The conviction of Antonio Blandoli for rape in 1912, in one of dozens of rape trials held in New York City that year, was not an extraordinary event in its time.Footnote 1 From a historian's vantage, though, People v. Blandoli reveals how intersecting changes in evidence law, criminal law, and the state's police power enabled a result that almost certainly would not have been possible even a few decades before. Prosecutors relied on the testimony of three girls, aged 11–13, to prove second-degree rape, which New York law then defined as “an act of sexual intercourse with a female, not [the defendant's] wife, under the age of eighteen years,” without proof that it was against her consent.Footnote 2 As scholars have observed, actions like Blandoli's would most likely not have been chargeable as a crime a quarter-century earlier.Footnote 3 Before New York joined a wave of reform around the United States and raised the age of capacity to consent to sexual intercourse, the state had followed the common-law rule fixing the age of consent at ten.Footnote 4
Less appreciated has been the way in which important reforms in the law of evidence and criminal procedure allowed Anna and two other girls to testify against Blandoli. Before the late nineteenth century, Anna might well have been deemed too young to testify, yet too old to charge rape, at least on the facts of her case.Footnote 5 The girls’ testimony, in 1912, depended on the erosion of age-based presumptions of incompetency and a relaxation of the test of oath understanding used to qualify witnesses. In addition, the prosecution relied on a late-nineteenth-century legislative reform in New York that allowed judges to dispense with the oath requirement for young children, enabling Anna's 11-year-old companion to give unsworn, corroborating testimony. Blandoli's prosecution also depended on the state's expanded capacity to police and prosecute offenses committed by and against children, including its power to summon child witnesses, willing or not, to tell their stories in court. In the weeks between Blandoli's arrest and trial, the three girls who testified were removed from their parents and held in the custody of the New York Society for the Prevention of Cruelty to Children (NYSPCC) in order to ensure their participation as witnesses.
This article traces the legal changes that brought Anna and many other young New Yorkers to the witness stand in the late nineteenth and early twentieth centuries, presenting a case study that helps explain a broader transformation in the legal treatment of children as witnesses since the mid-nineteenth century.Footnote 6 That transformation has made children's evidence more important to the enforcement of criminal law and the regulation of family life, in the modern era, but has not resolved deep concerns about children's role as witnesses in an adversarial legal system. The story recounted here begins to answer questions largely unaddressed by scholarship on both evidence law and children's legal history.
First, this article supplements the literature on the modernization of evidence rules by examining a phenomenon that adult-centered scholarship does not explain: the law's treatment of child witnesses. Holly Brewer has shown how children came to be “legally silenced” by evidence rules in the eighteenth century, but scholars have not examined how and why child witnesses reemerged.Footnote 7 The changes that allowed Anna Pollack to testify when she did, in some respects, aligned with a general movement, in the nineteenth-century U.S., to abolish or amend English common law's “highly restrictive” witness disqualification rules—a trend welcomed by the leading authority on evidence in the early twentieth century, John Henry Wigmore.Footnote 8 But, in crucial respects, liberalization of the law governing children's testimony did not conform neatly to broader trends in evidence law. Generally, as legal historians have shown, witness disqualification rules were replaced by reliance on juries’ credibility judgments, aided by lawyers’ cross-examination of witnesses, which Wigmore called “the greatest legal engine … for the discovery of truth.”Footnote 9 When it came to children, however, there were, then as now, grave concerns about the effectiveness of cross-examination as a method of ascertaining truth, and its strategic value in discrediting opposing witnesses.Footnote 10 Indeed, treatise writers and practitioners in the late nineteenth and early twentieth centuries cautioned that aggressive cross-examination of children could be counterproductive, and some also expressed skepticism about the jury's ability to judge children's credibility.Footnote 11 Thus, scholars’ persuasive account for the nineteenth-century demise of common-law restrictions on adult testimony does not so readily explain changes in the law governing children's testimony. By tracking New York's evolving legal treatment of child witnesses in the late nineteenth and early twentieth centuries, which paralleled and in some ways surpassed reforms in other states, this article adds a missing chapter to the story of evidence law modernization.
This overlooked chapter points to a different explanation for legal change in the case of child witnesses. The rise of cross-examination did not suffice to sweep aside limits on children's testimony; rather, the imperative for the reform of evidence rules and procedure flowed, perhaps unexpectedly, from a revolution in substantive laws governing childhood. By the end of the nineteenth century, in New York and states across the country, major domains of substantive law had transformed to recognize new legal protections for children, including revisions to custody and tort doctrines, legislation requiring school attendance, restrictions on child labor, and criminalization of many forms of child abuse.Footnote 12 Enforcing those laws demanded, and to a considerable degree achieved, greater participation by children—or, from another perspective, more frequent ensnarement of children—in the legal system. The prosecution of sexual crimes against children under reformed statutory rape laws, in particular, heightened demand for young girls’ testimony. Progressive-Era courts encountered children as plaintiffs, criminal complainants, defendants, and witnesses—not for the first time, to be sure, but in greater numbers than before, and more often in cases that centered on their legal status as children.
The new substantive law of childhood collided with historically long-standing anxieties about children's role in the legal system, especially as witnesses. Those anxieties were embodied in common-law rules and trial practices, in place since at least the eighteenth century, that constrained children's ability to testify—obstacles that had to fall to enable robust enforcement of child protection laws, even as many of the concerns underlying the old rules lingered.Footnote 13 It was not a frictionless process. Easing restrictions on children's testimony, in effect, meant treating children more like adults, or at least as eligible for adult rights. But the idea underlying the late-nineteenth-century child-saving movement was that childhood was special and distinct from adulthood, in ways the law should recognize and reinforce. Given that, and given deeply rooted skepticism about children's reliability and lesser faith in cross-examination when it came to young witnesses, legal change was hardly assured. But efforts to extend substantive legal protections to children eventually produced pressure to alter legal rules that had long precluded children from giving evidence, by creating a demand for testimony that only children could provide, and by empowering groups, like the NYSPCC, committed to enforcing child protection laws using children's evidence. Thus, the child protection movement did not simply transform substantive law, in ways that scholars have recounted; it also set off changes in evidence law and procedure, a feedback effect that scholars have not examined.Footnote 14
Furthermore, the erosion of limits on children's testimony formed an important, often overlooked, mechanism by which the new law of childhood expanded the power and capacity of the state.Footnote 15 The welter of child protection laws and doctrines that arose in the nineteenth century not only enlarged the state's authority over children; they also drove state actors to gather more information about children's lives, including information only accessible through children's testimony. Incorporating children and state-building into the story of American evidence law modernization adds a layer of complexity to standard accounts. The history of child witnesses since the nineteenth century could be told, from one perspective, as a story of progress, in which lawmakers and judges, moved by new ideas about children's rights and capabilities, discarded outmoded rules that limited children's ability to speak and seek redress for harms in court. But from another perspective, the story is a murkier one, in which the state haled young witnesses into court to serve the ends of criminal law enforcement, without adequate methods of eliciting reliable testimony, and with little regard for the traumatic effects of subjecting children to intrusive questioning in court.Footnote 16 Coercive methods for securing children's testimony fell most heavily on children in New York's working-class, immigrant communities—and girls, most of all.Footnote 17 On that account, the child protection mandate, and the changes it produced in evidence law and procedure, did more to empower the state than to liberate children.
Both stories help to explain legal reforms in Progressive-Era New York, but they also help to explain broader patterns in the law's treatment of child witnesses over time. The state's need for children's evidence has spurred waves of legal and procedural reform, without ever resolving deep-seated anxieties about children's role as witnesses. History lays bare the harms of excluding children's voices, but also reveals the costs, and still-unsettled dilemmas, that came with making children into witnesses for the state.
Child Protection and the Mandate for Reform
Today, children regularly speak in court, in delinquency, abuse and neglect, and custody cases, and as witnesses in criminal prosecutions and civil suits.Footnote 18 Modern practice reflects a transformation in the law's treatment of children's evidence. Traditionally, English and American courts, especially in criminal cases, commonly excluded children under 10, or under 14.Footnote 19 The common-law rule, reiterated in nineteenth-century treatises and legal decisions, fixed “no precise age” under which children were “absolutely excluded” as witnesses, but children under 14 were not presumed competent, so their ability to testify turned on the court's examination of their understanding of “the nature and effect of an oath.”Footnote 20 Evidence guides endorsed a stringent test of competency: in order to give sworn testimony, children, like adults, must demonstrate comprehension of “the religious sanction implied in an oath.”Footnote 21 The first codification of New York law, in 1829, essentially enacted the common-law rule, providing that when “an infant, or a person apparently of weak intellect,” was offered as a witness, the trial court should “examin[e] such person, to ascertain his capacity, and the extent of his religious and other knowledge,” to determine whether that person could be sworn.Footnote 22
Thus, in nineteenth-century New York, similar to other states, there were two main limitations on children's testimony: the presumption that “infants” were not competent, meaning that their ability to testify under oath depended on the methods and standards by which courts assessed their “capacity” and “knowledge,” and the absence of any provision permitting courts to dispense with the oath for young witnesses.Footnote 23 Such restrictions rested on longstanding assumptions that young children typically lacked the requisite understanding to testify, and that cross-examination—seen as an effective replacement for other common-law witness disqualification rules—was not as sure a method of deterring or detecting falsehood in the case of child witnesses. In the late nineteenth century, however, common-law restrictions on children's testimony ran up against a new and powerful countervailing force: the law enforcement imperatives of the child-saving movement.
In the decades following the Civil War, New York and most other states enacted major reforms that enshrined in law a new cultural understanding of childhood as a distinct and protected stage of life, including legislation restricting child labor, mandating school attendance, and raising the age thresholds for consent to sex and criminal culpability. Those reforms enhanced the power of the state—and the power delegated to private organizations like the NYSPCC—to intervene in family life.Footnote 24 The movement also drew support from a new developmental model of childhood, popularized by psychologists like G. Stanley Hall, which marked adolescence as a critical stage of moral and intellectual growth.Footnote 25 To the extent such theories envisioned a prolonged period of childhood immaturity, though, they did not necessarily support changes in evidence law and practice that would enable more adolescents to testify in court—at least not in a straightforward way. The issue of children's competency as witnesses laid bare a tension within the new law of childhood. On the one hand, child protection legislation sharpened the legal divide between children and adults; but on the other hand, as reformers soon recognized, enforcing those laws required a system of evidence that treated children more like adults.
As New York's example illustrates, a central factor in easing restrictions on children's testimony was the rise of new substantive laws and law enforcement priorities that brought more children into court. Though the 1848 Field Code and other midcentury legislation had abolished other common-law competency rules in New York, including the disqualification of interested parties and criminal defendants, age-based competency rules did not fall away at the same time.Footnote 26 Greater reliance on cross-examination and the jury's fact finding power was a key factor behind the repeal of disqualification rules, at least in the case of adult witnesses, but it was not, by itself, enough to sweep aside all limits on children's testimony. Ultimately, New York did not repeal the requirement that courts examine young witnesses’ competency, nor did it abolish the general rule requiring testimony under oath or affirmation. But, as Parts II–IV detail, there were important changes to evidence rules and practices in the Progressive Era. Courts modified their approach to competency examinations, and the legislature carved out a major exception to the oath requirement for young witnesses in criminal cases. In addition to lifting constraints on children's testimony, the state adopted aggressive measures for obtaining their testimony, including pre-trial detention of child witnesses.
In all of those changes, advocates for the enforcement of child protection laws—in particular, NYSPCC officers—played a key role.Footnote 27 The NYSPCC was incorporated in 1875 as a private organization with statutory authority to bring “complaint[s] before any court … for the violation of any law relating to or affecting children.”Footnote 28 It soon became, in NYSPCC president Elbridge Gerry's words, a kind of “subordinate governmental agenc[y]” in the state's nascent child welfare and juvenile justice bureaucracies.Footnote 29 New York's delegation of police powers to a quasi-public organization typified state-building strategies in the Gilded Age, particularly in the realm of family regulation, and the NYSPCC became a model for anti-cruelty societies incorporated across New York State and in dozens of other states by 1900.Footnote 30 Over the second half of the nineteenth century, New York enacted a wide array of laws “affecting children,” including laws requiring children to attend school and forbidding factory labor, and legislation expanding the grounds on which adults could be prosecuted for endangering children's welfare.Footnote 31 Advocating for such legislation became part of the NYSPCC's work, in addition to its core function of assisting police and district attorneys in investigating and prosecuting violations—funded by fines on those convicted.Footnote 32 Created as a lobbying arm of New York State's animal and child protection societies when they held their first annual convention in 1890, and chaired by Gerry, the “committee on legislation for children” pushed successfully for laws that expanded the state's child protection machinery over the next two decades.Footnote 33
An important feature of the new laws “affecting children,” as the NYSPCC recognized, was that their enforcement often depended on evidence that only children could provide. The NYSPCC's annual reports frequently complained about the challenge of prosecuting crimes against children whom courts deemed incompetent to give sworn testimony: in a typical case in 1888, a mother accused of beating her son “escaped deserved punishment” because the boy, “who was the only witness in [the] case, proved an incompetent witness.”Footnote 34 The problems identified by the NYSPCC were not new; eighteenth-century critics of common-law evidence rules recognized that excluding children's testimony in “Cases of foul Facts done in secret” was to “deny[] them the Protection of the Law.”Footnote 35 But the issue of children's evidence became more salient in the late nineteenth century because of the child protection strategies distinctive to that period: codification of an ever-growing array of offenses against children, and empowerment of new institutions to punish violators in court. In New York, in particular, the political clout and activism of SPCC leaders drew legislators and judges’ attention to the issue.
It was not just new child welfare legislation that brought greater numbers of children into court around the turn of the century, but also a surge in the prosecution of sexual violence against children, primarily girls. By Stephen Robertson's estimate, in the period from 1790 to 1876, about one-third to one-half of female rape complainants in New York City were younger than 19, but starting in the 1880s, the share of complainants under age 18 rose sharply to over eight in ten cases, with similar proportions in cases charging sodomy, abduction, seduction, incest, and carnal abuse.Footnote 36 As Estelle Freedman has shown, a major consequence of the nationwide movement in the late nineteenth century to raise the age of consent, and thereby expand the offense of statutory rape, was the “construction of rape as a crime committed primarily against youth.”Footnote 37 Thus, the admissibility of children's evidence, in trials and grand juries, became a key issue in the new era of sexual offenses.
One might expect that concern for young children's testimony would fade after amendments to New York's rape law brought teenaged girls under the age of consent, enabling statutory rape charges in cases where complainants were over the age of presumptive competency to testify. But the results were complex. Like many states in this period, New York raised the age of consent to sexual intercourse from 10 to 16 years in 1887 and to 18 years in 1895, and in 1892 divided the crime of rape into two grades: first-degree rape, punishable by up to 20 years’ imprisonment, included sexual intercourse “with a female not [the defendant's] wife … without her consent,” or when, “by reason of … immaturity,” she did “not offer resistance”; second-degree rape, punishable by up to 10 years, was sexual intercourse with a female below the age of consent “under circumstances not amounting to rape in the first degree.”Footnote 38 New York's SPCCs advocated for shifting the offense of statutory rape to the novel category of second-degree rape, in order to give juries the option of convicting on a lesser offense in cases where older girls appeared to consent to sex.Footnote 39 Progressive-Era prosecutors still found it difficult to convict defendants in such cases, though, and girls under 12 remained a sizeable share of rape complainants.Footnote 40 Thus, young children's ability to be heard—and older children's tendency to be believed—remained central issues. From the NYSPCC's perspective, securing convictions would require more than just changing the rape statute. It would also require reforming the law governing children's testimony.
The policy imperatives of the child-saving movement pushed the law to accept, even compel, children's evidence—even as public debate and concern about children's reliability persisted. In New York, the state's child protection mandate shaped evidence law and court practice in several ways: first, creating pressure for legislative reform that allowed children to testify unsworn in criminal cases; second, pushing courts toward a more flexible test of child witnesses’ competency; and third, authorizing aggressive methods to secure children's testimony in court, including through pre-trial detention of child witnesses in the NYSPCC's custody. Those legal reforms brought more children to the witness stand, but did not ensure that juries would believe them. Not only age, but gender, race, class, and other markers of difference powerfully influenced the presentation and reception of children's evidence, in practice.Footnote 41 Long after the repeal of race-based witness disqualification rules in the wake of Emancipation, and even after the demise of evidentiary rules that imposed special burdens on women, an “implicit hierarchy of credibility” has remained embedded in the administration of evidence law.Footnote 42 Children's place in that hierarchy has evolved over time. This article explains a crucial stage in that evolution, when lawmakers and judges rolled back certain formal barriers to children's testimony, but did not eradicate the complex set of class, race, and gender biases that have long pervaded determinations of witness competency and credibility.
New York's “Enlightened Modern Statute” and the Return of Children's Unsworn Testimony
In the late nineteenth century, a major obstacle to the reception of children's evidence was New York's preservation of the common-law rule precluding statements by children not under oath. Thus, at the same time that the NYSPCC lobbied to amend New York's rape law, it also pressed for “a very important amendment … to the Criminal Code” that departed from the eighteenth-century rule against unsworn testimony.Footnote 43 After a similar bill failed in 1891, in 1892 the legislature added a new rule to the Code of Criminal Procedure, providing that, in “criminal proceedings,” children under 12 years old who “d[id] not in the opinion of the court … understand the nature of an oath” could give evidence, “though not … under oath,” if the court found they had “sufficient intelligence to justify the reception of the evidence,” and so long as there was no conviction “upon such testimony unsupported by other evidence.”Footnote 44 New York courts generally interpreted the law to create a presumption that a witness under 12 was not competent to give sworn testimony in a criminal case, requiring a “proper preliminary examination” to overcome that presumption, but also to give courts substantial discretion to determine a child's capacity to testify, sworn or unsworn.Footnote 45 Courts also read the law to extend to grand jury proceedings, which gave prosecutors leverage to extract guilty pleas, if they could secure indictments based on a child's unsworn grand jury testimony.Footnote 46 New York modeled the new law on similar legislation recently enacted in the U.K.Footnote 47
Wigmore argued that the “enlightened modern statutes” of England and New York “should be universally followed,” and the oath-capacity requirement eliminated for child witnesses in all cases.Footnote 48 Several other states in this period, by judicial decision, permitted trial courts to omit the strict requirement that children understand the nature of an oath; however, few other state statutes expressly allowed children's unsworn testimony, at least in criminal cases, until reforms of the later twentieth century.Footnote 49 Current New York law retains a similar exception allowing children to give unsworn testimony in criminal cases if the court finds them “ineligible to testify under oath” but “possess[ing] sufficient intelligence and capacity,” again with the proviso that unsworn evidence be corroborated.Footnote 50
The arguments for the 1892 legislation, though they did not immediately prevail in other states, illustrated how the child-saving movement gave new force to criticisms of eighteenth-century evidence law. In a state with a powerful child protection lobby, the mounting need for child witnesses in criminal prosecutions—and the growing sense that oath understanding was a flawed test of witness qualifications—brought about a major, lasting change to evidence law and criminal procedure. Leaders of the NYSPCC pitched the reform as critical to the enforcement of child protection laws and the punishment of intrafamilial and sexual violence—“cases of brutal violence [where] the child was the only witness to the transaction,” where “[o]ffenders escaped simply because the child was unable to tell its own story.”Footnote 51 Of course, young children's evidence was not always excluded before the 1892 law; indeed, children appeared sporadically in newspaper coverage of criminal trials in New York, most often as witnesses where men were charged with murdering their wives.Footnote 52 In any case, the new rule did not eliminate other constraints on the reception of children's evidence, and the NYSPCC's annual reports continued to complain of cases in which children were found “too young to testify.”Footnote 53 Still, the law enacted a significant change from the common-law rule, under which “the child was unable to open its lips [if] it did not understand the nature of an oath.”Footnote 54 It substituted a more permissive standard for children to testify unsworn—namely, whether they had “sufficient intelligence and capacity”—that courts could flexibly interpret.Footnote 55 Although judges did not always articulate how they differentiated between the standards for sworn and unsworn testimony, judges’ use of the law indicates that they understood it to allow testimony by children who would otherwise be silenced by the oath understanding test. Additionally, as courts construed it, the law lowered the presumptive age of competency, in criminal cases, to 12 years old, rather than 14.
Newspaper coverage and court records show that judges quickly made use of their newfound discretion to allow young children's unsworn testimony in criminal trials, as in Anna Pollack's case in 1912.Footnote 56 In People v. Blandoli, the prosecution benefited from the 1892 law, which allowed another witness to Blandoli's conduct, 11-year-old Julia Rottenberg, to testify unsworn.Footnote 57 For many judges, the law was appealing, not just because it gave them greater power, but because it removed the difficult choice of either compelling a young child to swear an oath the child did not understand, or excluding valuable evidence. As one New York trial judge explained, “with young children, unless it be clearly established that they understand the consequences of their acts, I do not like to put children under the obligation of swearing upon the Gospel.”Footnote 58 The major impetus for the law was the state's need for young children's testimony in order to enforce a host of newly codified offenses against children. But the reform embodied the logic of child protection in another sense as well. Dispensing with an ineffectual oath, as many judges saw it, spared young children from the peril of false swearing.
Also important, in 1906 the law survived a constitutional due process challenge, brought by a man convicted of murdering his wife in a trial where his 9-year-old son testified unsworn.Footnote 59 New York's high court affirmed the legislature's power to “change the rules of evidence as they existed at common law,” while noting the safeguards that the legislature had preserved around unsworn testimony: the corroboration requirement, the “test of cross-examination,” and the new law's limited application only to children for whom “the oath would be useless and yet the evidence might be valuable.”Footnote 60 In the court's view, the law rightly recognized that “[a] child may not be able to understand the nature of an oath and yet be capable of telling what he saw and heard … with entire accuracy.”Footnote 61 Though the 1892 legislation did not eliminate the rule that witnesses must understand the oath in order to give sworn testimony, it was a concession that oath understanding—what Wigmore called “the common-law belief”—was a flawed test of a witness's qualifications and reliability.Footnote 62 Ultimately, as Part III discusses, that recognition shaped how trial courts assessed child witnesses in competency examinations.
The growing acceptance of young children's unsworn testimony in criminal court cases may also have helped clear a path for children to speak unsworn in other cases, and other courts, where their evidence was deemed essential. An important limitation on the 1892 law was that it only permitted children's unsworn testimony in criminal cases; thus, in civil trials, children under 14 still had to demonstrate their understanding of an oath in order to testify.Footnote 63 However, more informal procedures prevailed in specialized courts for delinquent and neglected children, established in New York and many states in the early twentieth century.Footnote 64 In 1924, the New York legislature expressly permitted judges in “children's courts” (what other states termed juvenile courts) to “dispense with the formality of … [the] oath” when “taking the testimony of children,” which was likely already their usual practice.Footnote 65 For courts tasked with extracting information about children and their families in delinquency and neglect cases, the oath requirement was not sacrosanct; it was an obstacle. Thus, the oath requirement fell away in juvenile courts, even as civil trial courts continued to exclude unsworn testimony.
Though it struck a significant blow to the common-law oath requirement, the 1892 reform also illustrated lawmakers’ reluctance to remove all restrictions on children's evidence. Embedded in the reform was an important limitation: in cases where the court permitted a child to testify unsworn, there could be no conviction “upon such testimony unsupported by other evidence.”Footnote 66 That rule was not an innovation, but a requirement that the criminal code attached to various types of evidence deemed inherently unreliable.Footnote 67 Notably, New York's rape law, as amended in 1886, contained a similar corroboration requirement, meaning that a rape complainant's testimony must be supported by other evidence on every element of the charge.Footnote 68 Despite criticisms in many quarters, including Wigmore's treatises, that rule endured until the late twentieth century, when the legislature limited it to a narrow class of rape cases.Footnote 69 The rule requiring corroboration of children's unsworn testimony in criminal cases remains.Footnote 70 In the late nineteenth and early twentieth centuries, the corroboration requirement for children's unsworn testimony—together with the corroboration requirement for child rape complainants, sworn or unsworn—produced multiple reversals of convictions for insufficient evidence.Footnote 71 New York trial transcripts offer evidence that prosecutors preferred to offer young witnesses’ testimony under oath, if the judge agreed, while defense counsel preferred those witnesses to testify unsworn, since it entitled the defendant to an instruction that the jury could not convict without corroboration because the witness was not under oath.Footnote 72
Another consequence of corroboration rules, particularly in prosecutions of sexual offenses against children, was to elevate the importance of medical evidence.Footnote 73 The NYSPCC played a key role in supplying that corroborative evidence. The Society employed physicians to examine children alleged to be the victims of rape or physical abuse, “to corroborate or disprove the truth of the assertion,” and to testify in court about their findings.Footnote 74 The NYSPCC also successfully lobbied for a 1905 law that created an exception to the physician–patient privilege, whereby doctors and nurses could be “required to testify” about the condition of a patient under 16 years old who appeared to be “the victim or the subject of a crime.”Footnote 75 In Anna Pollack's case, for example, a “physician for the children's society,” testified that he found evidence of “recent penetration by a blunt instrument,” the standard language that doctors used to support charges of sexual intercourse with a virginal girl.Footnote 76 Prosecutors also called NYSPCC officers to testify about their investigations, including in Anna's case, and the NYSPCC's manuals urged officers to record any inculpatory statements that defendants made upon arrest, because “frequently such testimony by the officer is the sole corroboration of a child's charges against an adult.”Footnote 77
With the statute permitting children's unsworn testimony, prosecutors, as in Anna's case, found another source of corroborative evidence for child rape complainants: unsworn testimony by other children who might otherwise be too young to testify under oath. In People v. Blandoli, 11-year-old Julia Rottenberg offered eyewitness testimony about the defendant's conduct, not under oath, after Judge Mulqueen examined her and concluded it was “better” not to swear her.Footnote 78 The judge's examination of Julia does not read very differently from his questioning of Anna, the 13-year-old complaining witness, suggesting that factors not visible in the trial transcript—possibly, the more childish appearance and demeanor of a girl 2 years Anna's junior—may have influenced the judge's determination that Anna could testify under oath, but Julia should not.Footnote 79 As the next Part shows, competency examinations turned on judges’ case-by-case discretion, more so than any formal rule of law; thus, even as many judges embraced the trend toward a more flexible standard for child witnesses’ qualifications, in many ways it remained a fickle test.
The Capacity to be Sworn: Judicial Examination of Children's Competency
New York's 1892 law created a route for the admission of young children's unsworn testimony in criminal cases, but it did not change the basic rule governing the admission of children's sworn testimony. The admissibility of a child's sworn testimony depended on the trial court's assessment of whether the child was competent to take the oath—a discretionary determination, subject to deferential appellate review, and governed by few statutory guidelines. New York's nineteenth-century statute directed courts to “examine an infant … to ascertain his capacity and the extent of his knowledge.”Footnote 80 In a procedure particular to child witnesses, when a party called to the stand a child under the presumptive age of capacity, unless the opposing party agreed to the witness, the court conducted a preliminary examination, or voir dire, meant to assess whether the child was competent to be sworn. Except in jurisdictions that have eliminated the competency inquiry, that examination remains the law's primary screening device for children's evidence. As court decisions and transcripts of child witnesses’ examinations reveal, several features of the modern competency inquiry developed around the turn of the twentieth century, forged by a growing demand for children's testimony and new ideas about children's moral and mental development.
In New York courts in this period, competency examinations varied from case to case, but a few patterns emerged. First, appellate courts, as well as NYSPCC officers, reminded trial courts of their obligation to examine children offered as witnesses to assess their competency, and instruct them if necessary, rather than simply excluding children who were under the presumptive age of competency. In addition, at least some courts moved away from what Wigmore called the “theological test”—a test of whether the witness appreciated the religious significance of swearing—and instead probed children's ability to perceive and describe events, to distinguish truth from falsehood, and their recognition of a moral duty to tell the truth. Finally, courts’ willingness to qualify children as witnesses depended in part on the nature of the case, and the state's need for the evidence.
New York appellate courts reaffirmed that when a party offered a child as a witness, however young, trial judges had not only discretion, but an obligation to conduct a “preliminary examination of the witness … to ascertain her capacity and the extent of her knowledge,” making clear that the exclusion of a child's testimony based on age, without any examination of the child, was reversible error.Footnote 81 Meanwhile, as frequent participants in cases involving child witnesses, NYSPCC officers reminded trial judges of their obligations, and monitored how they conducted preliminary examinations of children, while NYSPCC manuals trained officers on salient points of law.Footnote 82 For example, in 1903, NYSPCC president John Lindsay wrote to a judge of Brooklyn's newly created children's court, to underscore courts’ “right and duty … to see that a child of tender years, ignorant of the nature and obligation of an oath, is properly instructed in that regard before its competency as a witness is determined.”Footnote 83 Trial judges could not omit the preliminary examination, but they had latitude in how to conduct it, and how to evaluate a child's answers. In a Texas man's appeal from a murder conviction based on a 5-year-old boy's sworn testimony, the U.S. Supreme Court stated the prevailing view in 1895, citing caselaw from state courts around the country: “The decision of [a child's competency] rests primarily with the trial judge, who … may resort to any examination which will tend to disclose [the child's] capacity and intelligence, as well as his understanding of the obligations of an oath,” that is, his appreciation of “the difference between truth and falsehood, and the consequences of telling the latter.”Footnote 84 New York courts likewise affirmed trial judges’ discretion to permit children to testify under oath, based on children's indications that they “understood that to tell a lie under oath was wrong, and that [they] might be punished for it.”Footnote 85 The test of competency articulated by New York courts in the late nineteenth century echoed the one stated by eighteenth-century English jurists, but it had changed emphasis in a few important respects.
Increasingly, a child's acknowledgment that lying was “wrong” and would be “punished” sufficed to establish the child's competency to take the oath, without proof that the child understood the oath's religious significance. New York trial transcripts from the turn of the twentieth century offer some evidence of that trend: as in Anna Pollack's case, judges could simply ask whether it was “good or bad to lie,” without testing the child's belief in divine punishment for false swearing.Footnote 86 Though judges often continued to ask about a child's belief in God, or Sunday school experience, they were satisfied that children could take the oath where they had an age-appropriate concept of the worldly consequences of lying, “in and out of court”—for instance, where an 11-year-old boy stated that “for the former his parents would whip him, and for the latter he would be sent to prison.”Footnote 87 A trial judge properly allowed an adolescent boy to testify, New York's high court held, where he told the judge that “he knew what the punishment is for swearing falsely and that he knew what perjury means,” suggesting he had “some conception of … the obligations of an oath,” even though he responded “no” when asked if he knew “the nature of an oath.”Footnote 88 In the early nineteenth century, by comparison, courts regularly “question[ed] infants of tender years … as to their religious knowledge, and whether they believe in a Supreme Being, and a future state of rewards and punishments,” as a prerequisite for taking the oath.Footnote 89 One reason for the shift in approach was New York's repeal of the common-law rule disqualifying witnesses for lack of religious belief, in the mid-nineteenth century.Footnote 90 However, as Wigmore noted, those reforms did not immediately end courts’ exclusion of “children qualified to testify but lacking in theological understanding” of the oath.Footnote 91 By the late nineteenth century, the “theological” test of oath understanding had not altogether disappeared, but it faced mounting criticism, when applied to exclude children.Footnote 92
As Wigmore and many judges saw it, assessing children's competency based on their understanding of an oath, particularly when that assessment took the form of a “crude” religious test, failed to measure more relevant indicia of testimonial reliability: witnesses’ capacities for “observation,” “recollection,” and “communication,” and their “sense of moral responsibility … to speak the truth.”Footnote 93 The oath understanding test, courts increasingly recognized, was a poor gauge of children's actual moral and cognitive maturity.Footnote 94 As the New York Court of Appeals explained, a “child may not be able to understand the nature of an oath and yet be capable of telling what he saw and heard on a certain occasion with entire accuracy.”Footnote 95 In New York, critique of the oath understanding test helped produce important legislative reform allowing young children to testify unsworn in criminal cases. Though most other states lacked similar legislation in the early twentieth century, multiple state high courts declared that trial courts could admit children to testify based on a “promise” to tell the truth, or similar acknowledgment of moral duty, rather than a formal oath or affirmation.Footnote 96 Those accommodations reflected a conscious effort to modernize the test of children's competency, to adapt it to the perceived “facts of child-nature.”Footnote 97
Though practice was not uniform, courts in this period worked their way toward a more flexible standard of competency, testing children's cognitive capabilities and “sense of moral responsibility,” rather than their knowledge of the “impiety of falsehood” under oath.Footnote 98 In the 1911 trial of Antonio Blandoli, for example, the judge was satisfied with a fairly perfunctory inquiry into the young witnesses’ concept of the duty to tell the truth. Judge Mulqueen asked the complaining witness if it was “good or bad to lie,” and accepted her reply that it was “bad” to lie, “[b]ecause you don't tell the truth.”Footnote 99 The court's investigation of the witnesses’ perceptual abilities was more concrete. To assess what the girls meant by “the truth,” Judge Mulqueen asked one of them if the court officer before her was “a black man … or a white man,” and asked another if it was raining outside—not so different from how courts a century later tested children's ability to describe their reality accurately.Footnote 100 The judge also asked the complaining witness if it would be a lie to say that the court officer had “hurt” her, a question meant to test her grasp of the wrongfulness of false accusations.Footnote 101 The judge declined to ask her about her belief in God or divine punishment for lying under oath; instead, the core of the inquiry concerned her practical understanding of the difference between truth and lies and her capacity to relate facts accurately. In cases where trial judges admitted children to testify after only a brief voir dire—focusing on the witnesses’ knowledge that they faced punishment for lying—judges on appeal deferred to trial judges’ discretion; if the child's testimony turned out to be full of contradictions, appellate courts reversed based on the insufficiency of the evidence, not the decision to allow the child as a witness.Footnote 102 Those holdings left room for trial judges to develop a permissive test of children's competency, even as they registered concerns about young children's reliability.
Records of competency examinations also revealed an emerging view that courts bore some responsibility to shield children from the stress of in-court testimony—both to protect children's wellbeing, and to produce more reliable testimony. As the New York Court of Appeals explained, the preliminary examination could be “an informal conversation upon indifferent subjects, designed to put the child at ease so that he will talk naturally.”Footnote 103 Some judges favored a lengthy inquiry, touching on the witness's family, schooling, and so on, before probing the child's knowledge of the duty to tell the truth and the punishment for lying under oath. Wigmore saw that method—similar to some juvenile court judges’ approach to questioning children—as a “sound and sensible way to ascertain a child's capacity.”Footnote 104 Wigmore offered a Massachusetts judge's anecdote about examining a 7-year-old witness who “looked frightened,” but who cheered up when the judge asked him about baseball and school, and turned out to be “one of the best witnesses.” The judge reflected that, if he had first asked the young witness “in a stern voice, ‘Do you understand the nature of an oath?’ … the boy would have broken down in a crying spell.”Footnote 105 Judges’ experience with child witnesses—in particular, children's distress under cross-examination—likely influenced how they saw their role as gatekeepers of evidence.Footnote 106
Finally, the nature of the case, and the expected content of a child's testimony, likely affected judges’ willingness to allow young children to be sworn. In cases where children's evidence was considered indispensable—in particular, prosecutions of crimes against children and violations of child welfare laws—the incentives to permit the child to testify were strongest. As advocates for the free admission of children's testimony had long argued, excluding children in such cases denied them legal protection and hampered the state's capacity to enforce criminal law and regulations.Footnote 107 Where the child was not the state's complaining witness, however, that argument had less power. In divorce suits, for example, some courts showed reluctance to admit the parties’ children as witnesses, particularly when children were called to testify against their mother's character.Footnote 108 One New York judge in a 1905 divorce case declared that “no child of eight years [would] ever be permitted to testify in his court, especially when the evidence [was] intended to injure a mother,” although appeals courts reprimanded trial judges who excluded competent children in divorce cases.Footnote 109
Ultimately, the state's interest in children's evidence, more so than the child's interest in testifying, tended to shape judges’ determinations of whether children should be sworn. The need for children's evidence, in order to enforce a slate of new child protection laws, also prompted the revival of an aggressive method of securing children's testimony: court-ordered detention of child witnesses.
Saving the Prosecution, Saving the Child: The Detention of Child Witnesses
In Progressive-Era New York, the law became more permissive and, at the same time, more coercive in its treatment of child witnesses. The greater prevalence of children's testimony in this period was partly the product of evidence-law reforms that removed barriers to children's evidence, and partly a consequence of new efforts to compel children to testify at trials and grand juries. Most notably, lawmakers and judges revived material witness detention as a tool to ensure children's appearance as prosecution witnesses. Thus, for many young victims and witnesses to crime, the law no longer silenced them, but commanded them to speak. The NYSPCC again played an important role, both in advocating the regular use of witness detention, and in housing and transporting child witnesses whom courts committed to its care. Judges and NYSPCC leaders’ justifications for the detention of child witnesses, in the controversies that erupted, revealed how child protection laws propelled both the liberalization of evidence law and the expansion of state authority over children's lives. Defenders of pre-trial witness detention presented it both as a necessity for the enforcement of child welfare laws and the prosecution of crimes against children, and as a safeguard against the special dangers that many associated with child witnesses, namely, their vulnerability to manipulation and suggestion.
New York law had long permitted criminal courts to detain witnesses, of all ages, before and during trial, but the scope of that power, and its uses, evolved over time.Footnote 110 As incarceration of witnesses became more common in the mid-nineteenth century, New York City and other counties created houses of detention to hold witnesses separate from detainees charged with crimes.Footnote 111 Throughout the nineteenth century, a portion of those jailed as witnesses were children. In his 1842 visit to New York City's jail, for example, Charles Dickens observed a “lonely child, of ten or twelve years old,” held as “a witness against his father.”Footnote 112 A New York Times reporter visiting the city's newly constructed House of Detention in 1859 found that the keeper had formed a “class” of “children detained as witnesses,” who were to receive basic schooling while incarcerated.Footnote 113 Conditions at the House of Detention deteriorated; in 1874, a grand jury found that the facility was “utterly unfit for the habitation of any human being,” and warned of its “demoralizing effect upon the young when so confined.”Footnote 114 After controversy mounted around police and prosecutors’ use of the witness detention law against adults—primarily, as a way of pressuring uncharged suspects, too poor to afford bond, to cooperate—lawmakers restricted the scope of the statute, to cover only accomplices, in 1883.Footnote 115 The legislature later revived courts’ expansive power to detain or demand security from any person determined to be a “necessary and material witness for the people in a criminal action,” so long as the person had an opportunity to challenge the determination at a hearing.Footnote 116
Around the same time that the legislature restricted adult witnesses’ detention, the detention of children as witnesses took off on another track, now closely linked to the enforcement of new child protection laws, and aided by institutions recently created for delinquent and neglected children. In 1881, New York passed legislation that specifically authorized the pre-trial detention of child witnesses in criminal cases, and created a role for children's institutions as custodians of child witnesses. The legislature amended the portion of the penal code that set forth various grounds on which courts could commit children to institutions—children lacking “proper guardianship,” and the like—by adding another basis for children to be detained.Footnote 117 The statute provided that “[a]ny magistrate having criminal jurisdiction may commit temporarily to an institution authorized by law to receive children … any child under the age of sixteen years held for trial on a criminal charge … [and] any such child held as a witness to appear on the trial of any criminal case.”Footnote 118 An 1888 amendment to the Code of Criminal Procedure confirmed courts’ power to order the detention of witnesses under 16 years old.Footnote 119 In addition, when the legislature amended the Code to allow courts to accept a parent's promise to produce a child arrested for a minor offense, in lieu of money bail or detention, it expressly excluded children held as witnesses from that option.Footnote 120 NYSPCC president John Lindsay helped author that legislation.Footnote 121
The NYSPCC promptly seized on the child detention law as a tool for “secur[ing] the attendance of … witnesses” and the “preservation of evidence” in criminal prosecutions, as the president reported in 1898.Footnote 122 NYSPCC manuals instructed officers on obtaining court orders for the commitment of children as witnesses until a plea or verdict was reached.Footnote 123 In addition, the NYSPCC began housing at its Manhattan headquarters children detained as witnesses, as well as children charged with crimes, and transporting them to and from the courthouse.Footnote 124 The rooms where children were held, the New York Times reported, were “fitted up so as to dispel the jail idea,” though the windows were “heavily barred, lest some ambitious boys and girls … attempt escape.”Footnote 125 The NYSPCC's annual reports around the turn of the century contained frequent references to children “committed to the Society temporarily as … witness[es],” in prosecutions ranging from men accused of rape and prostitution offenses, to parents who permitted children to hawk newspapers, to shop owners alleged to have sold alcohol or tobacco to minors.Footnote 126 As the Westchester SPCC president explained, Society officers preferred to enforce bans on children's consumption of tobacco by compelling children to testify against the sellers, rather than prosecuting young buyers: “Never consider the child a criminal if we can avoid it, but … use them as witnesses.”Footnote 127 Of course, the threat of potential prosecution—under laws that treated illicit sexual behavior and substance use as forms of juvenile delinquency—provided an additional inducement for children to testify for the state.
The NYSPCC justified the practice of removing children from home and detaining them as witnesses not just as a convenience for law enforcement, but also as a way to make children's testimony more reliable—to keep their evidence “intact.”Footnote 128 In particular, NYSPCC officials, prosecutors, and judges raised concerns that parents and accused defendants pressured children to change their testimony, making confinement and supervision necessary in order to “prevent the child from being contaminated, or being made to tell a different story on the stand, or putting [the child] out of the way.”Footnote 129 In their view, it was better to jail children than to “cause the prosecution to fall to the ground.”Footnote 130 They turned the concerns underlying legal restrictions on children's testimony—notions that children were uniquely vulnerable to pressure and suggestion—into arguments for sequestering children and compelling their testimony, in the name of child protection.
That justification, though, came under attack from those who saw child witnesses’ detention as an unconstitutional denial of bail, an invasion of the home, and an affront to the rights of children and their parents. Witness detention received the most scrutiny when it swept up middle-class children, who otherwise generally escaped the reach of criminal courts and the NYSPCC. In 1902, for instance, the New York Times covered outcry over the detention of an 11-year-old boy as a witness in the prosecution of the theater proprietor who illegally sold the boy tickets. The paper quoted the diatribe of the boy's father, a Manhattan diamond broker: the boy “committed no crime,” yet was “locked up like a common criminal, and even his own father [was] not allowed to see him.”Footnote 131 The father was determined to “find out if a child can be kidnapped by a man because he happens to be a Gerry society officer,” referring to the NYSPCC by its common nickname.Footnote 132 Newspapers also covered controversy around the 1903 case of 14-year-old Morris Moses, committed to the NYSPCC's custody as a witness in the prosecution of the saloon keeper who sold Morris a pint of beer intended for his parents.Footnote 133 The NYSPCC frequently complained about defense efforts to “induc[e] the child witness to commit perjury” in prosecutions of alcohol sales to minors, and often sought to detain children in such cases.Footnote 134 The NYSPCC's own attorney also defended children's detention against court challenges, which might arise, as in Morris's case, when family members were able to get a lawyer. The trial judge in Morris's case defended the policy of detaining child witnesses to prevent “coaching,” to allow “justice [to be] served,” and to ensure that “the child [was] saved from making false statements,” for his own sake.Footnote 135 However, a judge of the intermediate appeals court agreed with Morris's attorney and discharged the boy, calling it “an outrage that a tired mechanic's child, going for a pint of beer, may be cast into prison like a common criminal and actually deprived of bail.”Footnote 136 The case captured competing views on the state's coercive treatment of child witnesses. To some, it was an “outrage” against the rights of children and their parents, but to SPCC officers, it was the more lenient alternative to prosecuting those same children for illicit conduct, and a critical tool for convicting adult violators.Footnote 137
Other legal challenges to the detention of child witnesses generally failed; the claim that witness detention served the ends of child protection and law enforcement prevailed over objections that detention without bail violated children's due process rights. In 1905, New York Supreme Court dismissed a habeas petition for a girl's release from NYSPCC custody, reasoning that “to sustain a writ … would be decidedly against public policy, and would revert to the disadvantage of the people in the prosecution of the criminal offense.”Footnote 138 The same year, the court confirmed the state's unconstrained authority to hold children as witnesses when it rejected a father's claim that his daughter's commitment violated the criminal procedure code and the Constitution—specifically, that it was “unconstitutional in discriminating against children and depriving them of their liberty without due process of law.”Footnote 139 The girl, “the victim of a revolting assault,” had been committed to the NYSPCC's custody as a witness in the prosecution of her alleged assailant.Footnote 140 The girl's treatment was not unusual, as courts commonly ordered the detention of complaining witnesses in statutory rape cases.Footnote 141 In dismissing the habeas petition, Supreme Court justified the detention of children based on their distinctive legal status. The court held that the statutory provisions governing the detention of adult witnesses, which offered greater procedural protections, did not apply to child witnesses. Moreover, the girl suffered no constitutional deprivation because “unlike an adult witness, [she was] held for her own good, as well as in the interests of society and the enforcement of the criminal laws.”Footnote 142 The decision both reaffirmed the broad sweep of the state's police power, and reinforced the conviction that child protection depended on children's testimony. But the legal controversy demonstrated that New Yorkers did not accept the state's expanded powers without question.Footnote 143
Despite parents’ complaints, the records of the NYSPCC and New York juvenile courts show that the practice of child witness detention continued for decades.Footnote 144 Controversy over the practice did generate one legislative reform: an 1896 amendment, modeled on a resolution passed at the NYSPCC's 1894 convention, provided that “cases of offenses by, or against the person of, a child under the age of sixteen years shall have preference over all other cases before all magistrates and in all courts … both civil and criminal; and where a child is committed or detained as a witness … such case shall be brought to trial or otherwise disposed of without delay.”Footnote 145 NYSPCC officers could hardly fail to notice, in Gerry's words, the painful “effects” of young witnesses’ “long-continued separation, through no fault of [theirs], from the external world,” but rather than ending the practice, they argued for speedier prosecutions.Footnote 146
When the legislature established specialized “children's courts” statewide in 1922, it defined those courts’ jurisdiction to include “children who are material witnesses.”Footnote 147 Children's courts had power to order the detention of children “held for a hearing or as a witness” in facilities maintained by the SPCC or other institution authorized to receive children, or “in the custody of some fit person, subject to the supervision of the court.”Footnote 148 The annual reports of New York City's children's courts in the 1910s and 1920s show that the courts consistently dealt with approximately 400–500 material witnesses each year, a disproportionate majority of them girls.Footnote 149 Two factors drove that gender disparity in witness detention: first, the state's heightened demand for girls’ testimony to support sexual assault prosecutions, and second, the popular assumption that female children were especially liable to manipulation and invention.Footnote 150
Another challenge to the detention of child witnesses came during criminal trials, when defense attorneys flipped the NYSPCC's argument that detention prevented the “contamination” of children's evidence. Keeping child witnesses in the NYSPCC's custody, some defendants argued, simply allowed the NYSPCC to apply its own improper influence. In the 1911 trial of a man charged with assaulting his niece, for example, defense counsel asked the 14-year-old complaining witness whether she had been “persuaded” to accuse her uncle because she was “very anxious to leave the Society where [she was] kept”—as he put it, “practically in prison”—and whether NYSPCC officers had coached her testimony.Footnote 151 Some jurors appeared skeptical that detention made children's testimony more trustworthy. In Anna Pollack's case, for instance, a juror asked the NYSPCC officer if the girls, while held as witnesses, were “permitted to mingle with one another” and talk with their parents.Footnote 152 In addition, jurors might be made aware that statutory rape complainants faced the threat of longer incarceration for sexual delinquency if they did not cooperate and testify.Footnote 153 Making sexual abuse allegations left girls in a bind: they incurred the risk of being confined as material witnesses or delinquents, and that very treatment invited suspicions that they fabricated or exaggerated their story in order to satisfy their jailors. Ultimately, although framed as a way to overcome the reliability risks associated with children's testimony, the detention of child witnesses did not remove judges and juries’ concerns.
Conclusion
Unreliable yet indispensable, dangerous yet in need of protection, child witnesses posed a problem for the legitimacy of modern evidence law. By the early twentieth century, courts and lawmakers had turned decisively against the eighteenth-century common law's “system of exclusion.”Footnote 154 If child protection required children's testimony, then the law had to find ways other than categorical exclusion to contain the threat of unreliable evidence. Generally, that meant empowering courts to allow more evidence before the jury, not less. New York exemplified the trend: criminal courts gained discretion to allow children's unsworn testimony, and asserted their authority to compel children to testify for the state. Legal changes helped make children more frequent participants in court, but did not resolve the quandaries surrounding children's testimony.
As New York's story shows, the turn of the twentieth century was a formative period for the modern law governing child witnesses, but it only marked the beginning of a longer, multi-stage transformation in the legal treatment of children's evidence. Recovering this Progressive-Era history has value, though, because it adds a missing chapter, and a layer of complexity, to leading accounts of evidence law modernization. The primary impetus for legal reform, when it came to children's testimony, was not newfound confidence in cross-examination, or in young witnesses’ reliability. Rather, shifts in evidence law and court practice fostered the expansion of state authority to serve the goals of the child protection movement. As new substantive laws created a rising demand for child witnesses, evidence law and criminal procedure adapted to meet the demand. Changes in the law governing children's testimony did not, however, resolve questions about what weight that testimony should carry, or what its costs might be, both for the reliability of trial outcomes, and for the wellbeing of child witnesses. The late twentieth century also saw a “revolution” in the law governing children's testimony, where highly publicized cases of child sexual abuse spurred reforms that made children's evidence, including out-of-court statements, more readily admissible, as well as litigation that tested the constitutionality of such reforms, and a burst of social science research on children as witnesses.Footnote 155 However, contemporary evidence law has still only partially, or selectively, incorporated empirical findings about the reliability risks of children's testimony and how the law can manage those risks.Footnote 156 Looking back to the first wave of reform in the legal treatment of child witnesses, in the late nineteenth century, we observe the beginnings of an enduring dynamic. The policy imperatives of the modern state, more so than a commitment to rational truth-seeking, have powerfully shaped the law governing child witnesses.
The history of children as witnesses also sheds light on the deep and persistent challenge, observed by scholars of children's law to this day, of achieving coherence in the law's construction and treatment of childhood, across different domains.Footnote 157 In the Progressive Era, the issue of children's competency to testify exposed a tension between, on the one hand, new substantive laws that aimed to sharpen the category of legal childhood and bring adolescents within its reach, and, on the other hand, evidentiary rules that figured children more like legal adults. Child protection laws demarcated a special status for children, yet the enforcement of those laws required a system of evidence where children were eligible for adult treatment. Young people called to testify as plaintiffs and prosecution witnesses faced something of a dilemma: the need to display both the maturity sufficient to testify and the markers of immaturity needed to win damages or a conviction, where the charges centered on their youthful status. In addition, the child-savers’ ambition to enforce child protection laws against adults ran into conflict with the goal of shielding children from harm, as it licensed coercive measures like witness detention, and exposed children to traumatic experiences in court. Those dilemmas have not fully disappeared. As the legal history of children's testimony illustrates, multiple areas of law adapted to enable the state to enforce a modern conception of childhood, but at the same time embedded tensions in that category that the law has long struggled to resolve.
Acknowledgements
For helpful conversations and feedback, I wish to express my deep appreciation to Anne Dailey, Chris Gottlieb, Dan Hulsebosch, Elizabeth Katz, John Langbein, Claire Priest, Noah Rosenblum, David Tanenhaus, and John Witt. I am also grateful to participants in the American Society for Legal History Student Research Colloquium and the Family Law Scholars and Teachers Conference. My research was made possible by the help of librarians at the New York State Library and Archives, the NYSPCC Archive, and John Jay College, among others. I would also like to thank the anonymous readers at Law and History Review, Gautham Rao, and the journal's editorial board.
