Out of the Mouths of Babes

By Burnett H. Beach

More, and younger, children are climbing onto the witness stand

Eleven-month-old Matthew Cromwell was listless and had vomit in his hair when his mother picked him up in 1981 at the day care center in Clayton, Calif. Eight hours later he was dead of asphyxiation, apparently caused by blows to the stomach. Dozens of other children, their parents later reported, had come home from the same center with large bruises and emotional scars. Arrested for murder and child abuse, the center's operator, Eleanor Nathan, 36, knew that the only eyewitnesses against her were youngsters. Until lately the testimony of little children was rarely allowed in court, but that is changing. This month, after 19 of her former charges were permitted to testify, Nathan was convicted of first-degree murder and twelve counts of felony child abuse. She will be sentenced in two weeks.

As the Nathan case demonstrates, what comes out of the mouths of babes is now often admissible as evidence and is more and more believed by judges and juries. No landmark decision is responsible for the development. Unlike adults, youngsters are still presumed to be incompetent witnesses in most states. To overcome that presumption, they must convince the judge that they have reliable memories, understand the difference between truth and falsehood, and know that lying is wrong. Most children cannot satisfy those requirements before turning seven, but there are a growing number of exceptions. An increase in child abuse prosecutions is one reason for the trend. Another is the accelerated rate of maturity among the young. Says Washington State Supreme Court Justice Charles Stafford: "It's not just high school students who are more sophisticated; it goes all the way down to grade school."

To be effective witnesses, children need gentle, careful preparation. Seattle prosecutors develop rapport by working with youngsters in a room filled with toys and coloring books. Recalls Social Worker Lucy Berliner: "Once during an interview there, the prosecutor and I lay on the floor playing Candy Land with a little girl as she told us about being molested." Also important is a visit to the courtroom so the child can sit in the witness chair and become familiar with the surroundings.

Sometimes children are reluctant out of fear they will be blamed if the defendant in abuse cases, often a parent or family friend, is convicted and punished. Says Carol Schrier, director of the Support Center for Child Advocates in Philadelphia: "We emphasize that the judge or jury makes the decision." Experts are careful, however, not to sugar-coat the potential outcome. "If it's going to involve the possible jailing of a parent, I think they have a right to know that," says Patty Coleman, a Philadelphia psychiatric social worker.

Lawyers try to frame simple questions that give the youngster a concrete sense of abstract concepts. In the successful California prosecution of Kidnaper Kenneth Parnell, for example, Deputy District Attorney George McClure established his witness's competence by picking up a pen and asking the victim, Timmy White, then six, "Timmy, if I told you this thing in my hand is an ice cream cone, would it be the truth or a lie?" To put children at ease, some judges bend courtroom rules a bit. In one Seattle trial, a 5 1/2-year-old witness was allowed to sit on her mother's lap.

How accurate is the testimony of children? Their visual powers and memories are every bit as good, or bad, as adults', contends Shirley Robinson, executive director of the Child Sexual Abuse Treatment and Training Center of Illinois. "Preschoolers can't remember their addresses," she notes, "but they can remember the print of the wallpaper in the room where they were molested." Experts disagree about whether children are unusually suggestible. As for possible youthful flights of imagination, Child Advocate Schrier says, "Kids don't fantasize about a sexual abuse incident."

Perhaps young witnesses' greatest handicap is their limited vocabularies. In sexual abuse cases, lawyers employ a new kind of visual aid: dolls with sex organs. Using a pair of dolls, a witness can play-act what happened. Jurors in Red Wing, Minn., found this tactic thoroughly convincing in the prosecution a year ago of James Cermak, 27, for sexually abusing ten children. After four of them used dolls to show what Cermak had done to them, he was convicted and sentenced to 40 years in prison.

Cross-examining a child has its own set of pitfalls. A defense attorney who badgers a young witness risks alienating the jury, so the lawyer must probe inconsistent statements gingerly. Alternatively, the attorney can play on the still common belief that a child's word should be given less weight than a grownup's. As one juror from Laurel, Md., said after the acquittal of a woman charged with sexually assaulting a young boy, "It's very difficult to put someone in prison for something so serious, based only on a child's story."

For all the efforts to ease the child's natural problems in the witness chair, the experience can still be traumatic (as it often is for adults). In abuse cases, for example, youngsters must relive acutely painful incidents, and they frequently feel that they are the ones on trial. Those considerations recently cost Philadelphia Prosecutor William Heiman his sexual abuse case against the father of a four-year-old girl. She was the sole witness, and Heiman could not bring in her mother to relate what the youngster had told her because that would be inadmissible hearsay. The girl was not forced to testify, he says, because a "psychiatrist made it very clear that the child could be badly damaged."

That possibility is always a worry. "I don't like to see a child have to get up and testify," says Brenda Watson, a founder of the West Linn, Ore., firm that makes the anatomically correct dolls. "But what happened to him or her was worse. The only way to protect the children is to go through the judicial system." --By Bennett H. Beach. Reported by Magda Krance/Chicago and Laura Meyers/Los Angeles

With reporting by Magda Krance, Laura Meyers This file is automatically generated by a robot program, so viewer discretion is required.