Solving the judicial conundrum of child statements
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A recent unanimous decision by the U.S. Supreme Court poses a great conundrum for the way our criminal justice system treats statements by very young children.

One morning, Darius "Dee" Clark delivered L.P., the 3-year-old son of Clark's girlfriend, to his Head Start program in Cleveland. Staff members noticed marks on L.P.'s body suggesting abuse and, appropriately, questioned him. Somewhat bewildered, L.P. ultimately said, "Dee did it." Clark was arrested and charged with abuse.

The trial court held that L.P. was incompetent to testify as a trial witness, but that Head Start staff could testify as to what he told them. That evidence was crucial in Clark's conviction, and he was sentenced to a lengthy prison term.

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The Ohio Supreme Court voided the conviction on the basis that presenting evidence of what L.P. said without putting L.P. himself on the stand violated the right of Clark under the Sixth Amendment to the Constitution "to be confronted with the witnesses against him." But now, in Ohio v. Clark, the U.S. Supreme Court has unanimously held that this provision, the Confrontation Clause, does not apply to statements by such a young child.

We believe that the court’s decision is a sensible one, as far as it goes. Scientific research reveals that very young cannot appreciate the consequences of their statements or the gravity of those consequences. In this sense, they lack the capacity to be witnesses.

And, to the extent that the court's decision guarantees that statements like L.P.'s will be admitted at trial, this is positive as well; although very young children lack the capacity to be witnesses, their statements are often extremely valuable evidence, and their voices should be heard.

One inevitable result of Clark will be that fewer kids will have to come to court to testify, which in itself is good. But how should courts handle this new situation? Should they just let the secondhand evidence in without giving the accused an opportunity to examine the child?

We must not fall into the trap of assuming that because a child made a statement, it must be accurate. Very young children are particularly susceptible to memory errors, suggestions and coaching. In Clark, guilt hardly seems certain — L.P.'s mother, who put him to bed the night before his injuries were discovered and then left town, may have been the abuser, rather than Clark. Ohio is now prepared to cart Clark off to prison for many years on the strength of a teacher's recollection of a child's statement, without his having had any chance to examine the child. That is terribly unfair.

The solution to this conundrum, we believe, is to recognize that young children occupy a unique position: Even though they may not be capable of being witnesses, they are still the potential source of critical evidence — evidence that may be highly probative but is manifestly subject to challenge.

An accused should have an opportunity to examine the child and expose possible reasons to believe the child's statement is not accurate. But that opportunity should not be cross-examination by an attorney at trial — a notoriously poor tool for determining the truth of young children's statements. Rather, the examination should be by a qualified forensic interviewer chosen by the accused, operating on camera under a scientifically validated protocol approved by the legal system.

We believe that, given that the very young child lacks the capacity to be a witness, the accused has a right to such an examination under ordinary principles of due process. But even if not, states should establish this procedure as a matter of sound and fair policy.

The advantages of this procedure are enormous. The child's statement is presented at trial. The ordeal for the child is much less than what is involved when testifying at trial, subject to a hostile attorney's cross-examination. And the accused benefits as well: An expert trained to work with children, in developmental forensic interviewing in a comfortable room, has a much better chance of revealing and exploring any sound reasons to doubt the child's statement than does a cross-examining attorney.

Our proposal won't make difficult problems go away, but we believe it is a win, win, win proposition — for children, defendants and the legal system.

Friedman is the Alene and Allan F. Smith Professor of Law at the University of Michigan Law School. Ceci is the Helen L. Carr Professor of Developmental Psychology at Cornell University.