Using Experts to Aid Jurors in Assessing Child Witness Credibility
| Publication year | 2006 |
| Pages | 65 |
| Citation | Vol. 35 No. 8 Pg. 65 |
2006, August, Pg. 65. Using Experts to Aid Jurors in Assessing Child Witness Credibility
August 2006
Vol. 35, No. 8 [Page 65]
Criminal Law
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Article Editors:
Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 666-4064, lfrieling@lfrieling.com; and Morris Hoffman, a judge for the Second Judicial District Court, Denver
This month's article was written by Livia L. Gilstrap, Colorado Springs, Assistant Professor of Psychology at the University of Colorado at Colorado Springs - gilstrap@uccs.edu; and Michael P. McHenry, Colorado Springs, an attorney with the Colorado State Public Defender's Office - michael.mchenry@state.co.us.
This article addresses the admissibility of expert testimony related to issues surrounding child witnesses. It also provides an overview of the scientific literature regarding children's memory and suggestibility, as well as the limits of experts' ability to determine whether sexual abuse has occurred.
More than 100,000 child sexual abuse ("CSA") cases are investigated and substantiated in the United States each year.(fn1) Substantiated CSA cases are brought to the attention of prosecutors, who determine whether to move forward with prosecution. The jurors who hear these cases may have misconceptions about eyewitness testimony and the effects of sexual abuse on children and, in many instances, their perceptions are influenced by expert testimony.
Expert witnesses in CSA cases often are psychologists testifying as clinicians, scientists, or both. As in any trial, in a CSA case, the court is obligated to admit only expert testimony that is: (1) based on a reliable methodology; (2) appropriately qualified; and (3) useful to the jury.(fn2) As is common in many types of trials, a battle of the experts often ensues.
When psychologists testify as expert witnesses, they often present differing assessments of the evidence because: (1) standards of proof vary between clinical practice and the scientific method; and (2) psychologists often are asked to go beyond the data to provide opinions. This also is the case when the field of forensic psychology is involved, because forensic psychology has not yet developed the diagnostic capabilities often hoped for by litigants. In many CSA cases, there are nuances in the body of data that simultaneously support the prosecution and the defense. Thus, even assuming that scientists will always make the same conclusions about the same body of data (an untenable assumption), there often are aspects of the data that are useful to both sides of a case.
In addition to providing a background on child witnesses, this article examines three areas of research on child witnesses relevant to CSA cases and discusses how that data support both the defense and the prosecution. These three areas are: (1) children's memory; (2) children's suggestibility; and (3) diagnosing abuse. Readers who are interested in a more thorough treatment of child witness issues in their full breadth might wish to review additional resources that provide an overview of issues related to child witnesses.(fn3)
Child Witnesses: Background
Most children who testify in criminal court are doing so about alleged activities perpetrated on them; in many cases, they are testifying about alleged sexual abuse. The primary reason for this is not that children fail to witness other crimes, but because generally they are not ideal witnesses. Also, for some children, the process of investigative interviewing may be perceived as an extra stressor to be avoided when possible. When children are not the victim of a crime, such as in a property or drug case, other witnesses or physical evidence likely will be available. Generally, adult witnesses or other types of evidence are preferred over statements made by young children, and child witnesses generally are called to testify as a last resort.
In some CSA cases, particularly when additional physical abuse is alleged, physical evidence from the child's body can be used to corroborate his or her report. However, in many CSA cases, such medical corroboration or other witnesses are unavailable. Thus, in many such cases, the child must be called as a witness.(fn4)
Jurors and Witnesses
Although for the most part they have a reasonably accurate perspective about many areas of eyewitness research, jurors(fn5) and even judges(fn6) have several common misconceptions. For example, both jurors and judges often believe that eyewitness confidence is related to accuracy,(fn7) which frequently is not the case.(fn8)
Jurors often rely too heavily on minute details and underestimate the importance of effective indicators of eyewitness accuracy, such as how long the witness was able to view the perpetrator, as well as what other perceptual conditions were present, such as whether it was light enough to observe the perpetrator's face. Jurors often lack knowledge of factors that interfere with accurate retention, such as the impact of stress on perception and memory,(fn9) and sometimes can be insensitive to biases that are introduced during a criminal investigation.(fn10) Expert testimony on these topics has long been admissible in appropriate cases in Colorado.(fn11)
Jurors and Child Witnesses
In many studies, expert testimony has been found to have some effect on jurors' perceptions and verdicts. Many studies find an effect of expert testimony on jurors' judgments in mock cases.(fn12) In addition to misconceptions about eyewitnesses generally, jurors have stereotypes about child witnesses and sexual assault.(fn13) In mock CSA cases, jurors are found to be influenced by these stereotypes. Age-related stereotypes, such as expectations about what a child of a particular age is capable of remembering or reporting, directly impact perceived credibility of child witnesses.(fn14)
However, children are not consistently viewed as more or less credible than adult witnesses.(fn15) Case characteristics affect how jurors perceive child witnesses, and there is some evidence that children are viewed as more credible in civil cases than criminal cases;(fn16) in sexual assault cases than in robbery cases;(fn17) and when their emotional expression is congruent with the testimony - for example, when displaying emotional reactions when testifying).(fn18)
Also, the gender of jurors can affect their perceptions of child witnesses. Researchers have found that women jurors: (1) are more conviction-prone than men in sexual assault cases;(fn19) (2) believe children more than men do;(fn20) (3) find children more credible than men do;(fn21) and are more likely than men to recommend that the defendant serve the entire sentence.(fn22)
Testimony
Colorado case law does not allow lay or expert testimony regarding the truthfulness of a child's statements.(fn23) It does allow clinical psychologists to testify to what they believe are post-trauma behavioral characteristics of child sex victims.(fn24 )However, as discussed below, empirical research indicates that no behavioral characteristic is reliably diagnostic of sexual abuse. This variance between the results of scientific research and Colorado case law makes the issue of how jurors perceive scientific and non-scientific evidence pertinent to legal practitioners handling CSA cases, and may require the courts to review the prudence of prior decisions.
Colorado Rule of Evidence 702(fn25) allows both scientific and non-scientific opinion testimony that is based on a reliable methodology as measured by the standards of practice in the particular field.(fn26) Different standards may be used to judge different types of evidence.(fn27)
An experimental psychologist who is trained in the scientific method and familiar with studies in the relevant field can provide a jury with insights derived from empirical research. A clinical psychologist who has counseled child victims of sexual abuse has first-hand experience with the behaviors of some victims. Thus, each specialty provides a different kind of knowledge. Empirical research relies on the scientific method; uses statistically significant, objectively validated samples of subjects; and makes explicit the rate of error inherent in the data. Although therapists are experienced at counseling victims of abuse, it is questionable whether they should ever be allowed to generalize their anecdotal experiences to the facts of an unrelated case. In some cases, anecdotal evidence can be useful; however, if there are data on the issue presented, the empirical evidence would be preferable. If there is empirical evidence that directly contradicts the experience of the expert, or at least qualifies his or her statements, serious questions arise as to the admissibility of the non-scientific expert's opinion.
There is some evidence to suggest that jurors weigh anecdotal non-scientific testimony more heavily than scientific testimony.(fn28) Further, jurors give more weight to testimony of scientific experts that goes beyond describing the scientific studies to tie those studies to the case at hand,(fn29) which many scientists will not do. This divide between types of experts is part of the reason the court may see vastly different opinions between two psychological experts - particularly if one expert is testifying based on experiences and the other is testifying based on knowledge of the...
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