The Laws Treatment of Child Witnesses

In the wake of the McMartin case, an important series of changes in the law's approach to CSA consists of certain procedures whose objective is to ensure that child victims and witnesses can provide their testimony in atmospheres that are as supportive as possible. Those changes fall into three categories, the first two of which are uncontroversial: (1) to take testimony in rooms that are pleasant and child friendly, rather than in the usual formal and austere courtroom; and (2) to simplify the children's participation in the pretrial investigative phase, especially by limiting the number of times that they can be interviewed and reinter-viewed by police and attorneys. The third and more controversial change was to reduce the criminal law's normal barriers to presenting evidence against defendants in forms other than testimony. This change has been controversial because it permits evidence such as sworn testimony by people other than child victims about acts of CSA that have been reported to them by alleged victims, as well as records of statements that have been made by alleged child victims prior to trial in informal, unsworn circumstances.

The controversy stems from the fact that, to many observers, although this change is intended to ensure that reliable memory reports that children have made at some prior time are not excluded from evidence (a false-negative error), they also ensure that tainted reports that children have made are admitted in evidence (a false-positive error). For instance, the third change permits hearsay testimony. Although hearsay is generally prohibited in criminal trials, the prohibition is not absolute. To illustrate, deathbed statements that are made to third parties by witnesses are often admissible when they go directly to guilt or innocence, as are statements that have been made to third parties by witnesses who are unavailable by reason of incapacity or whose whereabouts are unknown. The third change in CSA extends the hearsay waiver. However, the third parties to whom children have made allegations of abuse are not trained interviewers who are knowledgeable with respect to scientific findings on the effects of how children are questioned. They may unknowingly taint children's reports. Moreover, research has shown that adults who question children in suggestive and otherwise inappropriate ways are not very good at remembering just how suggestive they were when they are subsequently asked about it (Warren & Woodall, 1999; Brainerd & Reyna, 2005). Hence, one cannot trust cross-examination to reveal that reports may have been tainted by inappropriate questioning procedures, and cross-examination can itself create further inaccuracies in children's reports (Zajac & Hayne, 2003, 2006; Zajac, Gross, & Hayne, 2003).

A similar problem arises in connection with the other consequence of this change. A fundamental principle of criminal procedure is that defendants are able, through their attorneys, to confront and challenge the testimony of the witnesses against them. This is done through cross-examination. That is, through cross-examination, attorneys attempt to provide evidence to the jury in the witnesses' own words that their prior testimony is flawed. Video or audio recordings cannot be cross-examined. The best one can hope to do is to present other evidence, in the form of expert scientific testimony or closing arguments, that there is reasonable doubt as to the reliability of the information in those recordings, which is a much weaker and less-convincing tactic than using witnesses' own words to impeach their testimony.

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