Child Witness Policy: Law Interfacing with Social Science

Dorothy F. Marsil (*) Jean Montoya (**) David Ross (***) Louise Graham (****) I INTRODUCTION The number of children testifying in court has posed serious practical and legal problems for the judicial system. One problem confronting the courts is how to protect children from experiencing the psychological trauma resulting from a face-to-face confrontation with a defendant who may have physically harmed the child or threatened future harm to the child. Another concern is that this trauma may impair children's memory performance and their willingness to disclose the truth. In response to these concerns, child witness innovations proliferated throughout the United States in the 1980s and 1990s. (1) Among the innovations were: placing a screen between child witnesses and the defendant during children's testimony; (2) transmitting children's testimony into the courtroom by closed-circuit television; (3) and admitting children's otherwise inadmissible hearsay, (4) including children's videotaped interviews. (5) These innovations spawned a fair amount of appellate litigation regarding their constitutionality . Much of the litigation focused on whether a given innovation violated the Confrontation Clause, (6) but questions about due process arose as well. Court decisions regarding the constitutionality of child witness innovations rest on a number of assumptions that are subject to empirical testing. This article examines many of these assumptions and evaluates whether they are supported by social science evidence. Part II of the article examines the use of shielding procedures in child sexual abuse prosecutions. It begins by exploring the Supreme Court's analysis of state laws providing protection by shielding the child witness from the defendant. Next, it explores various questions: Do child witnesses need protection from confrontational stress? Does shielding prejudice the defendant? Does it impact juror perception of the proceedings' fairness? Does shielding impact juror perception of the child witness? How reliable is children's shielded testimony? Does shielding impair juror ability to detect deception in the child witness? Part III examines the use of hearsay testimony in child sexual abuse prosecutions. As with Part II, it begins by painting a picture of the legal landscape. Specifically, it considers the evidentiary and constitutional implications of using hearsay when children are witnesses. Part III then addresses various questions: Does admitting hearsay testimony protect the child witness? Does admitting hearsay testimony prejudice the defendant? How reliable is hearsay testimony offered in trials involving child witnesses? How accurate are the hearsay witnesses? Are they able to reconstruct details of their out-of-court exchange with the child witness? Does the eyewitness report deteriorate as it is transmitted down the hearsay chain from the child to the hearsay witness? Part IV concludes the article. It highlights the insights gained from the interface of law and social science and makes suggestions for legal practice and future social science research. II CHILDREN'S SHIELDED TESTIMONY Using shielding procedures is distinct from admitting hearsay statements. With shielding procedures, the child's view of the defendant is obstructed during the child's testimony at trial. When a screen is used, the child testifies from behind a screen placed between the child and the defendant. When one-way closed-circuit television is used, the child testifies from a separate testimonial room, and the child's testimony is transmitted into the courtroom where the defendant, jury, and judge are able to view the testimony. (7) In either case, the child witness testifies under oath and is subject to cross-examination. In contrast, when hearsay is admitted in lieu of the child's testimony, not only does the child avoid physical confrontation with the defendant, but the child witness is also not subject to cross-examination, because the prosecution relies on the testimony of a hearsay witness who reports the child's out-of-court statements. …