Can children provide reliable eyewitness testimony?

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Modified: 3rd Jan 2022
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A question that is repeatedly asked of the criminal justice system, is whether a child can provide a reliable eyewitness testimony. Throughout the years there has been plenty of research, arguments and study done on this topic all throughout the world. This essay will look at the topic meticulously and will determine if children can provide a reliable eyewitness testimony and whether children are permitted to present a eyewitness testimony. Firstly, this essay will describe an eye witness alongside an eyewitness testimony. Secondly, this essay provides a summary of how an eyewitness testimony from a child can be used in the criminal justice system within Australia. Thirdly, this essay will supply evidence regarding how reliable evidence from children can be. Fourthly, this essay discusses the concerns with eyewitness testimony from children and how evidence can be further dependable in regards to children giving evidence.

Finally, The essay will argue that the child's eyewitness testimony can be taken into account if they are questioned correctly and understand the nature of the enquiry.

Firstly, This essay describes an eyewitness and a eyewitness testimony. An eyewitness is a person who actually sees an act or occurrence and can give a firsthand account of it, and can offer important information. An eyewitness testimony can be very essential as it supplies information about the case from a bystanders or victims perspective in the courtroom. Although when it comes to an eyewitness testimony, this is not always definite and dependable.

Succeeding, this essay will detail how the criminal justice system in Australia can use an eyewitness testimony from a child's perspective.

Most Australian jurisdictions considers those not competent who are of a certain age to not be capable to supply sworn evidence. Territory and State legislation include a fixed age in which children are considered incompetent to give evidence, Although Judicial determination can over rule a child's competency to supply the court with evidence. The children who are under the age of fourteen years old will be assessed by the judge and interviewed which will give the judge an idea whether the child understands the oath. Understanding of the oath will classify that the child's evidence is accepted with the same values as an adult's. Not understanding the oath will then force the judge to determine the child's intelligence, and whether the child is able to acknowledge questions and answer them correctly. Unable to fathom the questions, means the evidence is excluded. Understanding of the questions, evidence is corroborated and admitted. (The Australasian Institute of Judicial Administration Incorporated, 2015). Succeeding, this essay will discuss issues regarding eyewitness testimony from children alongside additional reliable evidence from children.

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Many issues can occur with eyewitness testimony that includes children, this includes how the child is questioned, how long after the incident the child is questioned and how the child handles the experience. The difference between adults and child's eyewitness testimony is not all that different, it is argued that both recollections can be affected by human perception. Human perception is what a person senses and experiences during a situation. When humans are under stress, suffering from shock is a main theme and even your senses can be interpreted differently and can cause you to be distorted which is known as repressed memory, Thus leading to false memory. Explaining a experience differently causes many problems such as incorrect information which can lead to an innocent person being accused. Figures in the United States, show that eyewitness testimonies have provided up to 75% of wrongful convictions. (Reiss, 2008).

Affecting and explaining the experience incorrectly, can involve quality of lighting, distance between person and whether there was any obstruction in the situation that can very much lead to important details that can lead to the accused being missed. The waiting period after an experience is a major issue as the prolonged time to create a statement, can cause detail to be forgotten and altered which can impact a case heavily. Both a child and adult's time to give a statement can be critical, in making sure the details are fresh in the mind of the person giving a statement and can be the difference between a more precise eyewitness testimony. (Flin et al., 1992).

Forgotten or altered information can lead to false information being given. Questioning can have a big impact on how a question is answered, through the term suggestibility. Studies by Dale,Loftus and Rathbun (1978) has shown that questions such as did you see the? Did you see any? Didn't you see some? Were answered yes, time and time again opposed to other types of questions. Concerns in children completing eyewitness testimonies is there memory to an adult is quite narrow, children are at a higher risk of suggestibility due to a child's communication skills not being as formed as an adults, Thus creating the thought that a child could be deficient in being a dependable witness. The court's process can effect the child and provide anxiety and depression which would refrain the child from taking the stand. (Almerigogna, Ost, Bull, & Akehurst, 2007). If the only eyewitness to a case is that of a child, this could be a big problem.

Onwards, children giving evidence can be formed more dependable. Giving the child access to a statement as soon as possible and accompanying the child with a guardian will provide the support and give more reliability to the child right away. By crowding the child with multiple interactions with different people can cause anxiety and the child can feel very uncomfortable and not be able to supply a reliable statement which can lead to false information given which can impact a case through wrongful convictions. creating a child friendly environment with the likes of children's games, posters or pictures on the wall will provide a non intimidating area for the child and will make then feel comfortable when participating in the interview, providing activities that the children are use to at their own home can further enhance the quality of the statement given by the children, these things can be implemented to reduce the anxiety with the children.

A study by Reyna and Brainers (2012) found that returning back to the scene of an event can cue false memory. This shows that before the questioning allow the child to investigate the area where they will be questioned and create a satisfying environment, for the child to feel comfortable alongside using a clear and calm voice to ease the child. Children cannot sit still for long periods of time so proper breaks are required, by applying regular breaks the child can focus and provide a proper statement. The court procedure must be strict and evidence from a child must be handled in the same manner as an adult's evidence would be. Furthermore this can be done through not allowing judges to provide warnings about the unreliability of children witnesses. (The Australasian Institute of Judicial Administration Incorporated, 2015). Succeeding, this essay will supply evidence to establish how reliable evidence is from a child.

Many studies have been completed to demonstrate how evidence is reliable from a child.

Throughout time it has been proved that a child's evidence is reliable. National Science Foundation in 2008, established that the U.S legal system has had thoughts of children testimony incorrect. National Science Foundation (2008) found humans have two types of memory "verbatim trace" and "gist trace". Gist trace is the most common cause which creates false memories. Verbatim trace is where events are recorded accurately and correctly. The National Science Foundation (2008) found that children have more "verbatim trace" as they grow older, children begin to establish more "gist trace" which occurs mostly in adults. Through this research an understanding is gained that children's recollections can be more reliable and thus creating more reliable evidence. (National Science Foundation, 2008). Reyna and Brainerd (2012) both agreed that memories are stored in two different areas of the mind, one being recorded memories and the other being captured memories. Research by Reyna and Brainerd (2012) found that meaning based memories are more responsible for false memories, especially in adult witnesses. Children are more reliable due to having more "verbatim trace" then adults thus meaning an accurate testimony when questioned. (Brainerd and Reyna, 2012).

Furthermore, this essay will argue that under proper questioning children should be able to supply a eyewitness testimony.

Evidence from National Science Foundation (2008) alongside Reyna and Brainerd (2012) has investigated that children use a particular other part of the mind then an adult which records an event and thus creating a child's recollection more accurate, alongside adults decreasing memory accuracy due to having more knowledge then children. The assumption that children are more prone to false memory reports than adults is untenable.

Children should be able to provide an eyewitness testimony to create lower wrongful convictions, alongside being competent to be able to and are interviewed correctly with correct questioning. Questioning should follow proper guidelines and recording's made available.

Misleading information cannot be given and a supported style should be approached, open ended questions should be presented due to younger children being more vulnerable and supply the correct information which will establish that the proper information is supplied. (Ceci et al., 1987) . This day and age we know that the reliability of memory evidence depends on not only the style of questioning but also the types of questions children are asked. (Howe and Knott, 2015). It has been proven that children are able to give an accurate report of the event when asked to recall the event freely. Less detail is given by a younger child then an adult or older child. (Pipe,1996). In the United sates, Orbach, Hershkowitz, Esplin, Lamb, & Horowitz (2007) for the National Institute of Child Heath and Human Development (NICHD) developed an interesting interview style that is used when questioning children. A specific structure and timing which should be implemented when interviewing a child, though the style also includes what you should not do in an interview.

Over time research has shown that using the National Institute of Child Health and Human Development interviewing style, has further improved on the quality of testimonies and reliable information has also improved. Opened ended questions are used more frequently and there is shown to be a 50% decrease in the amount of suggestive prompts then those who are not introducing the interviewing style. Through using this interviewing style the testimonies are far more accurate, and are less likely to be challenged in court. (Howe and Knott, 2015). Children should be able to supply a reliable eyewitness testimony with the circumstances that they are correctly questioned and with the use of the interviewing style created by Orbach, Lamb, Hershkowitz, Horowitz and Esplin (2007) If an adult's testimony is said to be reliable, why isn't a child's testimony?

References

Almerigogna, J., Ost, J., Bull, R., & Akehurst, L. (2007). A state of high anxiety: How non- supportive interviewers can increase the suggestibility of child witnesses. Applied Cognitive Psychology, 21, 963-974

Australian Law Reform Commission. Children's evidence. Rules of evidence.

Australian Law Reform Commission and Human Rights and Equal Opportunity Commission,Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.15].

Brainerd, C. J., & Reyna, V. F. (2005). The science of false memory. Oxford University Press

Brainerd, C. J., & Reyna, V. F. (2012). Reliability of children's testimony in the era of developmental reversals. Developmental Review, 32(3), 224-267.

Bruck, M., & Ceci, S.J. (1999). The suggestibility of children's memory. Annual Review of Psychology, 50, 419-439.

Ceci, S.J., Ross, D.F., & Toglia, M.P. (1987). Suggestibility of children's memory: Psycholegal implications. Journal of Experimental Psychology: General, 116, 38-49.

Close, I. (2013). The Reliability of a Child as an Eyewitness in Court. Maastricht Student Journal of Psychology and Neuroscience, 2.

Dale, P. S., Loftus, E. F., & Rathbun, L. (1978). The influence of the form of the question on the eyewitness testimony of preschool children. Journal of Psycholinguistic Research, 7(4), 269-277.

Flin, R., Boon, J., Knox, A., & Bull, R. (1992). The effect of a five-month delay on children'sand adults' eyewitness memory. British Journal of Psychology, 83, 323-336.

Gee, S., & Pipe, M. E. (1995). Helping children to remember: The influence of object cues onchildren's accounts of a real event. Developmental Psychology, 31(5), 746.

Goodman, G. S., Rudy, L., Bottoms, B. L., & Aman, C. (1990). Children's concerns and memory: Issues of ecological validity in the study of children's eyewitness testimony Hartnett, K. (2015). How to make eyewitness evidence more reliable. Boston Globe.

Howe, M. L., & Knott, L. M. (2015). The fallibility of memory in judicial processes: Lessons from the past and their modern consequences. Memory, 23(5), 633-656.

Lamb, M. E., Orbach, Y., Hershkowitz, I., Esplin, P. W., & Horowitz, D. (2007). A structured forensic interview protocol improves the quality and informativeness of investigative interviews with children: A review of research using the NICHD Investigative Interview Protocol. Child abuse & neglect, 31(11-12), 1201-1231.

Lindsay, D. S., & Johnson, M. K. (1989). The eyewitness suggestibility effect and memory for source. Memory & Cognition, 17(3), 349-358.

Loftus, E. F., & Palmer, J. C. (1996). Eyewitness testimony. In Introducing psychologicalresearch (pp. 305-309). Palgrave, London.

National Science Foundation. (2008, March 17). Children's Memory May Be More Reliable Than Adults' In Court Cases. Science Daily.

Oates, R. K., & Unit, C. P. (1990). The reliability of the child as a witness.

Pipe, M.-E. (1996). Children's eyewitness memory. New Zealand Journal of Psychology, 25,36- 43.

Pipe, M. E., & Wilson, J. C. (1994). Cues and secrets: Influences on children's event reports. Developmental Psychology, 30(4), 515.

Reiss, R. (2008). Wrongfully Convicted by an Inaccurate Eyewitness.

The Australasian Institute of Judicial Administration Incorporated. (2015). Bench book for children giving evidence in Australian courts.

Thomson, D. (1988). Reliability and credibility of children as witnesses. Children as witnesses. Canberra, Australia: Australian Institute of Criminology.

 

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