Children as Witnesses: A Symposium on Child Competence and the Accused’s Right to Confront Child Witnesses

Abstract

The rules of evidence provide a mechanism for sorting through the mass of information that could be presented at trial, winnowing irrelevancies, and excising potentially distracting or unfairly prejudicial material. They also reflect basic tenets about how the finder of fact determines truth. For instance, the rules shield the jury from, or at least alert it to, some potentially unreliable sources. Most importantly for the purposes of this symposium, the evidence rules reflect and perpetuate deeply-held notions of who is sufficiently trustworthy to serve as a witness. The rules control who may testify, what the witnesses may say, and what sorts of questions may be asked of the witnesses on cross-examination.The scholars in this symposium address these questions from different angles, bringing to bear history, psychology, and a careful analysis of the recent Supreme Court cases on confrontation. They address five important themes: (1) the special status and rights of children as witnesses; (2) ways in which the special case of child witnesses illuminates contradictions, ambiguities, unresolved questions, and the unfortunate tendency towards all-or-nothing thinking in recent Supreme Court Sixth Amendment jurisprudence; (3) practical suggestions for balancing the interests of child witnesses and the rights of the accused in criminal cases; (4) an inquiry into the fate of pre-Crawford cases, most importantly Maryland v. Craig;2 and (5) a critique of the uses and abuses of historical research by the Supreme Court in its attempt to address issues of confrontation.