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For 10 years, Tom Lyon watched child abusers beat the system because the only witnesses to their crimes – their young victims – couldn’t pass a courtroom competency test. Ironically, the USC legal scholar realized, it was the prosecutors, not the kids, who were incompetent.
“Because the lawyer doesn’t understand how to approach the child, the witness doesn’t get to speak her piece. It’s incredibly unfair,” says Lyon, who spent eight years as an attorney in the Children’s Services Division of the Los Angeles County Counsel before joining USC’s Law School faculty.
Lyon recalls one case in 1989, involving a 5-year-old victim of sexual abuse.
“I can tell you just what happened,” the little girl had confidently asserted at her competency hearing. “He just looked down my privates and touched me there.”
Ultimately, charges against the suspect were dropped after the prosecutor failed five times to demonstrate that the child witness understood the importance of telling the truth in court.
Tired of watching botched competency hearings like this, Lyon got together
with UCLA psychologist Karen J. Saywitz to develop an instrument that helps kids prove they know the difference between truth and lies, and that they understand the importance of swearing to tell the truth, the whole truth (the two basic requirements for demonstrating competency to take a courtroom oath).
The researchers came up with the Lyon-Saywitz Oath-Taking Competency Picture Task – a simple picture-identification tool that helps kids demonstrate their understanding of truth and lies, and the consequences of deceit.
Children usually fail competency tests because their lawyers ask them to define abstract terms and “imagine” that they or someone they know is a liar. Even bright, well-rehearsed child witnesses commonly freeze at both tasks. By introducing fictional characters and a simple story, the Lyon-Saywitz test sidesteps these problems.
The instrument consists of two types of illustrations: the “reality story” and the “morality task.”
The first shows two boys and an object – perhaps an apple – floating in the middle. The same object appears in a “talk bubble” above one boy’s head, while a different object – perhaps an orange – floats above the second boy’s head. One boy is telling the truth, the prosecutor explains, and the other is lying. The prosecutor then asks the child witness to point out the liar.
The “morality task” uses another drawing depicting two kids standing before an adult “who wants to know what happened.” One tells the truth, the other tells a lie, the prosecutor explains to the young witness. Which one will get in trouble?
By varying the questions and repeating both tasks four times, Lyon says the prosecutor can reduce to less than 7 percent the likelihood that a child is merely guessing correctly.
The test is already shifting the scales of justice in favor of child victims. Lyon and Saywitz have made their instrument available to practicing lawyers through journals and field manuals; they plan to publish it on the Web soon.
“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.”
A recent poll found that judges commonly believe that 7 is the youngest age at which most children are competent.
“It’s not unusual for defense attorneys to demand competency tests for children as old as 10,” Lyon says. “Our findings clearly show that children can be trusted much earlier than [that].”
In a study of 192 maltreated children, ages 4 to 7, awaiting hearings in L.A. County dependency court, he found that despite serious delays in language development, most of the 5-year-olds could correctly identify truthful statements and lies. They also clearly undersood that lying is “bad” and telling lies “would make authority figures mad.” Yet most of the same kids who had passed the Lyon-Saywitz test, proving themselves competent to testify, couldn’t explain the difference between truth and lies (69 percent), and couldn’t define either concept (61 percent).
Lyon doesn’t need to draw a picture to show what that means.“It means conventional approaches to evaluating children as witnesses in abuse and neglect cases may be needlessly disqualifying up to 70 percent of children,” he says.
LEARN MORE ABOUT IT
Truthful Consequenses
CHILDREN WHO SWEAR to tell the truth are nearly twice as likely to actually do so as kids who take no oath. That’s the gist of a new psychological study by researchers at USC and Stanford University.
The study tested the truthfulness of 6- and 7-year-olds slated to testify in neglect and abuse cases before the Los Angeles County Dependency Court.
“We’re really surprised with the results,” says USC child witness expert Thomas Lyon, a law professor who also holds a Ph.D. in psychology. “At best, we thought swearing to tell the truth would prove a meaningless formality. At worst, we thought it might scare the kids into silence.” It did neither.
Each child in the study was led into a room and left alone. An adult “confederate” entered, then invited the child to play with a miniature house. After a few minutes, the confederate ended the game, explaining: “We might get in trouble if anyone finds out we played with this.”
The exercise was intended to mirror real-life situations in which an abuser labels an activity as “wrong” and warns the victim not to tell. Playing without permission isn’t the same as child abuse, Lyon admits, but “the psychological dynamic is similar. All you have to say is, ‘We might get in trouble,’ and most kids will clam up.”
After the playhouse exercise, the children were assigned to three groups. Those in the “assurance” group were told that many others had played with the house, that it was “totally OK” and that they wouldn’t get in trouble. Those in the “oath” group were simply asked to promise to tell the truth. Those in the control group received no instructions.
When the kids were individually interviewed about the playhouse, as expec-ted, those in the assurance group were the most forthcoming. What took resear-chers by surprise was the effect of a promise. While only a quarter of the control-group subjects ’fessed up to their actions, half the oath-takers came clean.
The assurance approach, though most effective, runs the risk of producing false positives. In an earlier experiment, one child in the assurance group who hadn’t played with the house confessed anyway. Lyon plans to study what that false positive means in terms of eliciting false confessions and false allegations in court. More research also is needed, he says, to discover the effects of an oath when children are asked to supply details – not just answer “yes” or “no.”
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