Witnesses for the State: Children and the Making of Modern Evidence Law

Abstract

This article identifies an overlooked legacy of the child protection movement in the late-nineteenth and early-twentieth-century U.S.: transformations in evidence law and procedure that undermined common-law restrictions on children's testimony. Scholarship on the nineteenth-century modernization of evidence law argues that the rise of cross-examination allowed for the demise of common-law witness disqualification rules. The erosion of restrictions on children's testimony, however, requires an alternative or additional explanation, because cross-examination did not allay fears about children's reliability. The driving force for changes in the law governing child witnesses, I argue, was the slate of nineteenth-century child protection laws whose enforcement typically required children's testimony. The case study of Progressive-Era New York, presented here, reveals how evidence law and procedure adapted to substantive law's demand for children's evidence: reformers legislated an exception to the common-law oath requirement in children's cases, pushed trial courts to modernize their approach to examining child witnesses’ competency, and expanded the state's power to detain children as material witnesses. Those reforms fostered the ends of law enforcement, but did not resolve enduring debates about the reliability risks of children's testimony and the costs of testifying for children's wellbeing.