Aviva A. Orenstein
Professor of Law, Indiana University School of
Law–Bloomington.
Articles by this Author
Children as Witnesses: A Symposium on Child Competence and the Accused’s Right to Confront Child Witnesses
- By Aviva A. Orenstein
- Published 10/5/2007
- Volume 82, Issue 4
Although problems concerning witnesses are
always interesting and important—raising issues of competence, hearsay,
impeachment, and expertise—such issues become even more difficult in criminal
cases, where we must incorporate the accused's Sixth Amendment right to
confrontation. As applied to children, with their still-developing cognitive
abilities, immaturity, susceptibility to influence, and need for protection,
such questions about witnesses are particularly acute.
The scholars in this symposium address these questions from different angles, bringing to bear history, psychology, and a careful analysis of the recent Supreme Court cases on confrontation. They address five important themes: (1) the special status and rights of children as witnesses; (2) ways in which the special case of child witnesses illuminates contradictions, ambiguities, unresolved questions, and the unfortunate tendency towards all-or-nothing thinking in recent Supreme Court Sixth Amendment jurisprudence; (3) practical suggestions for balancing the interests of child witnesses and the rights of the accused in criminal cases; (4) an inquiry into the fate of pre-Crawford cases, most importantly Maryland v. Craig; and (5) a critique of the uses and abuses of historical research by the Supreme Court in its attempt to address issues of confrontation.
The papers in this symposium were originally prepared for the Section on Evidence of the 2007 Annual Meeting of the Association of American Law Schools.
The scholars in this symposium address these questions from different angles, bringing to bear history, psychology, and a careful analysis of the recent Supreme Court cases on confrontation. They address five important themes: (1) the special status and rights of children as witnesses; (2) ways in which the special case of child witnesses illuminates contradictions, ambiguities, unresolved questions, and the unfortunate tendency towards all-or-nothing thinking in recent Supreme Court Sixth Amendment jurisprudence; (3) practical suggestions for balancing the interests of child witnesses and the rights of the accused in criminal cases; (4) an inquiry into the fate of pre-Crawford cases, most importantly Maryland v. Craig; and (5) a critique of the uses and abuses of historical research by the Supreme Court in its attempt to address issues of confrontation.
The papers in this symposium were originally prepared for the Section on Evidence of the 2007 Annual Meeting of the Association of American Law Schools.
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