Richard D. Friedman is a professor at the University of Michigan Law School. Stephen J. Ceci is a professor in the Department of Human Development at Cornell University. They submitted an amicus brief in Ohio v. Clark.
This term, the Supreme Court has an opportunity to dramatically improve how our criminal justice system treats statements by very young children — if it is willing to look beyond the two bad options adopted by the lower courts and consider instead a creative, constitutionally appropriate middle path.
Last week, the court heard oral arguments in Ohio v. Clark, which hinges on the words of a 3-year-old boy, identified in court papers as L.P. When he arrived one morning at his Cleveland preschool with bruises on his face, staff members asked him who had done that to him. L.P. ultimately answered: “Dee”— meaning Darius Clark, his mother’s boyfriend. The preschool passed this information on to the police, as state law required.
Clark was charged with abuse. At his trial, the court determined that L.P. was not competent to serve as a witness, but it allowed members of the preschool staff to testify about what he had said to them. Clark was convicted.
That is a very troubling result. Clark’s conviction depended on the identification made by L.P., but no one representing Clark ever had the opportunity to ask L.P. any questions.
Clark complained that the trial court had violated his right, under the Sixth Amendment, “to be confronted with the witnesses against him.” The Ohio Supreme Court agreed; L.P.’s statement could not be admitted unless he testified at trial.
If L.P. were, say, a teenager, that would be the correct ruling. The confrontation clause ensures that witnesses testify at trial, while under oath and subject to cross-examination. They cannot give testimony by speaking to police at a station house or to teachers at a school and then avoid going to court.
But given L.P.’s age, excluding his statement unless he were to testify at trial would also be a highly unsatisfactory result. Such a young child often has trouble, at least without extensive prompting, recounting something that happened to him a considerable time earlier. And the child is unlikely to be able to give meaningful answers to a defense lawyer’s questions during cross-examination — a disastrously poor method of securing the truth from very young children.
We believe a third possibility can solve this dilemma. L.P. should be treated not the way we treat adult witnesses but rather the way we treat non-human sources of evidence. Clark should not have a right to cross-examine L.P. at trial through an attorney. Instead, he should be able to choose a qualified forensic examiner to interview L.P., under a prescribed protocol, in an attempt to determine whether there are grounds for doubting L.P.’s statement that Clark abused him.
To be a witness requires some comprehension of the potential consequences of one’s words: “As a result of my statement,” the witness must understand, “my listeners may believe that what I say happened did in fact happen; as a result of that belief, they may take action; and as an ultimate result of that action, the person whose conduct I am describing may suffer serious consequences. Accordingly, my listeners, or others, regard it as important that I speak truthfully.”
This chain of causation invokes the perceptions, understandings, desires and reactions of others, including people not part of the immediate conversation. Comprehending all of this is far beyond the cognitive ability of very young children.
This is not to deny that L.P.’s statement was significant evidence in this case. To the contrary, it may have been highly probative, though it is also obviously open to question. Young children often tell the truth, but sometimes there are problems — corrupted memories, confusion, susceptibility to suggestion — that lead them to speak inaccurately.
In many settings, an accused has a right, as a matter of fundamental fairness, to have a qualified expert inspect, examine and test a source of evidence that may be offered against him — bullet casings, DNA and so forth. The expert attempts, in particular, to determine whether there are plausible explanations for this evidence other than the accused’s guilt.
Granting Clark such a right with respect to L.P. is correct on principle — and it would also have huge practical advantages. First, it would ensure that the critical evidence of the child’s statement is not excluded from the adjudicative process.
Second, it would give the accused a right that better protects his legitimate interests than does cross-examination. A qualified interviewer, alone with the child in a comfortable room, has a much better chance of exposing any problems with a child’s account than does a lawyer conducting cross-examination.
And finally, testimony at trial is simply hard on a child, even if, as is sometimes permitted, the child is allowed to testify outside the presence of the accused. The procedure we propose would be much gentler.
This is a situation that can be improved for the accused, the child and our adjudicative system. All it will take is for the Supreme Court to refuse to settle for a bad outcome.
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