|| Child Witnesses: Fragile Voices in the American Legal System
|| Lucy S. McGough
|| Yale University Press, ©1994
Yale University Press
P. O. Box 209040
New Haven, CT 06520-9040
Using the device of focusing on specific, high visibility cases that have reached appellate level decisions, Lucy McGough, a law professor, brings together a trenchant criticism of the weaknesses and
flaws in the legal system and a discussion of current social science research that addresses the problems identified. Throughout, McGough also shows a warm and compassionate understanding of the consequences for children when they are embroiled in the legal system. Combining these concepts produces suggested reforms that may partially resolve the tension between preserving and protecting the constitutional rights of citizens and the interest of the state in protecting children. The 339-page book contains citations for relevant cases and the book ends with 23 pages of references and a useful index.
There are three areas of reform recommended: videotaping children's testimony; reducing the number of interrogations of children; and tightening the admissibility of out of court hearsay statements. While not specifically stated as a goal, the book is surely aiming at increasing the accuracy of the decisions made in the justice system.
Unfortunately, in the apparent desire to remain balanced, conclusions based on scientific research of questionable quality are sometimes overstated. In some instances, earlier research from the
first efforts to show children are reliable witnesses is given more weight than it now merits. In discussing the claims by adults of recovered memories of childhood sexual abuse, the strong evidence falsifying the Freudian concept of repression is ignored. Repression and the recovery of memories is accepted as a possibility to which the legal system must attend. The principle that falsification of a theory or concept can be accomplished by a single well-done study which then outweighs many studies apparently supporting it is not acknowledged. The consequence is that in each chapter there are presentations of information as if keeping a box score of studies is determinative. Nevertheless, McGough reaches the
final point of asserting that the scientific research means children as witnesses must be treated with caution while doing everything reasonable to allow them to produce reliable information with minimal stress.
The legal analysis of the issues surrounding the admission of hearsay statements is excellent. It is detailed, clear, and persuasive. The case law and the appellate decisions are brilliantly distinguished and sharp discriminations made that permit the recommendations decreasing the applicability of hearsay exceptions while still permitting what can be shown to have indiciae of reliability. The discussion of the medical treatment exception to the hearsay rules is arguably the most succinct and clear examination of this difficult concept available. Legal scholarship is the best part of this book.
This book can be read with immense profit by any professional involved in the legal system's interactions with children. Mental health professionals can learn much about the law and how it functions from this book and also get a respectable review of the relevant scientific data available. Judges who must make trial decisions about competency, admissibility, and the extent of evidence may well benefit the most from carefully studying the legal reasoning and learning about the relevant scientific research evidence.
Reviewed by Ralph Underwager, Institute for Psychological Therapies, Northfield, Minnesota.