The Child as a Witness

(1)

PEDIATRICS Vol. 89 No. 3 March 1992 513

The

Child

as a Witness

Committee on Psychosocial Aspects of Child and Family Health

In the last two decades, there has been a dramatic

increase in the recognition and reporting of child

physical and sexual abuse. This, coupled with the

current 50% divorce rate and the fact that many of

these separations involve child custody decisions, has

led to an increasing need for children to appear in

court.

Custody decisions usually involve family or civil

courts; however, allegations involving sexual abuse

may require a child to appear as a witness in criminal

court. Although the procedures and potential

conse-quences of these legal processes are quite distinct, all

situations in which children offer testimony can be

quite stressful and merit the awareness and support

of pediatricians.

Pediatricians can become involved with children

who are to be witnesses at several levels, including: 1) supporting patients in the pediatric office; 2) par-ticipating in legal proceedings; and 3) advocating for legal reform.

SUPPORT IN THE PEDIATRIC OFFICE

The pediatrician is an important source of support

for the child who is to be a witness, from the initial

contact through preparation for court appearance,

and after the court proceedings. A pediatrician should

attempt to keep the legal process in the child’s best

interest and should help the child maintain a healthy adaptation to a stressful experience. The pediatrician

should also address the psychological impact of the

event responsible for the child’s court appearance.

When parents plan to separate, pediatricians may

help the family by discussing living arrangements

and visitation during an office visit. If custody is

disputed, which is the case in 10% of divorces, and a

child is asked to appear in family court, the pediatri-cian can provide counseling to help prepare the child for the court appearance. If sexual abuse is suspected, the case will involve the criminal justice system, and a pediatrician is often the first person contacted. In such cases, the pediatrician needs the skills to

sensi-tively and appropriately interview, examine,

docu-ment, report, and provide ongoing counseling for the

child. The pediatrician also needs to have knowledge

of behavioral and physical indicators of abuse and of

variations and current trends in sexually transmitted

This statement has been approved by the Council on Child and Adolescent

Health.

The recommendations in this publication do not indicate an exclusive course of treatment or serve as a standard of medical care. Variations, taking into

account individual circumstances, may be appropriate.

Acad-emy of Pediatrics.

diseases.’ In one study of sexually abused children, more than half of the children were involved in court

cases, and 15% were asked to testify.2

Separate attention must be devoted to preparing a child for the stress that accompanies a legal hearing. Appearances in family court are often in the judge’s chambers and are markedly different from criminal court experiences in which child witnesses may be examined for weeks by defense attorneys. Pediatri-cians can help prepare children for court appearances

by explaining what will occur and that the child will

always be accompanied by a supportive person, such

as a parent. Pediatricians must be aware of children’s

concerns about recrimination. A pediatrician can help

minimize a child’s anxiety by explaining that the child will not be judged on his/her performance in the

courtroom, that efforts will be made to ensure that

the child will be safe from recrimination, and that the child should answer questions to the best of his/her

ability.

Because of the stressful events leading up to and surrounding a court appearance, a follow-up visit with the pediatrician is indicated after a child appears

as a witness. Children should be checked for

behav-ioral manifestations of acute stress (sleep disorders,

somatic complaints), adjustment, and functional

sta-tus (school activities, resumption of usual activities, physical functioning, social functioning, mental health).

One study has shown that participating in legal

proceedings may actually benefit a child

psychologi-cally.2 The study showed that waiting for court

pro-ceedings was likely to prolong depression in sexually abused children, whereas testifying helped decrease children’s anxieties.

PARTICIPATION IN LEGAL PROCEEDINGS

While the pediatrician’s principal role is to support and help the child and family cope with the stresses

of being involved in legal procedures, some

pediatri-cians will choose to use their knowledge and spirit of

advocacy to help with their patients’ trial processes, or to serve as experts testifying on children’s cognitive abilities. Pediatricians may also be asked to testify

based on their knowledge of and relationship with

the child.

Setting and Support

All children should have a supportive individual

present during court proceedings to explain

proce-dures, assist the child and parents, and provide sup-port by advising the court of the child’s needs. The courtroom and/or proceedings can also be adapted to

at Viet Nam:AAP Sponsored on September 1, 2020

www.aappublications.org/news

(2)

514 CHILD AS A WITNESS

make the legal process more comfortable for the child. Specific adaptations include exclusion of spectators,

use of videotaped or closed circuit testimony, use of

child-size furniture, and eye-level interviewing. How-ever, a recent Supreme Court decision that affirmed the right of defendants in abuse cases to face their

accusers has raised questions about accommodations

provided by many state laws to protect children by

using videotape.3

Interview

The purpose of interviewing a child in legal

pro-ceedings is to obtain accurate information. The

set-ting, support persons, and interviewer’s skills will

influence the likelihood of success in accomplishing

this task. A supportive environment is essential for

two reasons: 1) so that the best interest of the child is

served and the child is not subjected to undue stress,

and 2) because the anxiety or emotional difficulties a

witness feels due to the stress of a court appearance

can hamper the process of obtaining valid and reliable information.

Individuals experienced in developmentally appro-priate interactions should be involved. A variety of

interviewing techniques may be appropriate,

includ-ing use of behavioral observation techniques, play,

story telling, and drawing, as well as verbal question-ing. The use of a single, well trained interviewer

capable of building rapport will enhance the process

and minimize trauma to children. However, none of these techniques is completely accurate in

determin-ing whether a child may have been abused.4’5

Principles of interviewing that apply to children in the office apply to children in the courtroom. These include building rapport and asking clear, simple

questions. For children testifying in abuse cases, a

time for ‘warm-up’ is especially important. Question-ing should be general at first and should gradually

become more specific.

Children may be confused by negatively worded

statements. They may also be eager to please, anxious

to provide the ‘right’ answer, and may have a

tend-ency to choose either the first or the last option when

given a number from which to select. Therefore, it is

essential that clearly worded questions that encourage children to provide answers that will be viewed

non-judgmentally are used. Correct answers or scenarios

should not be suggested as children may be influ-enced and are prone to suggestibility.

Determining Competence

The legal system is especially interested in three

questions about a child’s competence as a witness: 1)

Can the child receive and relay information

accu-rately? 2) Does the child know the difference between

telling the truth and a lie? 3) Does the child under-stand the need to tell the truth in court?

For adults, lying is an intentional deception that

involves either concealing or falsifying information

directed at an unsuspecting individual.6 Deception, as a developmental concept, has been studied exten-sively in young children, as has lying.4’79 Ekman has classified the reasons children lie. They include ‘to avoid being punished; to get something you couldn’t

get otherwise; to protect friends from trouble; to

protect yourself or another person from harm; to win

the admiration or interest of others; to avoid creating an awkward social situation; to avoid embarrassment;

to maintain privacy; and to demonstrate your power

over an authority.’4

When assessing the validity of information

pro-vided by children, many factors must be considered.

Younger children may not remember with as much

accuracy as older children, but the poignancy of an

event may enhance memory.7’8 A 3- or 4-year-old’s

ability to recall major events is excellent, although less important information is less well remembered.

Three-year-olds have actually been effective

wit-nesses.’#{176}A lack of accuracy may be due to the

follow-ing:

1. poor recall of event or sequences in an event

2. misinterpretation or confusion around an event

3. suggestibility

4. delusion or other mental disorder 5. mental retardation

6. intentional deception initiated by the child or re-suiting from adult coercion.

Older children, who are capable of understanding

the meaning of a lie, may be coerced into falsification

by adults who label the action an act of secrecy. The

child may conceptually consider a lie and a secret as

two separate entities and, therefore, may not feel a

lie is actually being told. Alternatively, children may be convinced that when a lie serves ‘a noble purpose’

they are not really doing something wrong.

The amount of literature that addresses the

accu-racy of children as witnesses is growing.4’9’6

ADVOCATING LEGAL REFORM

Finally, pediatricians may wish to collaborate with

other professionals to improve the legal procedures and policies for examining children.

Treating children sensitively throughout the

pre-trial period, along with the court’s increased

sensitiv-ity to the special needs of children, will help make

the legal examination easier for children. Specific

actions that can be helpful include educating judges

to be alert to lines of questioning that may confuse or

intimidate a child. They must recognize signs of em-barrassment or anxiety that may cloud or confuse a

child’s testimony and must take the initiative to help the child. For instance, a judge could call a recess to

explore a child’s discomfort.

It has been recommended that statutory reforms might be helpful. Possible reforms include: 1) abol-ishing competency requirements. Although state laws

vary widely, traditionally, children have not been considered competent witnesses. Adoption of the

more liberal Federal and Uniform Rules of Evidence, which allow children to testify and permit the trier of fact to determine the weight and credibility of the

testimony, would facilitate justice in cases involving children. 2) Authorizing special hearsay exceptions for child sexual abuse victims. This would enable the child’s statements to others, such as pediatricians and social workers, to be admitted as evidence.

(3)

AMERICAN ACADEMY OF PEDIATRICS 515

Perhaps it is most important for pediatricians to

understand the current rights of children in their

states’ legal systems so they can advise children and

parents in their offices and determine what reforms

may be needed in their states. Many states have made

major legal strides in treating children sensitively as the following California codes illustrate: i) ‘Every person, irrespective of age, is qualified to testify. . .‘;

2) ‘The court should support, comfort, and protect

child witnesses.’; 3) ‘Up to two supporting persons

in the courtroom are allowed for any child under i6.’; 4) ‘The court is to take special care to protect the child

from embarrassment and restrict the unnecessary

rep-etition of questions.’; 5) ‘The intent and purpose of

the Legislature is to protect children from abuse. In

any investigation of suspected child abuse, all persons

participating in the investigation of the case shall

consider the needs of the child victim and shall do

whatever necessary to prevent psychological harm to

the victim.’; 6) ‘Contemporaneous closed circuit

tel-evision testimony is allowed in criminal prosecution.’

This last accommodation may need to be reviewed

based on the Supreme Court’s recent decision to

affirm the ‘right to confrontation’ of the Sixth

Amendment. Nevertheless, in a concurring opinion,

Justice O’Conner suggested that the ‘compelling state interest of protecting a child witness’ would allow for case-by-case decisions.3

In addition, it is possible for pediatricians to advo-cate for limiting the duration and frequency of child

interviews, to recommend that professionals

compe-tent in child interviewing question witnesses, and to

urge for expedient trials in abuse cases in order to

hasten the child’s healing process. Judges also have

considerable discretion to exclude spectators from

trials. Many other modifications in legal proceedings

for children have been recommended (AACAP).’7

Attempts to protect children from the stresses of a

trial will continue to conflict with the rights of the accused to face an accuser and to have cross-exami-nation of witnesses. We, therefore, anticipate that it will be necessary for pediatricians to engage in both

ethical and legal debates in the process of working

toward legal reform in the criminal court system.

Nevertheless, all of the recommended

accommoda-tions can occur in civil, family, and juvenile courts.

SUMMARY

i. Children are often involved with the courts in

cases of abuse and custody dispute and may be

required to be witnesses.

2. Pediatricians have important roles in assisting

chil-dren by providing psychosocial support for the

precipitant life event and the event of subsequent appearance in court.

3. A pediatrician also may be able to contribute to a

child’s adaptation by advocating for accommoda-tions in the legal process that are in the child’s best interest.

COMMrI-rEE ON PSYCHOSOCIAL ASPECTS OF CHILD

AND Finx HEALTH, 1991 TO 1992

Robert Pantell, MD, Chair William B. Carey, MD Stanford B. Friedman, MD Michael S. Jellinek, MD Lucy Osborn, MD Ellen C. Perrin, MD Martin T. Stein, MD Mark L. Wolraich, MD Liaison Representative Mervyn Fox, MD,

Canadian Paediatric Society Consultants

John B. Reinhart, MD

George J. Cohen, MD

National Consortium for Child

Mental Health Services REFERENCES

I. American Academy of Pediatrics, Committee on Child Abuse and

Ne-glect. Guidelines for the evaluation of sexual abuse of children. Pediat-rics. 1991;87:254-259

2. Runyan DK, Everson MD, Edelsohn GA, Hunter WM, Coulter ML. Impact of legal intervention on sexually abused children. JPediatr. 1988;1 13:647-653

3. Coy v Iowa,487 US 1012 (1988)

4. Ekman MAM. Kids’ testimony in court: the sexual abuse crisis. In: Edman P, ed. Why Kids Lie. New York, NY: Scribners; 1989

5. Faust D, Ziskin J.The expert witness in psychology and psychiatry. Science. 1988;241:31-35

6. Edman, P. Telling Lies: Clues to Deceit in the Marketplace, Politics. and Marriage. New York, NY: WW Norton & Company; 1985

7. Johnson MK, Foley MA. Differentiating fact from fantasy: the reliability

of children’s memory. ISoc Issues. 1984;40:33-50

8. Loftus EF, Davies GM. Distortions in the memory of children. JSoc Issues. 1984;40:51-67

9. Nurcombe B. The child as witness: competency and credibility. JAm Acad Child Psychiatry. 1986;25:473-480

10. Jones DPH, Krugman RD. Can a three-year-old child be a witness to her sexual assault and attempted murder? Child Abuse NegI. 1986;10:253-258

I 1. Berliner L, Barbieri MK. The testimony of the child victim of sexual

assault. ISoc Issues. 1984;40:125-137

12. Goodman GS. Child witness: an introduction. JSoc Issues. 1984;40:1-7 13. GOOdWin J, Sahd D, Rada RT. Incest hoax: false accusations, false

denials. Bull Am Acad Psychiatry Law. 1978;6:269-276

14. Green AH. True and false allegations of sexual abuse in child custody disputes. JAm Acad Child Psychiatry. 1986;25:449-456

15. Landwirth J.Children as witnesses in child sexual abuse trials. Pediatrics. 1987;80:585-589

16. Whitcomb D, Shapiro ER, Stellwagen LD. When the Victim Is a Child: Issues for Judges and Prosecutors. ABT Associates, Inc; 1985. Sr. Doc. No.

J28.23:V66. Dept of Justice, 86-5135

17. American Academy of Child and Adolescent Psychiatry. Statement on Protecting Children Undergoing Abuse: Investigations & Testimony. February 9, 1986

(4)

1992;89;513

Pediatrics