Competency for the Youngest Witnesses
New USC-UCLA Test Lets Children Show They Know the Meaning of "The Truth, the Whole Truth..."
Even all these years later, USC researcher Tom Lyon is convinced that the little girl who was approaching her fifth birthday should have been allowed to testify against the man accused of sexually assaulting her.
"If you don't tell the truth," the prosecutor asked the girl in a 1989 hearing to establish her competency to testify, "do you know what will happen to you?"
"I can tell you just what happened," she responded confidently. "He just looked down my privates and touched me there."
Ultimately charges were dropped against the suspect after the prosecutor tried and failed five more times to demonstrate that the girl - the only witness to the crime - understood the importance of telling the truth in court.
"You've got this really smart little kid, and a lawyer who does not know how to ask questions," says Dr. Lyon, Ph.D., J.D. "Because the lawyer doesn't understand how to approach the child, she doesn't get to speak her piece. It's incredibly unfair."
This and other botched competency hearings inspired Lyon, who is also a developmental psychologist, and University of California Los Angeles psychologist Karen J. Saywitz to develop a new instrument to help children meet the two basic requirements of demonstrating competency to take a courtroom oath: knowing the difference between the truth and a lie and understanding the importance of swearing to tell the truth, the whole truth.
Based on simple picture identification tasks, the Lyon-Saywitz Oath-Taking Competency Picture Task asks child witnesses to identify when story characters are lying and telling the truth and identify the consequences of the story character's actions.
"It's really helpful," says Jill Franklin, a Los Angeles dependency court attorney who has successfully used the test. "Kids get it. The judges find it useful."
By turning the child's attention to a story character, the test sidesteps two mistakes common among even the best prosecutors.
In an attempt to get their young victims to demonstrate an understanding of the truth and lies, prosecutors tend to ask children to define words or explain the difference between them. In the pressure of a courtroom setting, even well-rehearsed children stumble.
Then to demonstrate that children understand the importance of telling the truth, prosecutors tend ask the children to imagine the consequences if they or their attorney lied. Invariably, children freeze up at the prospect of having to identify themselves or an adult - even hypothetically - as a liar.
"If you tell a lie," the lawyer asked in the 1989 case, "will you get into trouble?"
"But I'm not going to lie," the little girl protested.
Lyon and Saywitz have made the test available free of charge to more than 100 lawyers at scholarly and professional meetings, including two recent presentations before the Dependency Division of the Los Angeles County Juvenile Court. A variation of the test also appears in the latest edition of "Evidence in Child Abuse and Neglect Cases," the leading manual in the field.
Eventual plans include posting the test and research illustrating its effectiveness on a Website, so that attorneys in even the most remote locations can easily download it.
"This is not about making royalties for developing a diagnostic instrument," says Lyon, an associate professor at USC's Law School. "We want to make this test as widely available as possible."
Now a new study provides Lyon and Saywitz with additional ammunition in their quest to persuade attorneys to adopt theirs or some other simple competency test.
In a study in the current issue of Applied Developmental Science, Lyon and Saywitz compare the performance of 192 children awaiting hearings in Los Angeles County's dependency court on simple and more complicated competency tasks. Ranging from 4 to 7 years old, all of the children - who had allegedly been maltreated - had been removed from their parents.
While the child development literature is rife with studies about children's understanding of truth and lies, nobody had ever examined the understanding of these concepts among maltreated children - much less the children who end up in dependency court. Neither had anybody ever looked at approaches to determining competency being used by actual attorneys.
Despite serious delays in language development, most of the 5-year-olds in the study, correctly identified truthful statements and lies as such and recognized that lying is bad and would make authority figures mad.
"It's not unusual for defense attorneys to demand competency tests for children as old as 10, and a recent poll found that judges believe that 7 is the youngest age at which most children are competent," Lyon says. "Our findings clearly show that children can be trusted much earlier than commonly thought to understand what they're promising when they swear to tell the truth in a court of law."
Of the children in the study who clearly exhibited an understanding of the difference between the truth and lie, 69% failed adequately to explain the difference between the concepts, and 61% failed to adequately define either telling the truth or telling a lie.
"This means conventional approaches to evaluating children as witnesses in abuse and neglect cases may be needlessly disqualifying up to 70% of children," Lyon says.
In fact, very few children younger than 7 (8% of 4-year-olds to 17% of 6-year-olds) were able to provide a minimally sufficient description of the difference between truth and lies, and only about half (46%) of the 7-year-olds were able to do so.
"We expected to find that children perform better on an identification task than on tasks that involve defining words or explaining the difference between concepts, but we were really surprised by how much better they did," says Saywitz, an associate professor of psychiatry at UCLA.
Lyon and Saywitz credit their unique backgrounds for their strides in competency testing. Lyon had worked for eight years as an attorney in the Dependency Division of the Los Angeles County Juvenile Court. Saywitz, meanwhile, treats maltreated children as the director of child and adolescent psychology at Harbor/UCLA Medical Center. They met when Lyon was doing a post-doctoral fellowship in child psychology in UCLA. He pursued the doctorate after working in juvenile court when he was fresh out of Harvard Law School.
"We both have practical experience with the kids in the court system," Saywitz says. "Past researchers in lying among children come from the field of developmental psychology and from a more theoretical than applied perspective."
Remarkably simple, the Lyon-Saywitz test consists of two types of illustrations. The "reality story" shows two boys standing before a judge with a easily identified object such as an apple above the judge's head. A different object appears in "talk bubbles" above each boy's head. One of the objects matches the dominant image (apple), while the other (such as an orange) does not.
"The prosecutor says, 'Listen to what one boy is saying about the picture. He says it's an apple,'" Saywitz explained. "'Now listen to what the other boy says. He says it's an orange. One of the boys is telling the truth and one of the boys is lying. Point to the boy who is lying.'"
For the second phase - "the morality task" - the prosecutor shows the child witness another simple drawing, this time illustrating two children standing before one of four female adults "who want to know what happened": a doctor, grandmother, judge or a "lady who comes to see the boys at home" (a social worker).
"The prosecutor tells the witness that one child is telling the truth and one child told a lie and asks the witness to identify which child 'is gonna get in trouble,'" Lyon says.
By varying the questions and repeating both tasks four times, the prosecutor can reduce to less than 7% the likelihood that a child is merely guessing correctly.
"It's virtually impossible for a child to guess his way through the procedure, and if we don't use such an approach we are going to be unable to qualify a lot of children," Lyon says.
EDITOR: Dr. Lyon is a resident of West Los Angeles
Journal
Applied Developmental Science