Testimony, Children's Competence for

Testimonial competence refers to the capacity of an individual to provide testimony in legal proceedings. Testimonial competence can be questioned for a number of reasons, including temporary or permanent mental disability or incapacitation. Youthful age is the most common reason to question testimonial competence, however (McGough, 1994; Poole & Lamb, 1998). Under early British common law, which was subsequently adopted in the United States, children were presumed incompetent until they attained the age of reason at 7 years. Since the 19th century, judges have been empowered to determine whether a specific child can be deemed competent to provide testimony about a particular event or issue.

Testimonial competence has two key elements, one cognitive and one motivational: the capacity to provide information accurately and the motivation to testify truthfully (Myers, 1997). Until quite recently, many jurists questioned the capacity of young children to distinguish between reality and fantasy, to remember central details about experienced or observed events, and to describe these details using clear and interpretable language. Extensive research, especially in the past two decades, has largely quashed these concerns, however (Lamb, Sternberg, Orbach, Hershkowitz, & Esplin, 1999; Poole & Lamb, 1998). Specifically, research reviewed by these authors makes clear that most children, including preschoolers, can distinguish among imagined events, experienced events, and events learned about in other ways (e.g., by being told or reading about them). Children do forget information more rapidly than older individuals, but their accounts are equivalently accurate, even when they are sparse, provided that the children are appropriately and carefully interviewed. Even their linguistic capacity to describe events appears adequate, although they may sometimes use idiosyncratic terms that are initially confusing and may require some exploration.

Communicative problems do arise, however, when interviewers employ terms and complex sentence structures that confuse children. Inaccuracy is also induced when impatient adults fail to allow children to recall information and instead probe using questions that elicit inaccurate information or contaminate the child's memory. Children can thus be highly reliable informants when interviewed appropriately.

Children who are motivated to be truthful informants, meanwhile, need to understand the difference between truth and falsehood and should understand the consequences of failing to be truthful. Of course, most children, like many if not most adults, are incapable of defining truth even though they understand what the term means. This underscores the importance of probing children's understanding of the concept at its most basic level and of using concrete rather than abstract tasks to measure children's understanding. As might be expected, the ability to understand “truth” is achieved much earlier than the ability to define it, and the majority of 4- to 5-year-olds know the difference between lying and telling the truth (Lyon & Saywitz, 1999). Even when children understand the concept of truthfulness, however, competence requires that they realize the importance of being truthful and recognize that there can be serious consequences for untruthful responses.

Although there are wide individual differences, especially among 4-year-olds, many experts believe that the majority of 3-year-olds are probably not testimonially competent. The majority of 5-year-olds are competent, provided they are carefully questioned by adults who recognize the many ways in which the communication process can be disrupted.

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