Recent Supreme Court Rulings on Child Testimony in Sexual Abuse Cases

Three recent United States Surpreme Court decisions concerning court testimony in cases involving sexually abused children are discussed. Two of the decisions establish criteria for allowing courtroom procedures (such as televised testimony) that enable a child witness to testify without a direct face-to-face encounter with the alleged abuser. The third decision establishes some criteria for the admissibility of incriminating hearsay statements made by very young children during the course of professional evaluation for reported sexual abuse. Implications of these criterai for decisions about courtroom procedures for obtaining children's testimony and for interviewing children in cases of alleged sexual abuse are also discussed.     

Testimony About Elder Abuse and Guardianship

The expert witness testifying about the abuse of elderly persons or their competence may be faced with an aggressive cross-examination. Four areas of knowledge are discussed: the nature of bruises, the challenge to data, mental competency, and guardianship knowledge. Sample responses are presented. The conclusion is drawn that mastery of courtroom skills is important in this increasingly sensitive area of social concern.     

Expert Testimony Influences Juror Decisions in Criminal Trials Involving Recovered Memories of Childhood Sexual Abuse

We examined the impact of expert witness orientation (researcher or clinical practitioner) and type of testimony (testimony for the prosecution, defense, both prosecution and defense, or no testimony) on mock jurors’ decisions in a sexual abuse trial. Participants acted as mock jurors on a sexual abuse criminal trial based on recovered memory that included expert witness testimony. Results showed that expert witness testimony provided by a researcher did not impact mock jurors’ guilt ratings any differently than the expert witness testimony provided by a clinical practitioner. However, type of testimony had a significant effect on jurors’ guilt ratings such that jurors who read only defense or only prosecution testimony made decisions favoring the relevant side.     

Protecting the child witness in the courtroom

The 1988 and 1991 Criminal Justice Acts have transformed the law and procedure governing the appearance of children as witnesses in criminal trials. Traditional legal constraints such as the competency test, the requirement of corroboration, the special warning to the jury and the hearsay rule have all been abolished or extensively qualified. In addition, the 1988 Act introduced a major procedural change in the form of the video-link which was designed to make it easier for children to give their evidence. A survey of existing research confirms that children do find the giving of evidence in open court stressful and that the experience may have long-term adverse consequences. A study for the Home Office indicated widespread acceptance of the use of the video-link among courtroom personnel and observational data confirm its effectiveness in empowering children's testimony. The 1991 Act allows pre-recorded video-taped interviews to be admitted as evidence in criminal cases but retains live cross-examination via the link. The legal requirements of such interviews will place heavy demands on interdisciplinary cooperation in training and the establishment of good practice. The impact of this novel scheme on child witnesses and the court deserves rigorous evaluation.     

Lessons from the courtroom: Perspectives from child welfare attorneys and supervisors

Despite a history of child welfare worker performance difficulty in the courtroom, there has been little documentation regarding specific training needs for worker courtroom practice skills. This study expands the literature on child welfare courtroom practice skills by documenting child welfare worker conduct via perspectives from courtroom attorneys and child welfare supervisors. Separate focus groups with child welfare attorneys and supervisors were held to ascertain best and concerning practices for child welfare workers in the courtroom. Focus group participants identified themes related to preparation, adversarial nature of court proceedings, testimony, reasonable efforts, appearance and mannerisms, esteem of workers, duality of worker roles, and support. Study results have implications for focusing and improving training and supervision.     

Perceptions of elder physical abuse in the courtroom: the influence of hearsay witness testimony

A community sample of 226 participants (41% men, 59% women) who answered questions about a trial summary that manipulated what type of witness (a 45-year-old hearsay [second-hand information based on the report of a crime victim] witness, a 75-year-old hearsay witness, or the 75-year-old victim) presented an allegation of elder physical abuse. Overall, participants who read the testimony of a 45-year-old hearsay witness had higher conviction rates than participants who read the testimony of the 75-year-old hearsay witness or the elder victim. Additionally, participants who had previously been victims of abuse and/or who had positive attitudes toward elderly people rendered more pro-prosecution verdicts. Finally, as the age of the participant increased so did conviction rates.     

The confrontation clause and the child victim of sexual abuse

Courtroom proceedings for child sexual abuse often represent a morass of conflicting rights and counterproductive justice. Within this article, conflicting rights of adults and children regarding courtroom testimony are explored with an interest in assessing the effects of testifying for children and addressing the process of making children's testimonies less traumatic and more credible.     

Lay people in court: the experience of defendants,eyewitnesses and victims

The article considers the effect of criminal trial procedures on the experience at court of victims, witnesses and defendants. Trials for offences involving physical violence were observed, and interviews conducted with those involved. The article highlights communication problems lay people encountered relating to courtroom conventions, discusses alternative procedures granting more room for narrative testimony, and draws parallels between such an approach and principles of research methods directed to securing valid, reliable data.     

Book reviews

In the long eighteenth century, the judges at the Old Bailey came to allow Jewish, Scottish, Muslim, Hindu and Chinese witnesses, but not Quakers, to swear oaths according to their own cultural practices. Although a non-Christian witness might be able to give testimony under oath, the jury still had to assess the veracity of the evidence. The increasingly adversarial mode of felony trials in the eighteenth century made the separation between who was legally able to testify and who was credible more pronounced. Barristers and prisoners raised concerns about the oaths of blacks and non-Christians as a means of impugning the truthfulness of a witness.     

Rorschach Assessment in Child Custody Case

SUMMARY

This article describes the utility and limitations of the Rorschach Inkblot Test for addressing issues in child custody cases, with particular attention to identifying level of adjustment or psychological disturbance, personality characteristics that may foster or impede adequate parenting, and possible childhood experiences of trauma and sexual abuse. Data are reviewed that document the scientific respectability and widespread use of Rorschach assessment and attest the regularity with which Rorschach-based testimony is admitted into evidence in the courtroom. Also noted are ways in which Rorschach findings can lend incremental validity to forensic evaluations and circumvent efforts atmalingering or deception.     

Child witness support and preparation: are parents/caregivers ignored?

Over recent decades research has confirmed the sensible belief that to participate in criminal proceedings (that were designed for adults) child witnesses may benefit from support and preparation. This is so even in countries where special measures have been introduced to make it less arduous for children to give their testimony (e.g. closed circuit television to allow children to testify away from the actual courtroom; video recorded evidence‐in‐chief). Indeed, it could be argued that as more and more children provide testimony (e.g. as alleged victims or witnesses), the more comprehensive should be preparation and support programmes for them. However, while in some countries preparation and support programmes are now offered to such children, the needs of these children's (non‐offending) parents/caregivers seem to be ignored. This paper contends not only that these adults need preparation and support but also that the provision of this is likely to benefit child witnesses. Copyright © 2006 John Wiley & Sons, Ltd.     

Countertransference Bias: Self-Examination,Not Cross-Examination

ABSTRACT

In reply to T. Tippins (2007, this issue), we take issue with his claim that recognition of the biasing impact of custody evaluators' countertransference opens the door to “evidentially legitimate” fishing expeditions through evaluators' private lives on cross-examination. We clarify the distinction between self-examination for counter-transference bias as a heuristic for improving the sensitivity and objectivity of expert testimony and its use as substantive evidence. We argue that countertransference bias is a highly personal, emotionally charged kind of bias, unlike the cognitive biases more frequently discussed in the child custody literature. We conclude that recognition of the insidious emotional influences that threaten our objectivity in working with families in high conflict divorce is an important ethical responsibility.     

Complex Responses to Trauma: Challenges in Bearing Witness

This paper explores variability in family and individual response to trauma. The discussion draws on results from a study that investigated family adaptation to traumatic brain injury (TBI) and also refers to literature on the Holocaust. Outcomes to trauma are complex and it is argued here that hope can coexist with despair (within families and within particular individuals). The challenge for therapists in bearing witness to testimony following significantly traumatic events is also explored.     

Juror perceptions of child eyewitness testimony in a sexual abuse trial

A mock child sexual abuse trial was used to study juror perceptions of child eyewitnesses. The child's age (5, 11, or 16) and level of involvement (victim or bystander) were varied across conditions in order to test their impact on juror perceptions and verdict. Results indicated a significant effect of level of involvement on the verdict; defendants in trials involving a bystander witness received higher guilt ratings than defendants in trials with a victim-witness. In addition, jurors perceived the child's eyewitness testimony to be more believable when the child was younger. Implications for the impact of these findings on real-life child sexual abuse cases are discussed.     

Juror Perceptions of Child Eyewitness Testimony in a Sexual Abuse Trial

ABSTRACT

A mock child sexual abuse trial was used to study juror perceptions of child eyewitnesses. The child's age (5, 11, or 16) and level of involvement (victim or bystander) were varied across conditions in order to test their impact on juror perceptions and verdict. Results indicated a significant effect of level of involvement on the verdict; defendants in trials involving a bystander witness received higher guilt ratings than defendants in trials with a victim-witness. In addition, jurors perceived the child's eyewitness testimony to be more believable when the child was younger. Implications for the impact of these findings on real-life child sexual abuse cases are discussed.     

Children's Welfare in the Courtroom: Preparation and Protection of the Child Witness

SUMMARY. This paper summarises recent attempts to safeguard children's welfare in the courtroom. Drawing on international research and practice developments, the paper compares programmes that prepare children for their role as witnesses with reforms designed to protect children once they testify. Benefits and disadvantages associated with both approaches are highlighted, and the paper concludes that all professionals have a responsibility to promote children's welfare in the courtroom.     

Child maltreatment victims' attitudes about appearing in dependency and criminal courts

In the present study, we investigated the attitudes of maltreated children involved in court hearings. Specifically, this pilot research examined whether type of abuse (sexual vs. physical vs. neglect), type of court (dependency vs. criminal), and child and abuse characteristics predicted child victims' feelings about seeing defendants in court and answering questions in the courtroom. Data were collected from interviews with the children and from their court files. Results indicated that greater negativity about seeing defendants in the courtroom was significantly predicted by testifying as a sexual abuse victim in criminal court and by being female regardless of court system, whereas greater positivity about seeing defendants in the courtroom was predicted by appearing in dependency court hearings as a physical abuse victim. In addition, greater severity of maltreatment and older age of the children were significantly associated with greater negativity about answering questions in court. Implications for future research are discussed.     

Enjoy Poverty: humanitarianism and the testimonial function of images

The overlap between production of humanitarian images and interventions in contexts of natural and man-made catastrophes is growing on a global scale. An increasingly close relationship exists between image production, news production and humanitarian industry. In this article, we argue that this process is transforming the meaning of the social, political and ethical act of bearing witness. We analyse the epistemic and political implications of visual humanitarian testimony through the documentary film Enjoy Poverty (2008), shot in Congo by the Dutch artist Renzo Martens. Examining some of the key scenes of the film, we undertake an analysis of the visual culture of humanitarianism within which the contemporary production of sensational images of strong emotional impact is inscribed and justified. We maintain that rethinking testimonial debt in light of contemporary visual humanitarianism fundamentally means to acknowledge and explore the hierarchical relationship that visual humanitarianism creates between the witnesses, the victims and the spectators. We conclude by arguing that Enjoy Poverty constitutes an attempt to generate a new visual, discursive and political horizon within which one can prevent the transformation of the testimonial relationship into a relationship of power.     

The Prosecution's Use of Social Science Expert Testimony in Child Sexual Abuse Cases

Six different categories of social science expert testimony presented by the prosecution regarding behaviors of child sexual abuse victims are described and analyzed in relation to national case law trends. Problems with the admissibility of several forms of such testimony are discussed in terms of legal requirements for expert testimony, prior knowledge of the issues held by jurors, reliability of the social science research regarding child sexual abuse, and the prejudicial impact on jurors. Finally, recommendations are made to limit the use of most forms of testimony (except rehabilitative testimony), conduct further research on certain issues, and convene a multi-disciplinary symposium and publish, in a reputable journal, papers from the symposium that analyze the issues, explore areas of consensus, and suggest future directions in this area.