The evidence is essential in every criminal, civil or administrative proceeding. It serves as a proof of a particular fact. There are three kinds of evidence that may be presented in court to prove a particular fact. These are:
- a) object evidence;
- b) documentary evidence;
- c) testimonial evidence.
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Of these three kinds of evidence, the object evidence is considered the most superior and most reliable. On the other hand, the testimonial evidence is considered least reliable and least superior.
This paper is concerned with the reliability, or unreliability, of eyewitness testimony of a child. There are times when a crime is committed not in public view and the only people who are present are the perpetrator of the crime, the victim, and the 3rd party witness. In cases of sexual abuse committed against a child, the only witness is the victim whose credibility may be questioned. In the case of other crimes such as theft or robbery, where the only witness is a minor, his credibility may likewise be questioned. It bears stressing that in these cases where the child is the sole witness to the crime his statements have so much importance in the administration of the criminal justice system. This essay seeks to examine the possible issues that may arise when a child is used as the witness and his testimony is taken in connection with a crime.
Reliability or Unreliability of Child Eyewitness Testimony
The Federal Rules of Evidence does not require that a witness to a crime must be of a specific age or must have reached a particular level of mental discretion. Rule 601 of the Federal Rules of Evidence is clear on this: “Rule 601 Every person is competent to be a witness except as otherwise provided in these rules.” The minimum requirement for the testimony of a witness to be admitted in court is that the witness must be capable of perceiving and capable of making known his perceptions to others. So long as the child can perceive by means of all his senses that facts to which he is testifying and so long as he can relate to others what he has perceived, then he is qualified to become a witness. It is because of these reasons that a child may be qualified to become a witness. It is also the same reasons why children can be credible witnesses as well. (“Just How Credible Is a Child Eyewitness,” 2005)
It cannot however be denied that there are certain doubts insofar as the reliability of the testimony of a child. The testimony itself may be credible but the source may be not. There are certain issues that may affect the child’s testimony. These issues may pertain either to a) the time when the child perceives the event to which he testifies to and b) the time when the child relates what he has perceived at the court
Among the possible issues that may be raised against the child witness is that the child may not have properly observed or seen the event. There are several factors that affect the individual from getting an accurate and objective view of an event – certain conditions such as the time of the day the event happened, the distance of the child from the object of the perception, and his degree of attention at the time of the happening of the event must all be taken into account in evaluating the child’s testimony. Also, it must also be considered that the mental maturity of children is inferior to that of a mature individual. It is possible that though he may have seen an actual crime, he may have a different understanding the same event. These differences in maturity and understanding of an event have an effect at the time the child is presented to testify in court.
More problematic is the time when the child is actually placed on the witness stand. At this point, the child will try to relate to the court and the jury what he has perceived. The prosecution will have to answer to the issue of the possibility that the memory of the child may have been affected by misleading suggestions of the child’s parents. One of the objections that may be raised is that the parents may have actually coached the child on what to say even prior to the time the child takes the witness stand. The parents, guardians or other persons of authority ma have exerted undue influence upon the child so that when the relates his testimony this is no longer what he has seen but what others have influenced him to say. This objection is supported by psychological research. Psychologists say that the younger the child is the more he is susceptible to the suggestive statements of the people around him. (Debra Ann Poole and D. Stephen Lindsay, 2001) The influence is so powerful that the child can no longer distinguish in his memory what he ha actually seen and what his parents have suggested to him.
Another issue that may be raised by the defense during the trial is the manner by which the interview of the child was conducted. (Victor I. Vieth, 1999) If the person who conducted the interview of the child before the trial does not have adequate experience of conducting interviews of a child, it is highly possible that instead of the child relating what he has perceived, the investigator may actually be suggesting to the child information which may affect his memory. The result of this is that at the time of the trial the child may not be relating what he has seen but what the previous investigators have told him.
The possibility of the child’s memory being altered need not necessarily come from third persons. It is most likely that the child himself may have contributed to the alteration or distortion of his original memory. Research shows that getting a verbal description from the child of the perpetrator of the crime interferes with his recollection of the actual perpetrator of the crime. Psychologists call the phenomenon where the verbal memory overshadows the visual memory verbal overshadowing. (Amina Memon and Rachel Rose) Psychologists say that when the child attempts to make a verbal description of the perpetrator of the crime, this act itself may distort his original memory. When the child has described the criminal in a particular way most of the time he is unwilling to reconsider the possibility that he may have given a wrong identification of the perpetrator. Thus, the act of telling a story adds to the distortion, which in turn affects the underlying memory of the event.