False Memories and Young Child Witnesses

Abstract

This article looks at the problems presented by admitting statements made by young children at trial. Over time, presumed chronological thresholds for incompetence have all but disappeared in favor of general rules of competence that are agnostic about the reality of children’s susceptibility to develop false memories. Although the standard of competence requires a witness to understand the burden to tell the truth of what was witnessed, it does not adjust to accommodate the suggestibility of young children and their susceptibility to rumor, which has been shown in numerous studies in the field of developmental psychology. Especially troubling is a common rule that allows leading questions to be asked of children to elicit specific witness statements. Widening the scope of incompetence to react to social science understandings of the reliability of children’s statements poses too high an administrative burden. Instead, expert witnesses and jury instructions—which speak to credibility instead of competence—should be available to address social science findings.