Child Witnesses: Fragile Voices in the American Legal System

Children are frequently called to testify in court in criminal prosecutions, divorce and child custody hearings, dependency abuse proceedings, and other disputes. But is their testimony reliable? This book carefully assesses research on the cognitive capabilities of children as well as the emotional, social, and moral influences that might affect children's potential reliability, and it recommends reforms in American legal processes that will protect child witnesses from trauma and ensure accurate testimony. Lucy S. McGough, a specialist in family law, examines the known developmental facts on perception, memory, and reporting that affect children's ability to serve as trial witnesses. She also analyzes many actual trials, including the McMartin Pre-School prosecution in California, the Morgan-Foretich custody and visitation controversy, and the five U.S. Supreme Court child sexual abuse cases, assessing how a child witness may be more prone to memory-fade, suggestibility, or fantasy than an adult witness. McGough also examines the legal processes and rules of evidence that affect how eyewitness accounts by children are received: trial processes for evaluating the credibility of witnesses; the hearsay rule and its exceptions; the Constitution's confrontation clause; and the use and abuse of expert witnesses. And she presents a proposal for the early videotaping of a child's eyewitness account in order to minimize the most serious potential reliability risks posed by child witnesses. The product of ten years of research and investigation, this book should help remedy the failure of American law to take into account all that we now know about the fragility of children's memories.