Law: Out of the Mouths of Babes

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 5½-year-old witness was allowed to sit on her mother's lap.