The child in the witness box
| Author | Bronwyn Naylor |
| Published date | 01 June 1989 |
| Date | 01 June 1989 |
| DOI | http://doi.org/10.1177/000486588902200202 |
| Subject Matter | Original Articles |
82 (1989) 22 ANZJ Crim
THE CHILD IN THE WITNESS BOX
Bronwyn Naylor"
Abstract
The importance of child evidence in criminal trials, particularly for child sexual
assault, is widely recognised. Legal rules and "common knowledge" treat child
evidence as inherently unreliable. However, psychological studies show
that
children can be good witnesses when their special needs are understood. This has
clear implications for legal rules and practices.
Introduction
The role of children as witnesses in court hearings has been widely discussed and
analysed recently. Criminal trials for sexual assault on children have
been
aprimary
focus, with the special problems of children as victim-witnesses to the fore.
However, children are also witnesses to
other
offences which occur in family, child
protection and
other
civil contexts, and their testimony raises similar issues. It is
intended here to concentrate on child witnesses in the criminal sphere.
The law has traditionally taken a very restrictive view of child witnesses,
regarding them as inherently unreliable. When children have
been
permitted to
testify they have done so on adults' terms. Recently, however, there have been
moves to make
the
system more sympathetic to the needs of the child witness.
For
instance, the Victorian Law Reform Commission has looked at modifications of
court rooms and procedure to address the perceived problems of child witnesses -
screens to prevent direct visual confrontation with the accused, use of closed circuit
television, admission of videotaped interviews at trial (Discussion Paper, 1988).
Changes along these lines have been examined, and some introduced, in
other
Australian States and overseas. It has also been widely recommended that the
current requirement, that child evidence be supported by
other
evidence before it
can lead to conviction, be abolished, on the grounds that such arequirement reflects
unnecessary suspicion about the reliability of child testimony.
It is conventional wisdom that young children have poor recall, and are therefore
inaccurate;
that
they are more open to suggestion from, for instance, leading
questions; and that they have difficulty distinguishing fantasy and reality. As an
English judge said only recently, obviously regarding what he said as beyond
dispute,
"It
is well known that women in particular and small boys are liable to be
untruthful and tell stories".1
Poor recall would simply mean the child would be a weak witness. The
other
two
defects, however, have the potential for false accusation and conviction, and could
therefore be seriously prejudicial to an accused person facing criminal trial.
The
question which will be addressed here is whether these fears are justified. The aim
of this article is to review current psychological studies about children and memory,
and to consider what this research has to say about the use of children as witnesses.
First, however, it is important to outline the rules developed by the legal system to
deal with the problems which children have been perceived to pose.
*Lecturer in Law, Monash University, Victoria.
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