TASK 3: CREDIBILITY ASSESSMENT IN COURT: DO CHILDREN LIE?
LEARNING GOALS:
1. What is credibility assessment?
2. How is the credibility of children usually assessed in court and is it effective?
Credibility assessment is what expert witnesses do. Credibility judgment is what juries do.
CBCA is part of SVA. Sadly, often only the CBCA is performed. CBCA is valid + reliable, but not really
accurate.
3. Which factors influence the credibility (assessment) of children?
4. Do children lie?
5. Can children be coached into lying?
6. How can we detect children’s lies (coached vs not coached)?
Ernberg et al. (2018) – Court evaluations of young children’s testimony in child sexual abuse cases
Purpose of study: Prosecutors working with child sexual abuse (CSA) cases involving young children
have raised concerns that reliability criteria from Supreme Court of Sweden are holding children’s
testimony to impossible standards (e.g., expecting the child’s testimony to be long, rich in detail and
spontaneous). This study aimed to address these concerns by investigating how District Courts &
Courts of Appeal employ said criteria in their testimonial assessments of young child complainants.
- Central focus: the frequency of use of the Supreme Court criteria, and whether the criteria
were used for or against the credibility of the child & the reliability of their testimony
- Also examined: whether the usage of criteria differed in cases with strong vs weak
corroborative evidence, whether there was a relation between the complainant’s age & the
use of criteria, and whether use of the criteria differed in convicting & acquitting verdicts
Methods: Court documents from District Courts (N = 100) & Courts of Appeal (N = 45) in CSA cases
involving 100 children age 2-6 years were analysed with respect to courts’ testimonial assessments.
- The study object: the official statements produced by judges after their decisions in criminal
cases, which includes: assessments of the child’s testimony; info about the police
investigation leading up to the court hearing; descriptions and assessments of the
defendant’s and witnesses testimonies; info about the evidence presented in court
- The search resulted in 70 District Courts verdicts, of which 35 were also tried in a Court of
Appeal, involving 100 complainants (45 verdicts contained charges of multiple complainants)
Introduction
- CSA cases remain challenging for the legal system to handle, because :
o Many CSA cases lack corroborative evidence
o Testimony from the complainant is often required to shed light on the offence, even
in cases where corroborative evidence is plentiful
- While CBCA & RM emerged from different backgrounds (CBCA is based in the experience of
psychologists giving expert testimony in court, and RM is based in memory theory), both tools
have a success rate of ~70% in discriminating between truthful & deceptive statements
o Both are more successful in singling out truthful statements than deceptive ones
- However, RM & CBCA are rarely used in practice. Instead, many countries use other criteria
for assessing testimony. In Sweden, assessment of evidence such as testimony is not
regulated by law. The Supreme Court can advise on such matters in legal precedents, but
these precedents are not binding
o Similar criteria as those suggested by the Supreme Court in Sweden are being applied
in asylum cases as well as in courts in other countries
, o Specialized child prosecutors have expressed concern that criteria for evaluation of
testimony from the Supreme Court may result in young children’s testimony being
held to standards that don’t comply with their witness ability
The criteria were produced for the evaluation of testimony in sexual abuse
cases, where a scarcity of corroborating evidence often leaves the court
having to decide whether testimony given by a complainant is reliable
The Supreme Court criteria come without training or guidelines, there are no
reference points for the criteria, and the precedent does not include clear
definitions of the concepts, e.g. what aspects define a vivid testimony
o The Supreme Court criteria do not derive from research, but from experience in
adjudicating criminal cases. Consequently, the criteria have varying degrees of
scientific support & may be more or less applicable to complainants’ testimony in
general and young children’s testimony in particular
Cognitive development is in progress throughout childhood, & young children
cannot be expected to remember & retell an event as well as an adult
Compared to older children, there are limitations to virtually all
aspects of the youngest children’s memory & communicative skills
o Language development occurs rapidly through early
childhood and contributes to the ability to encode, store,
and retrieve info from memory, as well as to children’s
ability to understand questions asked during an interview
o Younger children give briefer & less detailed testimony than
do older children
Maltreatment affects a # of cognitive functions
Maltreated children could therefore experience increased difficulties
testifying in legal settings
Children with a history of abuse & neglect provide less info in their
free recall & show reduced performance compared to non-
maltreated children on certain tasks, e.g. answering specific
questions & recalling from emotional word lists
Sexual abuse can create difficulties for children reporting the crime
Children often omit sensitive details from their testimony for reasons
beyond memory limitations
Children’s reluctance to disclose to disclose sexual abuse does not
warrant the use of leading questions, as this type of misinformation
tends to impair especially young children’s memory performance
District Courts: consisting
of one judge + three lay
judges.
Courts of Appeal:
consisting of three judges +
two lay judges.
Results – Testimonial
assessments in District
Courts
- In 80% of the cases,
the defendant was
convicted on at
, least one charge of abuse. In the remaining 20 cases, the defendant was acquitted on all
charges of abuse
- Strong corroborative evidence (= documentation of abuse, DNA, or conclusive medical
evidence) was available in 59 (59%) cases
o Significant relation between the strength of evidence & the outcome in court
96% of cases with strong corroborative evidence & 45% of cases with low
corroborative evidence resulted in a conviction
o The court was more likely to apply one of the Supreme Court criteria in cases with
evidence of low corroborative value
- The District Courts applied at least one of the Supreme Court criteria in their assessments of
66 complainants’ testimonies
o At least one criterion was applied in 54% convicting cases & in 65% acquitting cases
o With increasing age of the child, more criteria were applied to their testimony
Child’s age explained a significant proportion of variation in # of criteria used
Results – Testimonial assessments in Courts of Appeal
- 45 of the 100 complainants had their cases tried in Courts of Appeal
o In 62% of the cases, the defendant was convicted on at least one charge of abuse,
and in 38% cases the defendant was acquitted on all charges of abuse
- The Court of Appeal came to the same conclusion in the case (= either convict or to acquit
the defendant on all charges) in 80% of the cases
o In 18% of the cases, the verdict changed from a conviction to an acquittal
o One verdict (2%) was changed from an acquittal to a conviction
- In 49% of the cases, the Court of Appeal made a different assessment of the complainant’s
testimony than did the District Court
o A different evaluation of the complainant’s testimony was cited as the, or one of the,
main reasons for the change in outcome in 50% of the cases where the Court of
Appeal changed the verdict from conviction to an acquittal
- At least one of the Supreme Court criteria was applied in the evaluation of the complainant’s
testimony in 33% of the cases
o Applied in 21% of the convicting cases, and in 53% of the acquitting cases
Discussion
- At least one criterion was applied to the complainant’s testimony in 66% of District Court
cases, and in 33% of Court of Appeal cases
- In 20% of the cases, the Court of Appeal changed the verdict
o Only 1 of these cases was changed from acquittal in the District Court to a conviction
in the Court of Appeal
o In 49% of the changed cases, a different evaluation of the complainant’s testimony
was cited as the, or one of the, main reasons for the changed verdict
A disagreement regarding the complainant’s testimony was the most
commonly cited reason for the Court of Appeal to acquit a defendant who
had been convicted in a District Court
- The most frequently used Supreme Court criterion = richness in detail
o Applied to the complainant’s testimony in 28% of cases by both courts
o In 66% of these assessments, the court stated that the complainant’s testimony met
the criterion (= that the testimony was rich in detail)
o The criterion was used against the reliability of the testimony in 43% of the cases,
where the testimony did not meet the criterion
Using the lack of detail against the reliability of young children’s testimony is
potentially problematic. These children’s testimony typically does not
