Early Memory : Children in Court: How Reliable?

“Children are the most dangerous of all witnesses,” a noted German pediatrician once asserted, arguing that youngsters’ testimony should be banned from the courtroom. The year was 1910.

Other professionals chimed in, citing studies to support the belief that children could be manipulated into saying anything an adult wanted. An outraged Belgian psychologist, asked to evaluate child testimony in a celebrated rape-murder case, demanded, “When are we going to give up, in all civilized nations, listening to children in courts of law?”

Now, three-quarters of a century later, the testimony of child victims or witnesses still is often regarded in the same light despite more recent evidence that--under certain circumstances--children can remember accurately and testify competently.

Stereotyped View

The stereotyped view sees them as suggestible beings who think on primitive levels and tend to confuse fantasy with reality--and therefore are unreliable witnesses in the courtroom, particularly where defendants’ lives or freedom hang in the balance.

Questions about the reliability of very young witnesses and the accuracy of their early memories have become more than academic as child after child clambers atop a makeshift witness highchair in the McMartin Pre-School molestation case to describe incidents of sexual abuse that allegedly happened to them from two to seven years ago:

How accurate are children’s memories? After several years have lapsed, how much can a child remember about events that happened to him as a 3- or 4-year-old? Which childhood memories fade and how soon? Is early memory fuzzy enough to be molded by suggestion? Do children remember or only imagine that they do?

Such questions have become central issues in the McMartin preliminary hearing, now nearing its ninth month in Los Angeles Municipal Court. In that case, the founder and six former teachers at the Manhattan Beach nursery school are charged with 208 counts of molestation and conspiracy involving 41 children over a six-year period.

Prosecution Claim

The prosecution claims that many of the children who earlier denied having been molested were embarrassed or had succeeded in blotting the abuse from conscious memory, and are now able to testify because, through therapy, they have retrieved those memories and begun to come to terms with them.

The defense, however, contends that the eight youngsters who have already testified and the 33 still waiting to take the stand have been “brainwashed” into believing that they were molested by their nursery school teachers.

Each of seven defense attorneys has questioned each child exhaustively about the details of those early years, seizing on inconsistencies and blank spots in their memories as signs that their molestation accounts are fabricated and programmed. The children were “persuaded,” the defense holds, by the suggestive techniques of therapists and physicians who are on a witch hunt as a result of allegedly having been themselves molestation victims.

Although recent scientific research on children’s memories is scanty, inconclusive and sometimes contradictory, there is an emerging body of evidence that suggests that children can remember and testify about events that were especially upsetting or significant to them.

In cases like McMartin, notes Dr. Spencer Eth, a Los Angeles child psychiatrist who has studied children who have witnessed homicide, “We’re not talking about the recollection of everyday events, but of unusual, probably traumatic events. It’s not so much ‘Can 8-year-olds tell you what happened at 4?’--that’s not relevant--but whether they can tell you that they were sexually molested.”

Detailed Impressions

Novel and consequential events appear to make indelible, accurate and detailed impressions on children’s minds, a phenomenon researchers label “flashbulb memories.”

“We know that kids can remember that long,” said a leading researcher in the field, developmental psychologist Gail Goodman of the University of Denver, when asked whether an 8- or 9-year-old is capable of remembering events that took place four or five years earlier, “although the longer the wait, the more is likely to be forgotten.

“As time goes by, (the mind becomes) selective to fewer and fewer details. But if you ask people, even adults, about their earliest memory, they do seem to remember things that were traumatic, like getting hurt, watching others be hurt, being abandoned or rushed to the hospital. They remember the personally significant--’the first day my mother left me at the day-care center’ or ‘the day I cracked my head open.’

“In situations in which they were the victim, they can be very accurate about the central event but have a poor, blurred memory of the details.”

Chowchilla Kidnaping

One of the handful of researchers who have looked at children’s recall of traumatic events is Dr. Lenore C. Terr, a child psychiatrist at UC San Francisco, who examined the victims of the Chowchilla school bus kidnaping during the first year after the 1976 incident and again five years later.

There was no question that the children had been buried underground in a truck trailer; there were questions about what the young victims would remember and what the long-term emotional effects would be.

“Everyone I interviewed (they were 5 to 14 years old at the time of the incident) remembered details of the kidnaping. There were no blank spots, nobody was amnesic, nobody had forgotten part of it,” Terr said in a telephone interview.

Although most of the 26 children still lived in the San Joaquin Valley town and probably had heard it discussed over the years, Terr said two children whose families had moved away in an effort to forget remembered the 27-hour ordeal just as accurately.

She said some were embarrassed about having been victims: One boy who was pointed out as having been on the bus, for example, insisted, “Oh, no, no, no, that didn’t happen to me.”

From her work with nearly 100 young trauma victims, including those at Chowchilla, Terr has noted several characteristics of children’s memory:

Children do not appear able to unconsciously repress traumatic events in the way that adolescents and adults do. Terrorizing events are remembered exactly.

An 8-year-old whose windpipe was severed by a German shepherd, for example, was able to describe the incident to Terr in great detail five years later, although her mother “blanked out” and cannot remember how she got the dog off her.

Conscious memory is thought to begin when a child begins to talk and can label his experiences, but events of the first three years leave a different kind of memory trace.

A 5-year-old child who was molested and photographed at 18 months, for example, had no conscious memory of the abuse but had developed a seemingly irrational fear of sharp or finger-like things poking her belly. Terr was puzzled and at first thought, in psychiatric terms, that the child must have “displaced” her genitals to her abdomen. Then Terr was shown the photographic evidence: a picture of the infant with a man’s penis touching her upper abdomen in exactly the same spot the child had indicated vulnerability.

Children may deny that something happened to them, even in the face of proof that it did. One 5-year-old, for example, denied having been molested at his day-care center despite photographic evidence to the contrary. But he gave other indications such as extreme modesty, personality changes and refusal to talk about the alleged events.

Mistakes in memory are common, particularly the misidentification of unfamiliar people and a confused sense of time.

Terr said six of the 26 Chowchilla victims misidentified their kidnapers, and three hallucinated outright. This misperception at a moment of horror, Terr said, is more likely in a one-time event involving strangers than a series of events involving familiar faces.

Although very young children may weave fantasy into reality, this tendency was not evident in the Chowchilla victims, she added.

Memory of traumatic events changes very little over a period of several years. The details remain the same; the language used to recount them is different because the child is older.

“A child can be tricked: There is no way he would remember, say, Christmas of 1976,” Terr said. “If we’re not paying attention to something, we never lay down the memory. But a traumatic memory is different. Unusual or traumatic events burn in a certain remembrance that can’t be extruded.”

Terr said that while it would be naive to believe that every child tells the truth, the accuracy of a child’s “memory” can be verified by looking at other factors: Does he tell his story in spontaneous child language (although interactions with therapists may alter this somewhat)? Is his story consistent over time? Are the details appropriate? Are there telltale symptoms present, such as screaming nightmares, fears, panic attacks, playing-out and reenacting the alleged events?

Origins of Memory

Very little is known about when remembering actually begins or how the mind transforms experience into memory.

Scientists are still debating whether children are incapable of forming memories during the first three years of life or whether even infants have rudimentary memories. Some skeptics say that while some adults claim to recall early childhood experiences, in most cases their “memories” have been aided or reinforced by family photographs or stories told by their parents. Scientists also disagree over whether some memories are lost over time or whether, given the right conditions--such as hypnosis or psychoanalysis--all memories are potentially retrievable.

Researchers hypothesize that learning and memory involve actual changes in the nerve cells in certain areas of the brain--anatomical alterations, the uncovering of hidden receptors on nerve cells when triggered by experiences, or changes caused by the release of hormones.

Tests on Laboratory Animals

Work in laboratory animals by James L. McGaugh, director of the Center for the Neurobiology of Learning and Memory at UC Irvine, suggests that when we are aroused, interested or stressed, we release certain hormones that determine how well events will be remembered. “When hormones are active, the higher the likelihood that the memory will be stored” and converted to a lasting remembrance, McGaugh said.

That may explain why traumatic memories are so indelible.

Psychologists like the late Jean Piaget have long held that dreams and waking events, fantasy and reality, mix freely in the minds and memories of young children. A recent series of experiments conducted by researchers at the State University of New York at Stony Brook and Nazareth College, however, found that young children’s memories are surprisingly accurate--as good or better than those of adults when testifying about activities with which they are familiar, and that they are not any more susceptible to leading questions.

A complex series of experiments involving subjects as young as 6 demonstrated that “even young children may be able to recognize who did what. . . . Children in our studies did not appear to be more likely (than adults) to confuse what they had imagined or done with what they had perceived,” the psychologists wrote in a recent issue of the Journal of Social Issues devoted entirely to the topic of child witnesses. Indeed, both their own studies and their review of earlier research found that adults sometimes showed greater distortions in memory because they made incorrect inferences or assumptions.

Accuracy on Detail

For example, adults who viewed a picture of a subway scene in one experiment often erroneously described a black man holding a razor aggressively, when in fact the figure was white. Children, if they recalled this detail, always got it right.

But an expert on the malleability of memory, psychologist Elizabeth Loftus of the University of Washington in Seattle, is less comfortable about depending on young witnesses:

“I’m nervous about the testimony of young children,” Loftus said in a recent telephone interview. “When a long period passes between the critical event (and testimony), when the memory is weak and faded, they may be particularly susceptible to suggestion,” especially if the person making the suggestion or asking leading questions is an authority figure.

Noting that most of her work involves recall of details, Loftus said she has been able “to get 5-year-olds to say they saw bears that weren’t there” in experiments using cartoons.

In addition, when we remember, we put together bits and pieces that change over time and with each new experience and sometimes mix details or images from one incident with an entirely different episode.

Pure Memory

“There is no such thing as pure memory,” McGaugh explained. “The borderline between what happened and pure fantasy is blurred. . . . We weave tales when we ‘re-member’ and reconstruct memory from cues.”

McMartin defense attorneys and those in similar cases contend that therapists and prosecutors take advantage of that blurred boundary, and that children who take the witness stand are victims of brainwashing rather than molestation.

But a dozen child psychiatrists, psychologists and brainwashing experts contacted by The Times dismissed the idea that large numbers of children could be persuaded that they had been molested as “highly unlikely.”

That kind of sexually connected hysteria is plausible in teen-age girls, but not in pre-adolescent children, some said, noting that many of the accusers in the Salem witchcraft trials were teen-age girls.

“The interviews (in which former McMartin students first admitted to therapists they had been molested) may be lousy and inept, but they’re hardly brainwashing,” said Eth, the child psychologist. “If it were that easy to plant ideas, all the schools would have a new teaching technique.”

Flat Account of Events

Psychologists say that the flat, numb quality of the children’s accounts may be misinterpreted as memorized, rehearsed testimony but may only reflect that the youngsters have had to repeat their story over and over to authorities.

And some inconsistencies that suggest a young witness is lying may stem from children’s literal understanding of language. For example, one psychologist said, a child might say “no,” when asked whether she was ever in the defendant’s house, but “yes” if asked whether she was raped in his apartment.

“The story of a traumatized child is not likely to be consistent,” said one expert on brainwashing and post-traumatic stress, UCLA Neuropsychiatric Institute director L. J. West. “He might admit it at some times and deny it at others . . . especially if the molester is someone he knew and liked. . . . The fact that a child gets mixed up about an event several years earlier is a more credible type of behavior than if he always gets it straight.”

In the end, however, whether a child is believed in court may hinge less on the quality of his testimony than on the existence of corroborating evidence--physical evidence in the case of sexual abuse--and on jurors’ individual biases about children.

One recent study asked several groups of people to judge the reliability of a hypothetical 8-year-old child’s testimony. Fewer than 50% of any group--whether they be potential citizen-jurors, research psychologists, lawyers or college students--felt the child would respond accurately. Most, regardless of whether they were themselves parents, said they believed the child would either respond the way the questioner wished or say “I don’t know.”