Children's evidence in court : problems and suggested solutions

Abstract

Children have participated in the judicial process throughout history; but seldom without controversy. They have been described by some as the most dangerous of all witnesses. Concern over children's reliability as witnesses, as well as the stress that giving evidence entails, has intensified in recent years because more children - some only three or four years old - are testifying (especially in child abuse cases). Although children testify in civil courts, for example in family courts, this dissertation focuses on the special issues surrounding the testimony of children in criminal courts. Because the criminal court ultimately decides whether persons who are accused of serious offences must renounce their freedom, the rules of procedure and evidence are more strict than they are in the civil courts, and witness testimony is subject to greater scrutiny. Hence many controversies have arisen in relation to child witness testimony because by definition, children are not developmentally equal to adults. Younger children, in general, have more limited language capacity, shorter attention spans, and less developed comprehension of the criminal justice system and their role as key witnesses. In other words, young children are less likely to tolerate lengthy interviews, to understand the questions that are asked, and to understand why the questions are being asked in the first place. The adjudication process itself is in fact more cumbersome for children than it is for adults. Historically, the criminal justice system has placed special obstacles in the path of prosecuting children's claims to justice. Amongst such legal barriers there is corroboration and competency. Consequently cases involving children as victims of, or witnesses to, serious crimes offer special challenges to law professionals. The main dilemmas that lawyers and judges have to face, are basically the following; 1) Children's competence as witnesses: The Criminal justice system should provide the means necessary to allow children to communicate what they know, but at the same time it must protect the rights of defendants. 2) The credibility of children's testimony: Criminals should be apprehended and convicted in the interest of justice, however, false accusations must be detected for the same reason. 3) The rights of children: Children should be protected from further psychological harm which the ordeal of the process of giving evidence might cause them. 4) The rights of defendants: The guilty should be punished for their transgressions against society, but this should not be done at the cost of breaching the defendants• constitutional rights. The purpose of this dissertation is to review and comment on the current research findings on such complex issues that arise when children assume the role of court witnesses, and on the proposed solutions to such issues.