Vol. 5, No. 10 (October, 1995) pp. 236-238
CHILD WITNESSES: FRAGILE VOICES IN THE AMERICAN LEGAL SYSTEM by
Lucy S. McGough. New Haven, CT: Yale University Press, 1994. Pp.
339
Reviewed by Raymond Paternoster, Department of Criminology &
Criminal Justice, The University of Maryland.
Who among us has not been riveted by media portrayals of criminal
or civil trials where a prominent role was played by a child
witness? Among the most widely broadcast and sensationalized of
these cases are those involving child sex abuse, such as the
McMartin Pre-School case in California and The Little Rascals Day
Care Center in North Carolina. The McMartin case was
extraordinary in that the children involved made fantastic
charges against the defendants involved, such as witnessing a
beheading, being forced to drink blood, and watching one of the
care takers fly through the air. Although the McMartin cases was
extraordinary in terms of its content, it was comparable to
hundreds of other cases that were entering the American criminal
and civil justice system in the 1980's that relied almost
exclusively on the testimony of a child. In addition to child
abuse cases, the voices of children were being heard in custody
matters and civil disputes. In each of these cases to varying
degrees, very thorny legal and social scientific issues were
present, if not raised. Among the issues raised were the adequacy
of protections provided in court by child victims of sex abuse
who were confronted by their offender (and usually family member
in court), the effect on the reliability of child testimony that
was made long after the event occurred and often after repeated
interviewing, the possible bias introduced and reliability of
testimony lost when questioning of the "fragile" minds
of children were undertaken, the adequacy of existing hearsay
rule exceptions when psychologists, ministers, or a parent
testified on behalf of a child who was too traumatized, too
intimidated, or too forgetful to testify, and the effect of
children's out-of-court testimony on a defendant's right to
confrontation and cross-examination.
The issues involved in these matters, then, is the very
convergence of law and social science. There are legal matters of
hearsay requirements, the labyrinth of exceptions to the hearsay
rule, confrontation rights of suspects, and various child-shield
legal reforms enacted in large measure in response to
McMartin-like cases in each state. There is also involved in
these cases difficult social science questions, such as the
general reliability of children's testimony, the effect of age,
intelligence, maturity, and time on memory fade as well as the
suggestibility of children's testimony to numerous and biased
interviewing.
Professor Lucy McGough, the Vinson and Elkins Professor of Law at
Louisiana State University, takes us through this
rough-and-tumble world of law and social science in a remarkable
book that has the unique combination of being both thorough and
imminently readable. As suggested in the preceding paragraph, the
task before her is Herculean, for she must provide an account of
complex legal and psychological literature. She must be lawyer
and social scientist as well as gifted writer. She is all of
these in this book. In the introduction, Professor
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McGough notes that she has tried to "demystify some of the
more forbidding jargon of each discipline". She has done so,
and has written a book which will be of enormous value to legal
professionals, psychologists working in the area of children's
testimony, and those like me who are just interested in this
fascinating area that brings law and psychology so close.
The book has a clear thesis and direction. It begins with a
discussion of sensationalized child sex abuse cases, like the
McMartin Preschool case, that had the effect of making it easier
for children's testimony to be received in court. The surge of
legal activity in the wake of cases like McMartin Preschool
brought about three specific legal reforms: (1) the court process
was modified to reduce the trauma experienced by child witnesses
(among the most controversial were child shield statutes), (2)
the investigation of charges levied by or on behalf of children
was abbreviated, and (3) hearsay exceptions were expanded. One of
the premises of these legal reforms was the perception that
children were very fragile witnesses with equally fragile
abilities to accurately recall and express their experiences
absent supportive legal reforms. But are they? The question is
one that can be answered with reference to an abundant, and
growing social scientific literature that concerns these very
abilities of children.
With this introduction as her guide, Professor McGough then takes
the reader on a fascinating journey down several avenues. One is
through the social scientific literature. This literature is
formed by masses of experiments, mainly be psychologists, on how
children process and recall information, how susceptible they are
to memory fade over time and how subject they are to deliberately
or inadvertently biased interviewing. There are scores of
studies, that are helpfully arranged, organized, and interpreted
by Professor McGough. Her discussion of the social scientific
literature reads more like a well crafted detective novel than
the obligatory literature review of the average doctoral
dissertation. The experiments come to life because she has
cabined their most important points, and she relates them to
troubling legal issues that courts struggle to deal with when
confronted with the testimony of children.
With the backdrop of the social scientific literature, Professor
McGough then takes us into the criminal and civil court room.
Here we learn that the presumption made by courts in response to
the child abuse hysteria is not well predicated on the social
scientific findings. There are two particularly interesting
features of her legal analysis. One is her discussion of the
hearsay rule and its many exceptions. Professor McGough deftly
describes this body of law and its relevance to the issue at
hand. What could have been very baffling is made wonderfully
clear. I would have bet the farm that a legal scholar could not
describe such an arcane body of law in such a manner that a
non-lawyer could understand. I would have lost that bet. The
second extremely interesting journey we go on is her discussion
of the adequacy of current judicial practices to get at the
truth. She convincing details how the current system, which is
characterized by long delayed and repeated interviews where the
child finally appears in court to testify and be cross-examined,
is about THE WORST possible way to obtain reliable testimony.
Much to her credit,
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Professor McGough spends a good part of her book discussing her
version of appropriate legal reform. The book ends with an
extremely informative chapter on expert witnesses who assess the
credibility of either child witnesses or other experts. Those who
appreciate the ironies in Carroll's Alice In Wonderland will love
this chapter.
In sum, Professor McGough has written a truly remarkable book. It
is deserving of all the superlatives of any great book; it is
entertaining, well written, well organized, coherent, and
concise.