychology 295.

[64] S Lindsay & M Johnson 'Reality monitoring and suggestibility: Children's ability to discriminate among memories from different sources' in S Ceci et al (eds) Children's Eyewitness Memory Springer-Verlag New York 1987, 103–107. In these studies, however, the actions performed bore little resemblance to the typical events of a crime and, combined with the fact that children were instructed to imagine rather than using spontaneous imagination, the applications of this research to child witnesses is limited. eg, children were asked to touch their nose or imagine touching their nose, to watch a girl touch her nose or to imagine the girl touching her nose: JR Spencer & R Flin The Evidence of Children: The Law and the Psychology Blackstone Press London 1990, 258.

[65] JR Spencer & R Flin The Evidence of Children: The Law and the Psychology Blackstone Press London 1990, 259.

[66] id 270.

[67] ibid.

[68] ibid.

[69] K Bussey et al 'Lies and secrets: Implications for children's reporting of sexual abuse' in G Goodman & B Bottoms (eds) Child Victims, Child Witnesses: Understanding and Improving Testimony Guilford Publications New York 1993, 154–155.

[70] S Ceci & M Bruck 'Suggestibility of the child witness: A historical review and synthesis' (1993) 113 Psychological Bulletin 403, 425–427.

[71] K Saywitz 'Improving children's testimony: The question, the answer and the environment' in M Zaragoza et al (eds) Memory and Testimony in the Child Witness Sage Publications Thousand Oaks 1995, 113, 121–122.

[72] ibid.