¹ My description of the case is based on People v. Blandoli, Criminal Trial Transcript Collection case 1494 (1912), Trial Transcripts of the County of New York, 1883–1927, John Jay College of Criminal Justice Lloyd Sealy Library (hereafter TTC). For unpublished cases, I have altered the first names of the parties and witnesses.

² N.Y. Penal Code § 2010 (1909).

³ See Freedman, Estelle B., Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation (Cambridge, Mass.: Harvard University Press, 2013), ch. 7CrossRefGoogle Scholar; Robertson, Stephen, Crimes against Children: Sexual Violence and Legal Culture in New York City, 1880–1960 (Chapel Hill: University of North Carolina Press, 2005), ch. 1Google Scholar.

⁴ Compare Revised Statutes of the State of New York (1829), 2: 663 § 22, with 1887 N.Y. Laws 900.

⁵ See notes 19–22 below.

⁶ New York provides a valuable case study for several reasons: first, the state reflected broader trends in the reform of evidence law during the Progressive Era, but it also enacted changes (like allowing unsworn testimony) ahead of the curve; and second, NYSPCC records and New York trial transcripts offer a rich archive for studying the causes and consequences of those reforms. In addition to legislation and court decisions regarding children's competency, my analysis relies on 41 trial transcripts featuring substantial testimony by children from the 1890s to the 1920s, culled from John Jay College's collection of New York City criminal trial transcripts and the New York State Library's appellate court records. Though not the focus of this article, my research on jurisdictions beyond New York—including my review of trial transcripts held at the California State Archives—informs the generalizations I draw from New York's records.

⁷ Brewer, Holly, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (Chapel Hill: University of North Carolina Press, 2005), 174Google Scholar. Some historians have turned to records of children's testimony to illuminate children's experiences in the legal system since the late nineteenth century. See Tanenhaus, David S. and Bush, William, “Toward a History of Children as Witnesses,” Indiana Law Journal 82 (2007): 1059–75Google Scholar. However, scholars have not identified or explained the particular legal changes that enabled more children to testify and that generated more records of children's voices.

⁸ Wigmore, John Henry, A Treatise on the System of Evidence in Trials at Common Law (Boston: Little, Brown, 1904), 1: 591Google Scholar.

⁹ Wigmore, A Treatise (1904), 3: 1698. For leading accounts of the nineteenth-century demise of witness disqualification rules, which attribute that trend to the elevation of cross-examination and juries’ credibility determinations as the means of legitimating trial outcomes, see Fisher, George, “The Jury's Rise as Lie Detector,” Yale Law Journal 107 (1997): 575–713CrossRefGoogle Scholar; Langbein, John H., “The Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (1996): 1194–202CrossRefGoogle Scholar; and Witt, John, “Making the Fifth: The Constitutionalization of American Self-Incrimination Doctrine, 1791–1903,” Texas Law Review 77 (1999): 860–61.Google Scholar

¹⁰ Modern social science research has generally shown that cross-examination is a poor method for obtaining the truth from children. See Friedman, Richard D. and Ceci, Stephen J., “The Child Quasi Witness,” University of Chicago Law Review 82 (2015): 110Google Scholar; McGough, Lucy S., Child Witnesses: Fragile Voices in the American Legal System (New Haven: Yale University Press, 1994), 108, 122Google Scholar.

¹¹ As one nineteenth-century evidence law authority claimed, “[i]t is hardly possible to cross-examine a child, for the test is too rough for an immature mind,” and inspires undue sympathy among jurors for the “confused and frightened” child. Stephen, J. F., A General View of the Criminal Law of England (London: MacMillan, 1863), 287Google Scholar. For similar concerns, see Miller, Amos C., “Legal Tactics Series: Examination of Witnesses,” Illinois Law Review 2 (1907–1908): 260Google Scholar, quoted in Wigmore, John Henry, The Principles of Judicial Proof (Boston: Little, Brown, 1913)Google Scholar; and “Sympathy the Salvation of the Youthful Offender,” New York Times, February 26, 1905.

¹² For an overview of legal reforms associated with the nineteenth-century “child-saving movement,” see Michael Grossberg, “Changing Conceptions of Child Welfare in the United States, 1820–1935,” in A Century of Juvenile Justice, eds. Margaret K. Rosenheim et al. (Chicago: University of Chicago Press, 2002).

¹³ Historians have documented eighteenth- and early-nineteenth-century juries’ skepticism of young children's testimony. See Nancy Hathaway Steenburg, Children and the Criminal Law in Connecticut, 1635–1855: Changing Perceptions of Childhood (New York: Routledge, 2005). Jurors’ negative views of children's credibility remain a rich topic of empirical research. See Stephen J. Ceci, ed., Perspectives on Children's Testimony (New York: Springer, 1989).

¹⁴ Though evidence rules are not the focus of his study, Stephen Robertson notes the relationship between certain evidence law changes and efforts to prosecute sexual offenses against children in the Progressive Era. See Robertson, Crimes against Children, 49. Estelle Freedman does not explore that relationship, but observes that “long-standing suspicions about girls who falsely claimed rape” began to clash with growing concerns about child welfare and statutory rape in the late nineteenth century. Freedman, Redefining Rape, 132.

¹⁵ By examining both the legal reforms and state-building initiatives that adults launched on children's behalf, and the ways that children experienced those legal changes, this article bridges different approaches to writing children's history. A recent scholarly exchange in The American Historical Review illuminates the challenges and possibilities of combining the “history of children,” which focuses on children's own experiences, and “history through children,” which links changing ideas about childhood to other social and political processes. Bengt Sandin, “History of Children and Childhood—Being and Becoming, Dependent and Independent,” The American Historical Review 125, no. 4 (2020): 1314.

¹⁶ Child witnesses’ greater visibility since the late nineteenth century has generated debate about how the state ought to protect children from courtroom traumatization, a burden that has long fallen disproportionately on poor children, who more frequently appear as witnesses in criminal and family courts. In the late twentieth century, many states enacted reforms meant to reduce the risk of children's “secondary victimization” in the judicial process, including, for example, statutes permitting testimony through closed-circuit television. See McGough, Child Witnesses, 3–4; Robert H. Pantell, “The Child Witness in the Courtroom,” Pediatrics 139, no. 3 (2017): 4.

¹⁷ On gender dynamics in witness detention, see Part IV below.

¹⁸ See Pantell, “The Child Witness,” 1. No state automatically excludes children from testifying based on age; many states still require some form of preliminary examination to determine if children can testify, but about half follow the Federal Rules of Evidence, dispensing with any preliminary showing of competence before children go before the jury. Many states have enacted permissive rules, usually specific to sexual abuse cases, for the admission of children's hearsay statements and unsworn testimony. See McGough, Child Witnesses, 97–98, 145–46.

¹⁹ See Brewer, By Birth or Consent, 159. As Holly Brewer has shown, age-based restrictions on testimony originated in seventeenth-century England and migrated to American courts and evidence guides, which document a “trend … toward excluding the evidence of those under ten or even under fourteen” in the eighteenth century. Id., 168. Courts elevated the importance of oath understanding, and moved away from the earlier practice of allowing unsworn testimony by “infant[s] of … tender years” who were victims of rape or other “secret” offenses. Matthew Hale, The History of the Pleas of the Crown (Philadelphia: Robert H. Small, [1736] 1847), 1: 634; see also Richard Burn, The Justice of the Peace, and Parish Officer (London: H. Woodfall and W. Strahan, 1764), 1: 342.

²⁰ Simon Greenleaf, A Treatise on the Law of Evidence (Boston: Little, Brown, 1842), 1: 410. A 1779 English case was the oft-cited authority for disallowing children too young to be sworn. See R. v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202, 203 (K.B. 1779).

²¹ Greenleaf, A Treatise, 1: 411; see also Thomas Peake, A Compendium of the Law of Evidence (Walpole, N.H.: Thomas & Thomas, 1804), 86. The requirement that witnesses evince a religious understanding of the oath was a target of Jeremy Bentham's influential critique of eighteenth-century evidence law. See Jeremy Bentham, Rationale of Judicial Evidence (London: Hunt & Clarke, 1827), in The Works of Jeremy Bentham, ed. John Browning (Edinburgh: William Tait, 1843), 7: 429. A wave of nineteenth-century legislative and constitutional reforms, in states across the U.S., repealed the common-law disqualification of witnesses lacking religious belief, but did not resolve the problem of children's disqualification. See Wigmore, A Treatise (1923), 3: 886–89. As Part III discusses, some judges still required children to convey knowledge of divine punishment for false swearing, even as courts generally moved toward a more flexible, secular test.

²² Revised Statutes of the State of New York (1829), 2: 408 § 89. New York's 1880 Code of Civil Procedure retained the same rule as before, but removed the reference to “religious” knowledge. See N.Y. Code of Civil Procedure § 850 (1881). The same rule applied in both civil and criminal cases. See N.Y. Code of Criminal Procedure § 392 (1881).

²³ Common-law restrictions did not bar children from testifying in all cases, and it is difficult to quantify, with confidence, how often young children actually appeared in court in the eighteenth and early nineteenth centuries. The regular participation of child witnesses did not become possible, though, until the adoption of more flexible tests of children's competency to testify, among other reforms, in the late nineteenth and twentieth centuries.

²⁴ See Grossberg, “Changing Conceptions of Child Welfare,” 24–27. The child-saving movement aimed its interventions primarily at white children in urban, working-class, usually immigrant families, though another movement, led by Black clubwomen, strove to extend child welfare resources to Black youth. See Geoffrey K. Ward, The Black Child-Savers: Racial Democracy and Juvenile Justice (Chicago: University of Chicago Press, 2012); Dorothy Roberts, “Black Club Women and Child Welfare: Lessons for Modern Reform,” Florida State University Law Review 32 (2005): 957–72.

²⁵ See Granville Stanley Hall, Adolescence: Its Psychology and Its Relations to Physiology, Anthropology, Sociology, Sex, Crime, Religion, and Education, 2 vols. (New York: D. Appleton and Company, 1904). A century after Hall, developmental psychologists have charted the modern evolution and “lengthening of adolescence,” a shift with major implications for law and social policy. Laurence Steinberg, Age of Opportunity: Lessons from the New Science of Adolescence (Boston: Houghton Mifflin Harcourt, 2014), 9.

²⁶ See 1857 N.Y. Laws 744; 1869 N.Y. Laws 1597.

²⁷ In addition to the NYSPCC, women's rights advocates helped publicize the plight of child witnesses, promoting the reform of evidence law and procedure as a child-saving imperative. For example, the American Woman Suffrage Association's weekly journal ran articles protesting young girls’ exclusion under competency rules, and the “terrible ordeal” that girls faced when cross-examined in sexual assault trials. “No Protection for Little Girls,” Woman's Journal, July 26, 1890.

²⁸ 1875 N.Y. Laws 114.

²⁹ NYSPCC, Twenty-Fourth Annual Report (1898), 6.

³⁰ On the SPCC model, see Susan J. Pearson, The Rights of the Defenseless: Protecting Animals and Children in Gilded Age America (Chicago: University of Chicago Press, 2011), ch. 4.

³¹ See generally Jeremy P. Felt, Hostages of Fortune: Child Labor Reform in New York State (Syracuse: Syracuse University Press, 1965); Merril Sobie, The Creation of Juvenile Justice: A History of New York's Children's Laws (Albany: New York Bar Foundation, 1987), chs. 2 & 3.

³² See 1888 N.Y. Laws 203.

³³ See Annual Convention of the New York State Societies for the Prevention of Cruelty (1890), The NYSPCC Archive, New York Society for the Prevention of Cruelty to Children (hereafter NYSPCC Archive); Second Annual Convention (1891), 34, NYSPCC Archive.

³⁴ NYSPCC, Fourteenth Annual Report (1888), 40.

³⁵ Henry Bathurst, The Theory of Evidence (London: S. Richardson and C. Lintot, 1761), 110; see also Francis Buller, An Introduction to the Law Relative to Trials at Nisi Prius (London: W. Strahan and M. Woodfall, 1772), 289.

³⁶ Robertson, Crimes Against Children, 2.

³⁷ Freedman, Redefining Rape, 127.

³⁸ See 1887 N.Y. Laws 900; 1892 N.Y. Laws 681. Current New York law contains a more complex age-based scheme, meant to shield teenaged consensual sex partners from criminal charges.

³⁹ See Second Annual Convention (1891), 11, NYSPCC Archive; Third Annual Convention (1892), 42, NYSPCC Archive; Sixth Annual Convention (1895), 27, NYSPCC Archive.

⁴⁰ See Robertson, Crimes Against Children, 32. On parallel trends in the U.K., see Laura Lammasniemi, “‘Precocious Girls’: Age of Consent, Class and Family in Late Nineteenth-Century England,” Law and History Review 38, no. 1 (2020): 254.

⁴¹ Scholarship on late-nineteenth-century statutory rape prosecutions illuminates how class, race, and gender biases affected perceptions of children's innocence: for example, white judges and jurors’ tendency to assign maturity and promiscuity to Black girls—and, to some degree, girls of Southern and Eastern European ancestry, who comprised a large share of rape complainants in Progressive-Era New York. See Freedman, Redefining Rape, 87; Robertson, Crimes Against Children, 122–23. This article reveals the further dilemma that young witnesses faced when their competency to testify depended on a display of maturity, but their substantive legal claim depended on the appearance of immaturity, and it shows how evidence law began to deal with that tension.

⁴² Rosemary C. Hunter, “Gender in Evidence: Masculine Norms vs. Feminist Reforms,” Harvard Women's Law Journal 19 (1996): 165. On the nineteenth-century repeal of rules barring testimony by Black witnesses and other people of color, see Fisher, “The Jury's Rise as Lie Detector,” 671–97. On the persistence of racially biased determinations of witness competency and credibility, see, for example, Jasmine B. Gonzales Rose, “Toward a Critical Race Theory of Evidence,” Minnesota Law Review 101 (2017): 2243–311. On the history of gendered evidentiary rules, and the enduring linkage of sexual virtue and credibility, see Hunter, “Gender in Evidence”; and Julia Simon-Kerr, “Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment,” Yale Law Journal 117 (2008): 1854–98. For analysis of how witnesses’ disability affects perceptions of both their competency to testify and capacity to consent to sex, see, for example, Jasmine E. Harris, “Sexual Consent and Disability,” New York University Law Review 93 (2018): 480–557.

⁴³ Third Annual Convention (1892), 56, NYSPCC Archive.

⁴⁴ 1892 N.Y. Laws 590; see also Second Annual Convention (1891), 34, 60, NYSPCC Archive.

⁴⁵ People v. Klein, 194 N.E. 402, 403 (N.Y. 1935); see also People v. Johnson, 77 N.E. 1164, 1167 (N.Y. 1906).

⁴⁶ See People v. Sexton, 80 N.E. 396, 402 (N.Y. 1907).

⁴⁷ See Criminal Law (Amendment) Act 1885, 48 & 49 Vict. c. 69, § 4; Prevention of Cruelty to, and Protection of, Children Act 1889, 52 & 53 Vict. c. 44, § 8; Prevention of Cruelty to Children (Amendment) Act 1894, 57 & 58 Vict. c. 41, §§ 14, 15.

⁴⁸ Wigmore, A Treatise (1923), 1: 874; John Henry Wigmore, A Supplement to A Treatise on the System of Evidence, 2nd ed. (Boston: Little, Brown, 1915), xxxi.

⁴⁹ For criticism of the rule barring children's unsworn testimony in other states, see cases cited below in notes 92, 96.

⁵⁰ N.Y. Crim. Proc. Law § 60.20.

⁵¹ Third Annual Convention (1892), 56–57, NYSPCC Archive.

⁵² See, e.g., “The Mount Hope Tragedy: Trial of Thomas Halloran Continued—Interesting Evidence—A Child's Testimony Against Her Father,” New York Times, May 19, 1870; “A Child's Sad Testimony: Florence Hackett Tells in Court How Her Father Shot Her Mother,” New York Times, November 2, 1881.

⁵³ NYSPCC, Twenty-Third Annual Report (1897), 43; see also NYSPCC, Thirty-Eighth Annual Report (1913), 36, 39; NYSPCC, Forty-Third Annual Report (1918), 26.

⁵⁴ Third Annual Convention (1892), 56–57, NYSPCC Archive.

⁵⁵ Case law offers examples where judges found children capable of giving unsworn, but not sworn, testimony, as well as instances in which trial judges concluded, after examining a young witness, that the child was too immature to testify either sworn or unsworn under the statute. See, e.g., People v. Quong Kun, 34 N.Y.S. 260, 261 (N.Y. Gen. Sess. 1895). Appellate courts then and now have said little about the precise meaning of the statutory language, generally deferring to trial judges’ assessments. See, e.g., People v. Nisoff, 330 N.E.2d 638, 690–91 (N.Y. 1975).

⁵⁶ See, e.g., “His Child Against Him: Herman Reich's Trial for Wife Murder,” New York Times, June 13, 1896; “Children Describe Murder of Mother: Little Son and Daughter of Abraham Roth Give Testimony Against Him,” New York Times, December 7, 1910; People v. Pustolka, 43 N.E. 548, 548 (N.Y. 1896); People v. Newman, TTC case 2100 (1915), 5.

⁵⁷ People v. Blandoli, TTC case 1494 (1912), 66.

⁵⁸ People v. Badrian, TTC case 1412 (1911), 55. Another appellate judge described why he considered the oath of little use for children: if a young witness's story was false, “it was more childlike to adhere to her falsehood from fear of parental punishment than to confess it in order to avert Divine wrath.” People v. Donohue, 100 N.Y.S. 202, 204 (N.Y. App. Div. 1906).

⁵⁹ People v. Johnson, 77 N.E. 1164 (N.Y. 1906).

⁶⁰ Id. at 1167, 1168.

⁶¹ Id. at 1168.

⁶² Wigmore, A Treatise (1923), 887.

⁶³ The majority view was that the change in criminal procedure did not affect civil cases, where “[u]nsworn testimony of a child [was] inadmissible.” Stoppick v. Goldstein, 160 N.Y.S. 947, 948 (N.Y. App. Div. 1916); see also Gehl v. Bachmann-Bechter Brewing Co., 141 N.Y.S. 133, 136 (N.Y. App. Div. 1913); Neustadt v. New York City Ry. Co., 104 N.Y.S. 735, 735 (N.Y. App. Term 1907).

⁶⁴ See David S. Tanenhaus, Juvenile Justice in the Making (Oxford: Oxford University Press, 2004), ch. 2; Sobie, The Creation of Juvenile Justice, ch. 6. As historians of juvenile justice have observed, advocates for juvenile courts believed that encouraging accused juvenile delinquents to speak, whether in the courtroom or in judges’ chambers, was essential both for gathering information and for the “rehabilitative process.” Tanenhaus and Bush, “Toward a History of Children as Witnesses,” 1068; see also “Children's Court Opens: Kindly Methods Used in Examining Juvenile Delinquents,” New York Times, September 3, 1902. Juvenile courts established a new forum for children to speak in delinquency and neglect cases, a crucial development in children's history; however, this article does not focus on the juvenile court system, but rather the evidence-law reforms that enabled more children to testify, formally, in the adult court system—that is, the criminal and civil trial courts that might previously have excluded their evidence.

⁶⁵ 1924 N.Y. Laws 512; see also “A Morning at the Children's Court,” New York Times, May 20, 1906. The same rule appears in New York's modern Family Court Act. See N.Y. Family Court Act § 152 (b).

⁶⁶ 1892 N.Y. Laws 590.

⁶⁷ For example, like many states, New York has long required corroboration of accomplice testimony. Historically, that requirement affected prosecutions under incest and sodomy statutes, which commonly defined the defendant and complaining witness as co-accomplices; however, minors were usually not treated as accomplices. Sometimes, though, in prosecutions of men for sexual assault of boys under sodomy statutes, courts noted the “dilemma” that the young complaining witness was either “so deficient in intelligence as not to understand the nature of the crime or the bearing of his testimony, in which case he was not such a competent witness, … or else … he was mentally competent, in which event, … he was capable of consenting, and thus became an accomplice.” People v. Deschessere, 74 N.Y.S. 761, 763 (N.Y. App. Div. 1902).

⁶⁸ See 1886 N.Y. Laws 953.

⁶⁹ See Wigmore, A Treatise (1923), 1: 378. For the current rule, see N.Y. Penal Law § 130.16.

⁷⁰ See N.Y. Crim. Proc. Law § 60.20 (3).

⁷¹ See, e.g., People v. Plath, 3 N.E. 790, 794 (N.Y. 1885); People v. Page, 56 N.E. 750, 752 (N.Y. 1900); People v. Gralleranzo, 66 N.Y.S. 514, 516 (N.Y. App. Div. 1900); People v. Shaw, 142 N.Y.S. 782, 784–85 (N.Y. App. Div. 1913); see also Robertson, Crimes Against Children, 126–27.

⁷² See, e.g., People v. Badrian, TTC case 1412 (1911), 56.

⁷³ On doctors’ role in rape prosecutions in the nineteenth and early twentieth centuries, see Stephen Robertson, “Signs, Marks, and Private Parts: Doctors, Legal Discourses, and Evidence of Rape in the United States, 1823–1930,” Journal of the History of Sexuality 8, no. 3 (1998): 345–88; and Lammasniemi, “‘Precocious Girls,’” 17–18.

⁷⁴ NYSPCC, Twenty-Fourth Annual Report (1898), 9.

⁷⁵ 1905 N.Y. Laws 606; see also Sixteenth Annual Convention (1905), 23, NYSPCC Archive. However, according to an examining physician for the NYSPCC, many a doctor was “loath, especially if the injury is slight, to report it to the proper authorities, fearing if he does so, that he may be brought to court as a witness.” William Travis Gibb, “Indecent Assaults upon Children,” in A System of Legal Medicine, 2nd ed., eds. Alan McLane Hamilton and Lawrence Godkin (New York: E. B. Treat & Co., 1900), 1: 656.

⁷⁶ People v. Blandoli, TTC case 1494 (1912), 32; see also People v. Badrian, TTC case 1412 (1911), 30.

⁷⁷ Instructions for Officers and Staff of the New York Society for the Prevention of Cruelty to Children (1931), 9, NYSPCC Archive.

⁷⁸ People v. Blandoli, TTC case 1494 (1912), 66.

⁷⁹ See id., 65–66.

⁸⁰ N.Y. Code of Civil Procedure § 850 (1881); see also N.Y. Code of Criminal Procedure § 392 (1881).

⁸¹ Ryan v. Hall Co., 193 N.Y.S. 952, 952 (N.Y. App. Div. 1922).

⁸² See Manual of the New York Society for the Prevention of Cruelty to Children (1888), 10, NYSPCC Archive; Manual of the New York Society for the Prevention of Cruelty to Children (1896), 10, NYSPCC Archive.

⁸³ John D. Lindsay to Hon. Robert J. Wilkin, October 20, 1903, in Children's Court Clipping Book, 1906–39, NYSPCC Archive. The longstanding rule was that courts had discretion to pause proceedings in order for a child to receive instruction on the oath, though it did not ensure the child would pass the test. See Joseph Chitty, Practical Treatise on the Criminal Law (London: A. J. Valpy, 1816), 1: 405; Greenleaf, A Treatise, 1: 411.

⁸⁴ Wheeler v. United States, 159 U.S. 523, 524–25 (1895). In Wheeler, the Supreme Court concluded that the test was met where the trial judge, through “not very extended examination,” heard from the boy that “he knew the difference between the truth and a lie; that if he told a lie, the bad man would get him, and that he was going to tell the truth.” Id. at 524.

⁸⁵ People v. Linzey, 29 N.Y.S. 560, 560–61 (N.Y. Sup. Ct. 1894).

⁸⁶ People v. Blandoli, TTC case 1494 (1912), 31. But compare People v. Dobias, TTC case 1355 (1911), 6.

⁸⁷ Jones v. Brooklyn, B. & W.E.R. Co., 3 N.Y.S. 253, 256 (N.Y. City Ct. 1888), aff'd, 13 N.E. 1098 (N.Y. 1890).

⁸⁸ People v. Washor, 89 N.E. 441, 442 (N.Y. 1909). Current New York law states much the same standard. See N.Y. Crim. Proc. Law § 60.20; People v. Morales, 606 N.E.2d 953, 955 (N.Y. 1992). Courts in other states in the early twentieth century also took note of children's awareness of the secular, legal consequences of false testimony, including punishment for perjury, though some courts also cautioned that the competency test should not require children to explain legal terminology “which even adults would often find difficult of ready definition.” Houston & T.C. Ry. Co. v. Roberts, 201 S.W. 674, 676 (Tex. Civ. App. 1918).

⁸⁹ Jackson ex dem. Tuttle v. Gridley, 18 Johns. 98, 105 (N.Y. Sup. Ct. 1820).

⁹⁰ See New York Constitution of 1846, art. 1, § 3.

⁹¹ Wigmore, A Treatise (1923), 3: 888–89 (italics omitted).

⁹² Criticisms appeared in Wigmore's treatises and in the decisions of multiple state high courts around the turn of the century. See, e.g., Wigmore, A Treatise (1904), 3: 2358; State v. Reddington, 64 N.W. 170, 172 (S.D. 1895); Commonwealth v. Furman, 60 A. 1089, 1090 (Pa. 1905); Crosby v. State, 124 S.W. 781, 783 (Ark. 1910) (McCulloch, C.J., dissenting).

⁹³ Wigmore, A Treatise (1904), 3: 2359; id., 1: 638–39. Wigmore's list of relevant cognitive capabilities echoed Bentham's view that witnesses’ competency should depend on their “faculties” of “perception, judgment, memory, and expression,” rather than the eighteenth-century test of oath understanding. Bentham, Rationale of Judicial Evidence, 7: 429.

⁹⁴ Legal scholars continue to criticize the competency test, as applied today, as “both overinclusive and underinclusive.” McGough, Child Witnesses, 102.

⁹⁵ People v. Johnson, 77 N.E. 1164, 1168 (N.Y. 1906).

⁹⁶ See, e.g., Clark v. Finnegan, 103 N.W. 970, 970 (Iowa 1905); Commonwealth v. Furman, 60 A. 1089, 1089 (Pa. 1905); De Groot v. Van Akkeren, 273 N.W. 725, 729 (Wis. 1937). Some states have enacted a similar rule by statute—Michigan, for example, as early as 1887. See 1887 Mich. Pub. Acts 90.

⁹⁷ Wigmore, A Treatise (1904), 1: 641.

⁹⁸ Id., 638–39; R. v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202, 203 (K.B. 1779).

⁹⁹ People v. Blandoli, TTC case 1494 (1912), 31. Similar exchanges appear in trial transcripts many decades later. Compare, for example, Harville v. State, 386 So. 2d 776, 779 (Ala. Crim. App. 1980).

¹⁰⁰ People v. Blandoli, TTC case 1494 (1912), 30, 65. Compare, for example, the competency inquiries in Baldit v. State, 522 S.W.3d 753, 757 (Tex. App. 2017); and State v. Hicks, 352 S.E.2d 424, 426 (N.C. 1987).

¹⁰¹ People v. Blandoli, TTC case 1494 (1912), 30.

¹⁰² See, e.g., People v. Donohue, 100 N.Y.S. 202 (N.Y. App. Div. 1906); People v. Ledwon, 46 N.E. 1046 (N.Y. 1897). In Donohue, where a police officer was charged with molesting a 10-year-old girl, the trial judge allowed the complainant to testify under oath after eliciting that she knew she “would be punished” for lying. Trial transcript, at 10, Case on Appeal in People v. Donohue (1906), New York Supreme Court Appellate Division Records, New York State Library. On appeal, the defendant argued that the trial judge erred in allowing the complainant and her sister to testify without further probing their oath understanding—including whether the young complainant “knew the character of the punishment [for lying], human or divine”—and warned that children “are often the most accomplished of liars, … with an air of angelic ingenuousness.” Defendant's brief, at 5, 31, id. The Appellate Division found “no error” in the trial court's decisions allowing the children's testimony, but it reversed the conviction for insufficient evidence, citing the complainant's multiple contradictory statements and non-answers. Donohue, 100 N.Y.S. at 203.

¹⁰³ People v. Johnson, 77 N.E. 1164, 1167 (N.Y. 1906).

¹⁰⁴ Wigmore, A Treatise (1923), 3: 871.

¹⁰⁵ Id., quoting Edgar Jay Sherman, Some Recollections of a Long Life (Boston: privately printed, 1908). Of course, long, unfocused competency inquiries carry the risk of exhausting children without necessarily shedding more light on their reliability as witnesses. See McGough, Child Witnesses, 104.

¹⁰⁶ In addition to newspaper coverage of trials, New York criminal court transcripts disclose multiple examples where children began to cry and left the stand when asked about the consequences of lying, during cross-examination or a competency examination. See, e.g., People v. Marco, TTC case 2157 (1916); People v. Sherman, TTC case 2649 (1919).

¹⁰⁷ Ultimately, that argument formed the basis for constitutional challenges to children's exclusion. See Santillian v. State, 182 S.W.2d 812, 815 (Tex. Crim. App. 1944); compare Ambles v. State, 383 S.E.2d 555, 557–58 (Ga. 1989).

¹⁰⁸ In the late nineteenth and early twentieth centuries, state courts presented different views about whether young children should be permitted to testify in divorce cases, but often the grounds for the divorce were relevant. Similar to the rationale for allowing children's testimony in criminal prosecutions of domestic violence, in wives’ divorce suits alleging cruelty, it was deemed a “necessity” for children to testify, since “ill-usage and cruel treatment of the wife do not generally occur in public places, or in the open face of day.” Freeny v. Freeny, 31 A. 304, 304 (Md. 1895) (internal quotations omitted). In husbands’ suits alleging adultery, on the other hand, allowing children to testify about their mother's lack of chastity was seen as “a great wrong to them, not only as it touches them in their natural affections, but also as it tends to destroy their purity of mind and conduct.” Crowner v. Crowner, 6 N.W. 198, 198 (Mich. 1880).

¹⁰⁹ “Rules Out Child Witness: Judge Condemns Practice of Putting Children on Divorce Stand,” New York Evening Telegram, March 31, 1905, in Children's Court Clipping Book, 1906–39, NYSPCC Archive; compare “Child Testifies for Mother: Eleven-Year-Old Girl Accepted as a Divorce Case Witness,” New York Times, March 7, 1913; Powers v. Powers, 66 N.Y.S. 9 (N.Y. App. Div. 1900).

¹¹⁰ See Revised Statutes of the State of New York (1829), 2: 709. On the history of adult material witness detention in New York, and its relation to policing, see Wesley MacNeil Oliver, “The Rise and Fall of Material Witness Detention in Nineteenth Century New York,” NYU Journal of Law and Liberty 1, no. 2 (2005): 726–81.

¹¹¹ See 1857 N.Y. Laws 210; 1875 N.Y. Laws 531.

¹¹² Charles Dickens, American Notes (1842), ch. 6.

¹¹³ “The Home for Witnesses,” New York Times, October 4, 1859.

¹¹⁴ “Grand Jury Presentments,” New York Times, January, 1874.

¹¹⁵ See 1883 N.Y. Laws 589.

¹¹⁶ 1904 N.Y. Laws 1062.

¹¹⁷ See 1877 N.Y. Laws 486.

¹¹⁸ 1881 N.Y. Laws 670.

¹¹⁹ See 1888 N.Y. Laws 385–386.

¹²⁰ See 1905 N.Y. Laws 1668.

¹²¹ See The Cyclopaedia of American Biography, ed. James E. Homans (New York: Press Association Compilers, 1918), 8: 364.

¹²² NYSPCC, Twenty-Fourth Annual Report (1898), 10.

¹²³ See Manual of the New York Society for the Prevention of Cruelty to Children (1888), 133–135, NYSPCC archive.

¹²⁴ NYSPCC, Twenty-Fourth Annual Report (1898), 9–10. Records of New York's asylums for delinquent and neglected children show they also held some children committed as material witnesses in the late nineteenth century. See, e.g., New York Juvenile Asylum, Forty-Ninth Annual Report (1900), 93.

¹²⁵ “New York's New Children's Court,” New York Times, August 24, 1902.

¹²⁶ NYSPCC, Twentieth Annual Report (1894), 46; see also NYSPCC, Sixth Annual Report (1881), 85; NYSPCC, Eighteenth Annual Report (1892), 31; NYSPCC, Thirty-Ninth Annual Report (1914), 47; and NYSPCC, Forty-First Annual Report (1916), 55.

¹²⁷ Ninth Annual Convention (1898), 105, NYSPCC Archive.

¹²⁸ NYSPCC, Eighteenth Annual Report (1892), 31.

¹²⁹ Ninth Annual Convention (1898), 128, NYSPCC Archive; see also NYSPCC, Twenty-Fourth Annual Report (1898), 9.

¹³⁰ E. Fellows Jenkins to Hon. John B. Mayo, March 25, 1904, in Children's Court Clipping Book, 1906–39, NYSPCC Archive.

¹³¹ “Child Witness Held in Strict Seclusion: Children's Society Prevents Diamond Broker Seeing His Son,” New York Times, October 2, 1902.

¹³² Id.

¹³³ For coverage of the case, see “On Denying Bail to Children,” The Sun, August 13, 1903; “Child Witnesses Entitled to Bail,” New York Herald, August 13, 1903; “Child Witness Detention,” New York Times, August 14, 1903; “Reply from Children's Society,” New York Daily Tribune, August 15, 1903, in Children's Court Clipping Book, 1906–39, NYSPCC Archive.

¹³⁴ NYSPCC, Twenty-Sixth Annual Report (1900), 153; see also “Child Witnesses Entitled to Bail,” New York Herald, August 13, 1903.

¹³⁵ “Child Witness Detention,” New York Times, August 14, 1903.

¹³⁶ The Sun, August 13, 1903; see also New York Herald, August 13, 1903; Howard Townsend to John D. Lindsay, August 12, 1903, in Children's Court Clipping Book, 1906–39, NYSPCC Archive.

¹³⁷ See Ninth Annual Convention (1898), 105, NYSPCC Archive.

¹³⁸ In the matter of the custody of Annie Markewitch (N.Y. Sup. Ct. 1905), in Children's Court Clipping Book, 1906–39, NYSPCC Archive.

¹³⁹ People ex rel. Bolt v. Society for the Prevention of Cruelty to Children, 95 N.Y.S. 250, 250 (N.Y. Sup. Ct. 1905).

¹⁴⁰ Id.

¹⁴¹ On the detention of statutory rape complainants in New York, see note 149 below. In other jurisdictions, too, courts threatened reluctant child witnesses with contempt charges and confinement in jail or a juvenile reformatory. See, e.g., Trial transcript, at 15, Case on Appeal in People v. Hamilton (1873), Supreme Court of California Records, California State Archives; Inmate record (1913), in Youth Authority Records, F3738, Folder 106 (Whittier Inmate History Register, 1912–17), California State Archives.

¹⁴² Bolt, 95 N.Y.S. at 251. The court's decision echoed the logic of a series of nineteenth-century cases upholding the confinement of children in juvenile institutions, without trial, under the state's parens patriae authority. On those cases, see Rendleman, Douglas R., “Parens Patriae: From Chancery to the Juvenile Court,” South Carolina Law Review 23 (1971): 218–19, 233–55Google Scholar.

¹⁴³ Ultimately, in a series of twentieth-century cases articulating the rights of parents and children under the Due Process Clause, the U.S. Supreme Court recognized constitutional limits on the state's power to interfere with parents’ custody of children, and its authority to deprive children of liberty. See generally Meyer v. Nebraska, 262 U.S. 390 (1923); In re Gault, 387 U.S. 1 (1967). Legal challenges to children's detention as material witnesses, like Bolt, anticipated those landmark cases.

¹⁴⁴ See, e.g., NYSPCC Forty-Third Annual Report (1918), 21; Instructions for Officers and Staff of the New York Society for the Prevention of Cruelty to Children (1931), 10, NYSPCC Archive. Some prosecutors today continue to use material witness warrants and detention to secure the cooperation and testimony of victims of gender-based violence and trafficking, including minors. For documentation and critique of that practice, see Goodmark, Leigh, Imperfect Victims: Criminalized Survivors and the Promise of Abolition Feminism (Oakland: University of California Press, 2023), 27, 62–71Google Scholar.

¹⁴⁵ 1896 N.Y. Laws 384–85; see also Fifth Annual Convention (1894), 153, NYSPCC Archive. Reports differed as to whether the calendar preference actually ensured short detentions for child witnesses. See “Child Witness Detention,” New York Times, August 14, 1903; NYSPCC, Forty-Second Annual Report (1917), 32.

¹⁴⁶ Elbridge Gerry to William L. Strong, May 24, 1896, Early Mayors Records, Box 312, New York City Municipal Archives. Gerry urged Mayor Strong to support adding judges to “relieve the calendar” in New York's felony court, pointing out the many children who were detained for months “in the custody of the Society” because their “testimony [was] required” in rape and murder trials. Id.

¹⁴⁷ 1922 N.Y. Laws 1262–1263. The legislature provided the same jurisdiction to New York City's previously established children's courts. See 1924 N.Y. Laws 498.

¹⁴⁸ 1922 N.Y. Laws 1267; 1924 N.Y. Laws 502. For current law governing material witness detention, see N.Y. Fam. Ct. Act § 158; and N.Y. Crim. Proc. Law Art. 620.

¹⁴⁹ Though girls were a minority of the total cases handled by the children's courts—about 10,000 to 15,000 cases of delinquency and neglect each year—they consistently formed the majority of material witness cases, within that total. Court reports clarified that the material witness category “include[d], primarily, the victims in statutory rape cases,” who were held by the SPCC and supervised by the children's court to secure their testimony in criminal trials. Annual Report of the Children's Court of the City of New York (1925), 49.

¹⁵⁰ On skepticism of girls, see notes 13–14 above. In the growing body of psychological literature on child witnesses in the Progressive Era, which I explore in other work, some authorities presented children, and girls in particular, as “the most dangerous of all witnesses.” Whipple, Guy Montrose, “The Psychology of Testimony,” Psychological Bulletin 8, no. 9 (1911): 308CrossRefGoogle Scholar.

¹⁵¹ People v. Dobias, TTC case 1355 (1911), 36, 32. For other examples where attorneys referred to the child witness's detention in NYSPCC custody, see People v. Kaplan, TTC case 2646 (1919); and People v. Sherman, TTC case 2649 (1919).

¹⁵² People v. Blandoli, TTC case 1494 (1912), 122.

¹⁵³ For example, in a much-publicized sexual assault trial in 1908, one complaining witness “recanted the story she had told the Grand Jury,” testifying at trial that she lied because a “Children's Society” agent “had threatened to ‘put her away’ and keep her from her mother if she did not testify” against the defendant. Prosecutors then charged the teenaged witness with perjury. “Hitchcock Set Free: Girl Recants Story,” New York Times, March 17, 1908. The Brooklyn SPCC shared an anecdote that revealed the flipside of that dilemma: a young girl refused to testify against the man “charged … with impairing her morals,” and later admitted that “the defendant met her coming from school, and frightened her by telling her that if she testified, the law provided that she must be committed to an institution”—likely referring to laws authorizing girls’ commitment as wayward minors. The SPCC presented the story as proving the need to confine children “as material witnesses for the State.” Brooklyn Society for the Prevention of Cruelty to Children, Forty-Fourth Annual Statement (1924), 9.

¹⁵⁴ Commissioners on Practice and Pleadings, New York Field Codes 1850–1865 (Union, N.J.: Lawbook Exchange, 1998), 1: 715.

¹⁵⁵ McGough, Child Witnesses, 8.

¹⁵⁶ See id., chs. 6 & 9; Friedman and Ceci, “The Child Quasi Witness.”

¹⁵⁷ See, e.g., Appleton, Susan Frelich, “Restating Childhood,” Brooklyn Law Review 79 (2014): 525–49Google Scholar; Dailey, Anne C. and Rosenbury, Laura A., “The New Law of the Child,” Yale Law Journal 127 (2018): 1449–537Google Scholar; Huntington, Clare and Scott, Elizabeth S., “Conceptualizing Legal Childhood in the Twenty-First Century,” Michigan Law Review 118 (2020): 1371–458CrossRefGoogle Scholar.