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

Page 236 follows:

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,

Pge 238 follows:

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.