Date of this Version
In the spring of 1999, Professor Thomas Lyon of the University of Southern California Law School published a lengthy law review article in which he argued that the introduction into evidence of research on the suggestibility of child witnesses was not of assistance to triers of fact.1 Lyon’s article has found its way into judicial training packets and has been posted to electronic bulletin boards sponsored by organizations with interest in custody evaluations, psychology and law, and related topics. Because judges are soon likely to encounter arguments based upon Lyon’s article, I wish to alert judges to what I believe to be significant fallacies in his critique of children’s suggestibility research. Lyon is critical of what he refers to as the “new wave in children’s suggestibility research.” As the term is used by Lyon, the new wave refers to a body of research conducted by Stephen Ceci, Maggie Bruck, and others.2 It is my contention that the new-wave research has added much to our earlier understanding of memory processes. The professional recognition that the newwave researchers have received suggests that the contribution made by their work to our understanding of children’s suggestibility has been widely appreciated. Although Stephen Ceci, the developmental psychology professor who has spearheaded research in this area, and law professor Richard Friedman have already responded to Lyon’s critique, 3 my perspective on this matter is somewhat different and, I believe, much like a judge’s might be. I am not a researcher— rather, I am a “consumer” of research data. For 15 years, I have been a court-appointed evaluator of comparative custodial suitability; in that capacity, I have encountered a significant number of abuse allegations. Knowledge of the cognitive dynamics demonstrated in the new-wave research has been helpful to me on many occasions. It is for this reason that I believe it to be information of potential use to triers of fact. Lyon’s primary criticisms are: (1) that the new-wave researchers have overstated the frequency with which suggestive questioning occurs and, in their proposals for methodological changes, have failed to address the risk that abusers will be acquitted; (2) that new-wave research conditions have failed to replicate real-world phenomena closely enough, thereby making it unreasonable to presume that we have gained meaningful knowledge of the real-world phenomena through the research on their artificial analogues; (3) that Maggie Bruck in particular has erred in statements made during testimony and that her decision to offer didactic as opposed to case-specific testimony is flawed; and, finally, (4) that jurors are already aware that children are suggestible and that testimony concerning the newwave research causes jurors to overestimate the probability that testimony from a particular child witness has been distorted by suggestive questioning.