How accurate is a testimony by child and adult eyewitnesses?
“Do you solemnly swear that the testimony you are about to give will be the truth, the whole truth and nothing but the truth, so help you God?”
The witness and his testimony is the essential element in any judicial proceedings. “The witness is someone who has first-hand knowledge about a crime or dramatic event through their senses (e.g. seeing, hearing, smelling, touching) and can help certify important considerations to crime or event. A witness who has seen event first-hand is known the eyewitness. Witnesses are often called before a court of law to testify in trials”. (2005). In legal definition witness “is a person who comes to court and swears under oath to give truthful evidence. One who, being sworn or affirmed, according to law, deposes as to his knowledge of facts in issue between the parties in a case”. . While testimony “is a solemn attestation as to the truth of a matter.” In the law, testimony is a form of evidence that is obtained from a witness who makes a solemn statement or declaration of fact. Testimony may be oral or written, and it is usually made by oath or affirmation under penalty of perjury. (2005).
Witness Testimony
The witness testimony is assumed to be credible and reliable than circumstantial evidence. Studies have shown that individual is often flawed and their testimony is meaningless. This can occur due to person’s faulty observation and recollection, because of a person’s bias or because the witness is lying. If there are several witnesses in a crime it is important to look for similarities in their collective descriptions to substantiate the facts of an event, and keep in mind the contrast of individual description. One study involved an experiment in which subjects acted as jurors in a criminal case. Jurors heard a description of a robbery-murder, then a prosecution argument, then an argument for the defense. Some jurors heard only circumstantial evidence, others heard from a clerk who claimed to identify the defendant. In the first case, 18% percent found the defendant guilty, but in the second, 72% found the defendant guilty. (1988). Lineups, where the eyewitness picks out a suspect from a group of people in the police station, are often grossly suggestive, and give the false impression that the witness remembered the suspect. In another study, students watched a staged crime. An hour later they looked through photos. A week later, they were asked to pick the suspect out of lineups. As a result 8% of the people in lineups were mistakenly identified as criminals and 20% of the innocent people whose photographs were included were mistakenly identified (1977). Another study looked at sixty-five cases of “erroneous criminal conviction.” In 45% of the cases, eyewitness mistakes were responsible. (). Eyewitness testimony is a powerful tool within any field particularly that of justice, as it is a readily accepted form of evidence that allows for convictions.
The witnesses are frequently mistaken, or are deceived. This result no other certainty from their testimony than what arises from analogy. If the witness is calm, we listen to their voice of reason and the impulse of nature we feel in ourselves a great repugnance to betray the truth, to the pre-juiced of another, and we have observes that honest, intelligent and disinterested persons never combine to deceive others by a falsehood. By analogy, with a sort of moral certainty, a fact can be attested by several witnesses if it is true. This proof derives from a double presumption. We first presume, on the good sense of the witnesses that they have not been mistaken; and, secondly, we presume on their integrity and honesty that they wish not to deceive. To be sure that they have not been deceived, and that they do not wish to mislead, we must ascertain, as far as possible, the nature and the quality of the facts proved; the quality and the person of the witness; and the testimony itself, by comparing it with the description of other witnesses. ()
It is necessary to consider the following:
1. The character of the witness
If we are to rely on the testimony of another in order to form judgment as to certain facts, we must be aware, (a) that he knows the facts of the question, and he is not mistaken; and, (b). that he is willing to tell the truth, and has no desire to impose on those who are to form a judgment on his testimony. We must also consider giving thrust and confidence to the witness. However, we must look into his capacity or his organization, and in his interest or the agenda to tell or not to tell the truth. If the facts of the testimony conform to the event that is known to exist, he becomes much more credible. Therefore, he deserves respect. When a witness is impeached, although he remains competent, he credibility would not be the same as before.
3). The number of witnesses required by law.
As to the number of witnesses, it is a general rule that one witness is sufficient to establish a fact, but there are exceptions, both in civil and criminal cases.
In civil cases, the laws of perhaps all the states of the Union require two witnesses and some require even more, to prove the execution of a last will and testament devising lands. In criminal cases, there are several instances where two witnesses at least are required. The Constitution of the United States, art.. “provides that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. In cases of perjury there must evidently be two witnesses, or one witness and such circumstances as have the effect of one witness; for if there be but one witness, then there is oath against oath, and therefore uncertainty”.
A witness may be compelled to attend court. In the first place a subpoena requiring his attendance must be served upon him personally, and on his neglect to attend, an attachment for contempt will be issued.
2. The quality of the witness.
As to the quality of the witnesses, it is a general rule that all people’ can be admitted as witnesses. However, there are various exceptions. A witness may be incompetent,
For want of understanding.
An idiot cannot be examined as a witness, but a lunatic, during a lucid interval, may be examined. And also a person in a state of intoxication cannot be admitted as a witness. A child of any age capable of distinguishing good and evil may be examined as a witness; and in all cases, the examination must be under oath or affirmation. Formerly some judges presume that the child was incompetent when he was under seven years of age. When the child is under fourteen, he is presumed incapable until capacity is shown; when he is over fourteen he may be sworn without a previous examination.
CHILD WITNESS
"Child witness" is defined in Section 2(2) as an individual under the age of a bracketed [13] who is competent to testify and is called to testify in the proceeding. The Act thereby accommodates the diverse approaches to age currently recognized among the several states for taking the testimony of a child by an alternative method. For example, while in Georgia the taking of testimony by closed-circuit television applies to a child ten years of age or younger () and in Florida the age is under sixteen years (). The approach in the Act is based upon a recommendation that the maximum age should be thirteen. The term "child witness" in Section 2(2) includes both a child who is a party to a proceeding and one who is merely called to testify as a witness. (UNIFORM CHILD WITNESS TESTIMONY BY ALTERNATIVE METHODS ACT)
CHILD TESTIMONY
The child witness has become a social issue because of the alarmingly high number of children who witness crimes or experience maltreatment (especially sexual abuse) (1984;1985; 1983;1986), and the expanding public and professional interest in child maltreatment ( 1987;1990) which has led to strengthened mandatory reporting laws. Researches on child witnesses has gone deeper and beyond social, legal, and psychological aspects. Although adult witnesses often provide dubious and unreliable testimony, criminal cases often hinge on such evidence (1974). The reliability of child witnesses, however, has been questioned for centuries on the grounds of supposed deficits in children's psychological faculties for recording, storing, and retrieving the details of a witnessed event. In some studies the rates of misidentification produced by children have exceeded 70% which in turn affects witness credibility. On survey of Canadian judges about their perceptions of child and adult witnesses on such issues as suggestibility, leading questions, memory and perceptions of honesty in child witnesses. It found that children are perceived as:
· more susceptible to suggestibility during pre-court interviews
· more influenced by leading questions
· less likely than adults to intentionally set out to deceive during court testimony.
ACCURACY OF CHILD AND ADULT TESTIMONY
There are evidences that children omit more details in their spontaneous recollections of events than adults do. Legal practitioners are now more concern, with the presumed errors of commission in children's testimony. In some United States courts the testimony of young children (less than 10 to 14 years) will not stand without corroboration from another source, such as a medical doctor or an adult witness. The judge may determine the competency of the child on the basis of testimony or a pretrial examination. Many presumptions regarding children's competency or incompetency to testify can be refuted. The following questions should be considered when establishing competency:
a) Can the child resist suggestions from various sources to change?
b) Does the child have adequate cognitive skills for comprehending and accurately reporting the witnessed event?
c) Can the child successfully discriminate actual events from his or her internal thoughts, images, or fantasies?
When children are witnesses in criminal cases, there are many factors that affect the reliability of their testimony, that are less important for adult witnesses.
1. Children are more easily influenced by adult questioners, and respond more to leading questions.
Suggestibility
Children are generally held to be more suggestible than adults ( 1983), however there are no substantial evidence to support this notion. Suggestibility in children is an especially important research topic because children are asked more leading questions in courts than adults (Thomas, 1956), and many jurisdictions permit child witnesses to be asked leading questions. Children are asked leading questions because they often provide spontaneous reports that are poor in content, and the examiner needs to probe for more details. For example, one parent may encourage a child to support a false allegation of abuse against the other parent in order to get custody in a divorce (1986; 1990). Alternatively, one parent may encourage a child to recast an incestuous relationship with the other parent as an ordinary relationship in order to avoid "publicity" or to "keep the family together" (1990).
Suggestibility is “defined here as the extent to which individuals' reports and representations about events vary from their original form as a result of information obtained subsequent to the event. (1990; 1987;1980; 1984;1990; 1983).
2. Young children may blend fantasy and reality or opposing counsel will make the claim that they are blending fantasy and reality.
Both children and adults seem to distinguish self-generated events from other-generated events better than they distinguish between different other-generated events ( 1987). Therefore, individuals are probably better at separating what they thought about an event from what someone else told them about an event than they are at separating what two different people told them about an event. This deficiency in separating different other-generated events can lead to inaccuracies in testimony, and is discussed in terms of suggestibility. In short, studies suggest that the use of fantasy classifications and explanations increases with age. Children's ability to separate real-pretend dimensions of events is apparent by the age of 3 years, and seems to develop before the ability to separate apparent-real dimensions. Research has indicated that (a) children as young as 6 years of age perform as well as adults when asked to determine whether an event was perceived or imagined, (b) 6-year-olds do not perform as well as older individuals when distinguishing imagined from spoken words, and (c) 6-and 9-year-olds have more difficulty than adults in distinguishing what they had thought of doing from what they actually had done. In general, children's deficits appear to result from confusions between self-generated behaviors and imaginings of self-generated behaviors. Much more research needs to be conducted on children's capacity to distinguish between memor (1984).
3. Third, the cognitive functioning of a child is more important to testimony than with an adult witness, because of development. A child who is intellectually delayed will be less reliable than an adult with the same delay.
The primary cognitive variable in the child witness is memory. Although there are at least a dozen commonly employed paradigms in experimental studies of memory (1984), these paradigms are not representative of situations a child witness would be asked to recall — or of everyday situations that most people use memory for (1984; 1982; 1980). As (1984) notes, "while most experimental memory tasks test for deliberate, short-term retention of discrete stimuli (e.g., word lists), most everyday use of memory involves nondeliberate, long-term retention of complex events" (). Children and adults imprint memory vary differently based on their past knowledge of things ( ). But it does not mean children cannot be as credible as adults. People actually disregard their ability to be eyewitnesses at about age 12, and it stays constant until old age, when it starts dropping off again, said."The main ingredient which drives the memory difference is how much they know about the event before they experience it. So the 3-year-old's not very good at recalling what he saw because he doesn't have the script the adults have about what happens in a filling station," he said. also said there are times when a child can be a lot more accurate than an adult."Because of all our knowledge we may see things that aren't there," he said. "When you show adults videos of kids in college taking an exam and someone asks the time, adults see cheating. The young kids don't." However, warned that people relying on the eyewitness testimony of children need to be careful about how that information is obtained. Sometimes children create false memories It will turn out the stories the kids told were not true. On subsequent cases, kids were not exactly lying. said children — even 3-year-olds — can be credible witnesses if their memory is not tainted by leading questions. "They may not tell you a lot, but what they tell you, you can go to the bank with. It'll be highly accurate," he said.
4. Fourth, juries may be less inclined to believe a child, so psychological testimony regarding the developmental capabilities of a child witness can affect credibility.
A psychological evaluation of a child witness may be ordered to assess credibility. Beyond that, psychologists may be asked to testify regarding the reliability of child witnesses, or concerning the affects of leading questions, or the presence of psychological problems on credibility.
5. Fifth, child victims of abuse may have psychological problems that influence their testimony, and children with psychological disturbances are less likely to make good witnesses in any criminal proceeding.
Fear might also motivate children to lie or withhold information. In child sexual abuse cases, the adult typically attempts to bribe or coerce the child to secrecy. (1986). A child may fear retaliation for implicating a sexual or physical violator in a trial — especially if the child is familiar with the accused. Alternatively, an abused child may attempt to protect the abuser if he or she is a familiar and trusted adult — which is not uncommon (1984).
Some tests and researches conducted have shown that there an enormous 54% swing from a non-guilty verdict, to that of guilty within the same case simply through the introduction of an eyewitness 1979 (). This alone displays the potency of eyewitness testimony, and asserts the theory that jurors tend to over believe, or at least weigh heavily on such evidence (1992). Unfortunately at present state, eyewitness evidence – though technically reliable in its own right – tends to convict innocent individuals in a devastatingly high proportion, estimated at 45% ( 1991). Eyewitness testimony can play a beneficial role in the criminal justice system if police procedures are controlled under the strict guidelines. If witness identification is correctly implemented, investigators and prosecutors will be able to make their judgements more effectively, and thus focus their resources more efficiently (). We should bear in mind that even if all the social, cognitive and psychological aspects mentioned are completely controlled, there still remains the possibility that errors will continue to occur due to memory recall errors, and overly emotional witnesses who simply wish to see someone punished for their crimes. But regardless of this fact, there would undoubtedly be a remarkable recovery from the present 45% wrongful conviction rate as displayed within many studies.
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