1. THE NATURE OF TESTIMONY

Testimony is a specific type of speech act and it is often linked to a certain form of intentional agency. Whether children are subject to epistemic injustice depends, in part, on whether they are testifiers. On many accounts of the nature of testimony, very young children (roughly between the ages of 18 months to 6 years) do not count as testifiers. Consider, for instance, Coady's analysis of (natural) testimony (Reference Coady1992).

S testifies by making some statement that p if and only if:

1. N1. S's stating that p is evidence that p and is offered as evidence that p.

2. N2. S has the relevant competence, authority or credentials to state truly that p.

3. N3. S's statement that p is relevant to some disputed or unresolved questions (which may or may not be whether p) and is directed to those who are in need of evidence on the matter.

If this is what is required for someone to testify then very young children cannot be testifiers. To offer something as evidence one must understand the concept of evidence; understand what it means to offer something as a reason for the acceptance of something else. It seems implausible to think that very young children have such an understanding as it would presuppose a fairly robust theory of mind. To understand how one's utterance can be a reason for someone else to believe something seems to require an understanding, at the very least, that other people have beliefs and that their own beliefs can differ from another's. Although the empirical research on childhood cognition continues to evolve, it is generally accepted that prior to the age of four, children do not have a robust understanding of belief. Although young children do intend to communicate it isn't at all clear that they can form intentions to give evidence or that they are aware of the epistemic needs of others. Thus, if we adopt Coady's theory of testimony we would not be able to discuss the possibility of epistemic injustice in young children since on his account they would not count as testifiers at all.Footnote ⁵

What view of testimony, then, will allow us to acknowledge that very young children can be a source of knowledge but at the same time acknowledge that, epistemically, they may not be as developed as adults? We think the most compelling account of testimony, and all the more compelling because it accommodates the child, is that offered by Lackey (Reference Lackey2006). Lackey distinguishes between hearer testimony and speaker testimony and she defines each in terms of acts of communication rather than statements.

Speaker Testimony:

S testifies(t) that p by making an act of communication a if and only if S reasonably intends to convey the information that p (in part) in virtue of a's communicable content.

Speaker testimony captures the sense that on some occasions there is an intention to convey information where there is an understanding of the role one plays as a communicator of such information. This can be distinguished from Coady's view because intending to convey information is different than intending to offer evidence. Speaker testimony, then, captures the agential nature of many of our testimonial exchanges.

In addition, Lackey's conception of hearer testimony is as follows:

Hearer Testimony:

S testifies(h) that p by making an act of communication a if and only if H, S's hearer, reasonably takes a as conveying the information that p (in part) in virtue of a's communicable content.

She thus proposes the following general account of testimony:

T:

S testifies that p by making an act of communication a if and only if (in part) in virtue of a's communicable content, (1) S reasonably intends to convey the information that p, or (2) a is reasonably taken as conveying the information that p.

This disjunctive account of testimony is easily extended to young children. Young children's utterances or acts of communication can, on many occasions, reasonably be taken as conveying information. This is so even when they do not themselves intend to convey the information that p or are unaware that they are doing so. It also makes sense of the fact that when there is a lack of intention to communicate there is also a lack of responsibility attributed to the speaker.

When one reasonably takes an act of communication as conveying the information that p, one views the utterance in a certain light and as having a certain import. One considers the context of utterance and what one knows about the speaker. One treats the utterance as if it was intended to convey information and assesses the reasonableness of such an interpretation. When a child's acts of communication move from hearer testimony to speaker testimony is an empirical question (or from non-testimony to hearer testimony). It is clearly something that happens gradually. But it happens precisely because, from the very beginning, we are treating children as if they are capable of offering testimony. It is worth emphasizing again that we are not claiming all children from birth have the capacity to testify. We don't deny that infants and pre-linguistic children may not meet the conditions of testimony. Hearer testimony requires that acts of communication be taken as conveying information. It is not clear when in the child's development she becomes capable of performing acts of communication and when those acts can be taken as conveying information. Again, this is an empirical question. Our point here is to identify a theory of the nature of testimony that does not, at the outset, exclude some children (roughly children from the age of 18 months to 6 years of age) from the class of testifiers. Having identified the theory of testimony best suited to understand the nature of child testimony, we turn to consider epistemic injustice and its impact on children throughout their lives.

2. TESTIMONIAL INJUSTICE AND CHILDREN

In Epistemic Injustice Fricker describes the central case of testimonial injustice as identity-prejudicial credibility deficit (Fricker Reference Fricker2007: 28). This form of injustice occurs when a person is given less credibility in testimonial exchange due to his/her social identity.Footnote ⁶ Fricker's examples of identity-prejudicial credibility deficit primarily focus on gender and race (with some examples centering on class). The woman, for instance, is given less credibility because of various sexist stereotypes, the African-American given less credibility due to racist stereotypes.Footnote ⁷ In these examples “identity power” – power deployed through “shared imaginative conceptions of social identity” (Fricker Reference Fricker2007: 14) – is exercised over a person such that s/he is regarded as epistemically deficient and discredited as a testifier.

Although prejudice can harm the hearer and the epistemic community by preventing them from acquiring knowledge, a primary harm is done to the speaker who is subject to this form of epistemic injustice. Those who suffer identity-prejudicial credibility deficit are wronged in their capacity as knowers and, thus, made to feel less human. As Fricker writes:

This primary harm of epistemic justice can lead to secondary practical and epistemic harms (Fricker Reference Fricker2007: 46). For one, think of the potential practical consequences of testimonial injustice in a courtroom. Not being listened to in this context can have dire practical consequences, such as unjust imprisonment or even death. Further, testimonial injustice against a speaker can have a “self-fulfilling power” (Fricker Reference Fricker2007: 55). If subjects are systematically denied a voice they can lose confidence in themselves and their own beliefs such that they cease to be credible testifiers and come to confirm prejudicial stereotypes. To be subjected to systematic testimonial injustice is thus an epistemic harm that cuts one to her very core, hindering the development of epistemic virtues and intellectual self-confidence that are central to one's identity as a reliable testifier.

There is much more to say about Fricker's theory, the forms of epistemic injustice she identifies, and the negative affects of these forms of injustice on persons and we will return to some of these points below. What we want to consider at this point is whether children, as a class, are subject to prejudice and the kind of epistemic injustice that Fricker identifies. To motivate and make the issue of testimonial injustice against children more vivid, we want to begin with a passage from A Circle of Quiet, the autobiography of Madeleine L'Engle. In this passage L'Engle is describing an unfortunate event from her childhood:

We contend that L’ Engle's account is representative of a widespread experience for children; namely, adults frequently subject children to identity power and negative identity-prejudicial treatment. In 1975 Chester Pierce and Gail Allen introduced the term childism to capture the prejudicial nature of adult–child relations. Childism – or “the automatic presumption of superiority of any adult over any child” (Pierce and Allen Reference Pierce and Allen1975: 15) – is described as follows:

Pierce and Allen provide a helpful entry point for understanding prejudice against children but they underestimate the extent to which adults do, in fact, subject children to “gross brutalization.” This is evident in the staggering rates of child maltreatment and adult physical, emotional, sexual, and psychological abuse of children (Gilbert et al. Reference Gilbert, Spatz Widom, Browne, Ferguson, Webb and Janson2009: 68–9). Given the continuing problems of child abuse and discrimination it is important to acknowledge that children – like women, African-Americans, and other populations subjected to prejudicial treatment – can be seen as a target group. That is, children, as a class, are subject to prejudicial treatment based on “share[d] characteristics and conditions that those prejudiced against them seize on and distort for their own purposes” (Young-Bruehl Reference Young-Bruehl2012: 19). Children, too, have a social identity that can be accessed via the “social imagination” (Fricker Reference Fricker2007: 38), an identity that crystallizes in common conceptions of children as “deficient,” “incapable,” or “incomplete” in relation to the adult (Prout and James Reference Prout and James1990: 10–11; Webb Reference Webb2004: 806). Given the child's lack of social power and standing she is rarely in a position to challenge these conceptions and the deficit model of childhood that provides them with support. Thus, it is possible for prejudicial stereotypes of children as overly emotive, irrational, and incompetent to color the credibility judgments that adults make when assessing their testimony. Recent empirical research supports this possibility, documenting the presence of implicit negative attitudes in adults towards children as “animalistic” and as lacking “uniquely human traits” (Loughnan and Haslem Reference Loughnan and Haslam2007: 117).Footnote ⁸

It is not difficult to imagine the potential impact of prejudicial stereotypes on the child's epistemic development and sense of self. Fricker contends that the recipient of testimonial injustice – particularly in cases in which the injustice is persistent and systematic – “may lose confidence in her general intellectual abilities to such an extent that she is genuinely hindered in her educational or other intellectual development” (Reference Fricker2007: 48). Prejudices that inform acts of testimonial injustice may have a “self-fulfilling power” such that the victim is constituted as a prejudicial stereotype depicts her and ultimately caused to resemble the prejudicial stereotype (Reference Fricker2007: 55). However, in Epistemic Injustice Fricker primarily focuses on adult perpetrators and victims of testimonial injustice. She devotes little attention to the impact of testimonial injustice on children and, so, we gain little insight from her on the significance of adult expectations, projections, and prejudicial stereotypes for the epistemic development of young children. But there is a substantial body of social psychological literature that does just this, demonstrating that children are well aware of the appraisals and expectations of others (parents, teachers, and peers) and, further, that these appraisals and expectations influence children's self-perceptions in numerous domains of competence (Cole Reference Cole1991; Cole et al. Reference Cole, Martin and Powers1997, Reference Cole, Jacquez and Maschman2001). In a series of studies with school children, David Cole examined the degree to which significant others’ evaluations correlate with and predict changes in children's self-perceived competence (Cole Reference Cole1991; Cole et al. Reference Cole, Jacquez and Maschman2001). Cole's studies demonstrate that “children construct views of their own competences out of others’ appraisals of their performances” (Cole et al. Reference Cole, Jacquez and Maschman2001: 391). Central to developmental models of self-perceived competence, then, is that interpersonal feedback has a significant impact on children's self-perceived competence and, in general, their negative or positive self-appraisals (as competent or incompetent) (Cole Reference Cole1991: 682; Cole et al. Reference Cole, Jacquez and Maschman2001: 377).Footnote ⁹

At this point one might raise an objection to our extension of Fricker's theory to children. Childhood, one might argue, is not a social identity. Rather, childhood is a biological stage of human development. Without doubt, there are basic biological elements of childhood. Children are biologically immature persons who possess developmental traits that are distinct from those classified as adults. Young children are pre-pubescent and undergo forms of physical growth (height changes, for example) and forms of brain development that cease in adulthood. But while biological immaturity is a fact of childhood the significance of these facts and the meaning attributed to them varies greatly across history and culture. What it means to be a child is determined in diverse ways by cultural and historical interpretations of the child's biological immaturity. In this sense the concept of “child” (and the concept of “adult”) is as much socially constructed as it is biological and comprises a social identity. The social identity of the child marks out, among other things, what forms of action are appropriate for those classified as children (e.g., participation in mandatory schooling as opposed to the adult world of work), appropriate areas of knowledge for children (e.g., whether children should be included in discussions pertaining to sex and death), and the conditions of a “good” childhood. None of these aspects of childhood is a matter of biological determination; rather, they highlight cultural and historical interpretations of what it means to be a child, interpretations which ultimately reveal a multiplicity of childhoods in our world (Jenks Reference Jenks2005: 30; Prout Reference Prout2005, 14).Footnote ¹⁰

3. CHILDREN, TESTIMONY, AND FORENSIC CONTEXTS

Following our initial discussion of testimonial injustice and childism we will now turn to a context in which adult prejudice toward children (and its detrimental impact on child testifiers) is well documented. Prejudicial stereotypes of children as especially suggestible, untrustworthy and incompetent are evident in legal discourse regarding the formal testimony of the child.

Indeed, legal writers have tended to put the child in the same category as the mentally deranged or drug addicted:

Here is a passage from the 1984 text Evidence: Cases and Materials:

Despite a growing body of empirical evidence that suggests that children (by the age of six) are as accurate as adults in recalling events and no more suggestible than adults when those memories are questioned in appropriate ways (Melton Reference Melton1981: 76, 80, 82; Leippe & Romanczyk Reference Leippe and Romanczyk1989: 104; Pipe et al. Reference Pipe, Lamb, Yael Orbach and Esplin2004; Oates Reference Oates2007: 844), legal discourse continues to present the child as essentially irrational and unable to offer reliable testimony (Brainerd and Reyna Reference Brainerd and Reyna2012: 227). Here we see clear examples of negative prejudicial stereotypes informing conceptions of children as unreliable testifiers. As Leippe and Romancyzk note, “the evidence for a negative stereotype of young eyewitnesses seems quite strong … people see children as somewhat untrustworthy (i.e., suggestible) and inexpert (i.e., poor at remembering specific details)” (Leippe and Romancyzk Reference Leippe and Romanczyk1989: 111).

Numerous studies have shown that these prejudicial stereotypes inform adult perceptions of child testifiers. Goodman et al. (Reference Goodman, Golding and Haith1984, Reference Goodman, Golding, Helgeson, Haith and Michelli1987) conducted a study in which groups of adults were provided with both written and filmed testimony of children (6 and 10 years of age) and adults (30 years of age) regarding cases of vehicular homicide and murder. In each case the eyewitness testimony was identical and all details of the trial were exactly the same with one exception: the age of the eyewitness. The studies showed that adult potential jurors consistently rated child testifiers as less credible than adult testifiers, especially so in the case of 6 year olds. Commenting on their findings, Goodman et al. write:

Yarmey and Jones (Reference Yarmey, Jones, Lloyd-Bostock and Clifford1983) found similar results in their studies of legal and cultural stereotypes of child testifiers. Several groups of people (including potential jurors, psychologists, legal professionals, and college students) were asked to give their opinion of how an 8-year-old child would perform as a witness in a legal case. Less than 50% in any of the groups felt that the child would respond accurately when questioned. 91% of the psychologists and 69% of the potential jurors also felt that child witnesses would be overly suggestible and, thus, unreliable witnesses (Yarmey and Jones Reference Yarmey, Jones, Lloyd-Bostock and Clifford1983: 33, 35).

Numerous factors lead to the perception of children as deficient testifiers. For example, in the courtroom environment (a highly stressful environment for many young children) the child's nonverbal behavior – fidgeting, lack of confidence, posture – can influence perceptions of her credibility (Goodman et al. Reference Goodman, Golding and Haith1984: 146–8, 153; Oates Reference Oates2007: 844). Attorneys’ tactics during direct- and cross-examination, such as the use of complex grammatical forms or aggressive questioning, can confuse and intimidate child witnesses (Goodman et al. Reference Goodman, Golding and Haith1984: 146–8). But in addition to these factors researchers have concluded that negative stereotypes of children as overly suggestible, incapable of distinguishing fantasy from reality, and lacking memorial abilities play a significant role in children's general lack of credibility as testifiers (Leippe and Romanczyk Reference Leippe and Romanczyk1989: 106–7; Newcombe and Bransgrove Reference Newcombe and Bransgrove2007: 319). The harm of this child-centered prejudice is at least two-fold: first, in some cases (for example, child abuse and neglect) the child may be the only witness outside of the accused and, thus, the outcome will hinge in large part on her credibility and testimony. Discrediting the child testifier for prejudicial reasons can lead to a failure of justice and leave children even more vulnerable to acts of adult violence and abuse. Second, following Fricker, we must be wary of the “self-fulfilling power” of stereotypes. The child testifier continually regarded as unreliable, overly suggestible, and incompetent, may come to resemble these negative stereotypes and cease to be a reliable testifier.

At this point one might acknowledge that the child is subjected to prejudice and testimonial injustice but still insist that, at least in the epistemic realm, the child's credibility deficiency is still warranted. While revealing prejudice against children, the argument might go, we are at the same time crediting the child with too much epistemic power and reliability as a testifier. There are two factors to take into account when assessing the reliability of a testifier: competence and sincerity. We want to set aside the question of whether children are sincere. We think the question is not a good one and is no more easily answered than the question of whether adults are sincere. Like adults, some children may have reasons to lie in some contexts and may have difficulty telling the truth in some contexts. But there is no empirical evidence that children, as a class, are more deceptive than adults.

It is true that children (particularly very young children) will lack competency about a range of things for which they have no knowledge or experience. But very young children are also likely to have access to information that adults do not in a variety of domains (for example, in cases of abuse) and their first person accounts of their lives and their interactions with others are sometimes all we have to go on. The fact that we do not rely on children to tell us about the stock market, for example, does not mean that we do not rely on them for a variety of other information, or that we shouldn't rely on them for a variety of other knowledge. That is to say, acknowledging that children have particular domains of competence as testifiers does not commit us to crediting the child with too much epistemic power. The important question is whether, given a relevant domain of competence, children can be reliable testifiers.

Research in the domain of formal testimony is once again instructive. Prior to the 1980s there was virtually no research on children's competency to testify or their reliability as witnesses. It was only after several high profile cases of child abuse in the late 1970s and early 1980s that focus on a child's ability to offer reliable testimony, particularly to recount accurately traumatic events, was studied in any great detail (Ceci and Bruck Reference Ceci and Bruck1993). These high profile cases involved credible allegations made by children of torture and sexual abuse, as well as fabulous claims of cannibalism and murder. When one looks at the details of these cases it becomes clear that, when inaccuracies did arise, the issue was not with the basic competency of child testifiers, but rather, with the interviewing methods used to solicit the testimony. Adult investigators did not listen to child testifiers very well and instead created an “atmosphere of accusation” for children by consistently using incriminating language to describe the adults under investigation (Ceci and Bruck Reference Ceci and Bruck1993: 405). In a variety of ways, the suggestions and incriminating language of investigators negatively impacted the ability of children to offer reliable testimony. Largely in response to the controversies surrounding these cases, researchers have made considerable effort to understand how to avoid compromising or contaminating a child's testimony, leading to recent protocols for forensic investigators to follow when interviewing children (discussed below). There are several factors that can lead to limitations in the completeness and accuracy of what children recall. These factors include difficulties in organizing narrative accounts; lack of long-term memory retrieval strategies; susceptibility to interviewer suggestions; and lack of understanding of what information is important to recall (especially in the forensic context children do not always understand what information is relevant to police and legal investigations). Linguistic and conceptual limitations in early childhood can also result in inaccurate testimony. However, despite these factors, children as young as two years of age have been shown to accurately recall details of past events (Ceci and Bruck Reference Ceci and Bruck1994; Fivush and Schwarzmueller Reference Fivush and Schwarzmueller1995) and recent work on aiding young children's retrieval and narrative strategies has proven effective in improving young children's recall (Saywitz and Snyder Reference Saywitz, Snyder, Goodman and Bottoms1993; Nathanson and Saywitz Reference Saywitz, Snyder, Goodman and Bottoms2003). Interviewing tactics have been highlighted as particularly important factors in assisting or hindering the reliability of a young child's testimony. Current research suggests that communication failures and suggestibility in children may actually reflect the interviewing techniques used by adults to elicit their testimony (Saywitz and Snyder Reference Saywitz, Snyder, Goodman and Bottoms1993; Saywitz and Camparo Reference Saywitz, Snyder and Camparo1998) rather than a lack of developmental ability in children. In order to best support the child testifier interview questions need to be phrased in a language accessible to young children, the length and extent of questioning needs to be limited, questioning needs to occur within a relatively short time frame after the events being investigated, and leading questions should be avoided (Ceci and Bruck Reference Ceci and Bruck1994; Oates Reference Oates2007). Young children do possess the memory skills needed to describe events accurately, but these skills are best utilized in response to simple open-ended questions in a supportive atmosphere. Further, environmental factors contribute to the reliability of child testimony. Nathanson and Saywitz (Reference Nathanson and Saywitz2003), for example, found that children interviewed in an informal setting, as opposed to a courtroom, offered more accurate accounts of past events. Children exhibited erratic heart rate patterns, indicative of a stress response, in the courtroom setting and were significantly calmer in an informal setting (Nathanson and Saywitz Reference Nathanson and Saywitz2003).

In sum, research from the forensic context shows that there are pervasive prejudicial stereotypes at play that influence whether a child is given credibility. The forensic context offers a concrete example of a discursive space in which the child is subject to testimonial injustice.Footnote ¹² Prejudicial stereotypes and related testimonial injustice against children can be present in every aspect of the forensic context, including cross-examination in the courtroom as well as pre-trial and investigative interviews with police and social services. But the research we point to shows that by a young age children are capable of offering reliable testimony. Children can be competent testifiers and have not been shown to be more suggestible than adults in testimonial interactions. Perhaps more importantly, the research also demonstrates that adults have a large role to play in helping the young child to be a competent and reliable witness. Thus, when it comes to evaluating the competency and reliability of child testifiers we should also consider the epistemic responsibility of the adult.

4. RESPONSIBLE HEARING, ACTIVE LISTENING, AND RECOGNITION

Thus far we have argued that children are subject to prejudicial stereotypes and, further, that these stereotypes and related treatment by the adult have a significant impact on the child's ability to offer reliable testimony. Although we primarily appeal to the forensic context in developing our argument it is by no means the only context in which children are subject to epistemic appraisal. Negative prejudicial stereotypes at play in the forensic context can also be prevalent in the context of everyday adult-child exchanges. These stereotypes and related forms of treatment wrong the child as a knower and provide her with less epistemic credibility than she deserves. We will now turn to consider ways in which adults can ameliorate testimonial injustice in their interactions with children.

As a response to epistemic injustice Fricker develops an account of “responsible” or “virtuous” hearing (Reference Fricker2007: 66, 76). Fricker argues that prejudicial stereotypes are embedded in the fabric of the social imagination and, thus, hearers must exercise a “critical awareness” regarding identity prejudices that can (or do) inform their credibility judgments of speakers (Reference Fricker2007: 89). The responsible hearer must “neutralize” or “correct for” the influence of these prejudices as she perceives speakers and evaluates their competence and sincerity as testifiers (Reference Fricker2007: 89, 92). The responsible hearer must also take into account his/her own social identity:

It is true that we are all gendered and raced in our testimonial exchanges and there are distinct prejudices that target these social identities and negatively impact raced and gendered individuals in testimonial exchange. But, in addition to being gendered and raced, everyone also has an age and a social identity as an adult or child. In this paper we have been attempting to show that this form of social identity is also a significant factor in epistemic credibility judgments. What is more, we have argued that those classified as children are routinely subjected to the identity power of adults and, in turn, identity-prejudicial credibility deficit qua children.Footnote ¹³ Given this state of affairs and the prevalence of adult-child testimonial exchange we should devote more thought to avoiding testimonial injustice in our interactions with children. We should think more about how to be responsible hearers for children, just as Fricker contends we must do in the case of other social groups that have been subjected to systematic discrimination.Footnote ¹⁴

As gestured toward above, an important step in this direction includes paying greater attention to the role and responsibilities of the adult in providing the child with the opportunity to be a testifier. That is, we need to develop a relational conception of child testimonial agency that includes the adult and her ability to create conditions for the child to be heard. We've already seen this exhibited in the forensic context in which interviewing tactics are a significant factor in eliciting reliable child testimony. As a step toward developing a broader account of relational testimony, let us turn our attention to the concept and practice of active listening.

The concept of active listening is already well established in educational contexts where teachers strive to understand and communicate with young children (Cousins Reference Cousins1999; Delfos Reference Delfos2001). In speaking of active listening, we are thinking of more than simply turning an ear toward a speaker. Hearing is an inactive, involuntary process. By contrast, active listening is a skill, an activity that must be learned and that can be performed well or poorly. Active listening is fundamental to communication; it is a condition of possibility for a speaker to be heard and, thus, as fundamental to communication as the act of speaking (although it is the latter skill that receives the vast majority of attention both in theories of testimonial exchange and communication more generally). When performed well active listening is generative in nature – it contributes to the development of a potential speaker's voice and creates the conditions for a child to speak and be heard.

In order to advance and concretize our account of this skill, its impact on the child's ability to offer reliable testimony, and the significance of adopting a relational account of testimony more generally, we will now turn to a few examples of active listening. In The Moral Life of Children (Reference Coles1986) and Children of Crisis (Reference Coles2003), the child psychiatrist Robert Coles comments on common conceptions of children as deficient persons, as lacking agency and, with it, authentic moral, social, and epistemic concerns. But as he spent time talking with and listening to children – over the course of decades of psychological and sociological fieldwork – Coles made an important methodological departure from his tradition. Rather than attempt to measure children's agency on the basis of adult-centered interviews (asking children pre-set questions and evaluating the child's developmental status on the basis of her/his answers), Coles chose to develop communication with children from the foundation of their own interests, concerns, and everyday experiences. To access the young child's world Coles developed an active listening technique – he asked children to paint and draw pictures of their school, their family and friends, themselves, and, in general, anything they wanted to draw. Coles writes:

Through these and related exercises Coles was able to create a space for and listen to young children's interests and concerns. These young children were given an opportunity to speak, to form a voice in relation to an actively listening adult. In this case, actively listening to the child involved moving away from adult-centered forms of communication; it involved using creative and imaginative techniques (such as drawing, painting, playing games, etc.) to meet the child on her own terms. In effect, the actively listening adult (in this case, Coles) creates relational conditions for the child to exercise her testimonial agency and, thus, to be a testifier.

As a second example of active listening and relational testimony we can turn to Myra Bluebond-Langner's work with terminally ill children (18 months to 14 years of age). In The Private Worlds of Dying Children (Reference Bluebond-Langner1978) Bluebond-Langner frames her work as an attempt to communicate with leukemic children in a hospital setting and to discover how “terminally ill children come to know that they are dying when no one tells them, and how they conceal this knowledge from their parents and medical staff” (Reference Bluebond-Langner1978: ix). In the course of her fieldwork Bluebond-Langner notes that she was repeatedly struck by the failure of adults to recognize children as knowers, as persons who already do know a great deal about their condition:

Beyond traditional forms of epistemic prejudice against children, the adult's lack of communication with children in the hospital setting was based on canonical research that supported conceptions of children as passive, unknowing, and lacking the capacity for understanding themselves and their world:

For our purposes it is important to note that Bluebond-Langner rejected these assumptions about children, assumptions that she believes reveal a “failure to respect children and their world” (Reference Bluebond-Langner1978: 5). Instead, in order to hear children and elicit their testimony she deployed active listening techniques – playing games, drawing pictures, and, in general, letting the child take a leading role in determining the activity and course of communication. These practices acknowledged children as knowers and engaged children in a “context of awareness” within which they could communicate their experiences, their hopes, fears, and the reality of their prognosis (Reference Bluebond-Langner1978: 198). By using active listening techniques Bluebond-Langner was able hear and, in turn, learn a great deal from these children about their understanding of their condition, death, relationships, and many other things.

These examples of active listening to the voices of children are not exhaustive; rather, they should be viewed as models for communicative practices that reconsider the epistemic capabilities of children and help to mitigate testimonial injustice against children.Footnote ¹⁵ At this point it might be objected that active listening, though useful in adult-child testimonial exchanges in informal or pre-trial contexts, is not adaptable for use in the formal courtroom setting.Footnote ¹⁶ If so, the objection will go, active listening techniques cannot counter testimonial injustice faced by children on the witness stand. Specifically, it is not clear how active listening and child-appropriate questioning can work in tandem with courtroom practices such as cross-examination of the child witness.

In response, we point to numerous examples of active listening techniques already implemented in many, but sadly not all, courtrooms for the specific purpose of hearing and facilitating non-prejudicial evaluation of child testimony by jurors and legal professionals. These examples demonstrate that active listening techniques can make valuable additions to adult-child communication in both informal and formal courtroom contexts and, in turn, potentially reduce (though not eradicate) the impacts of epistemic injustice.

First, in the U.S. legal system trial judges have considerable autonomy in determining the manner in which witness testimony and evidence is presented in court (Myers et al. Reference Myers, Saywitz and Goodman1996). In the case of young children trial judges commonly take extra measures to avoid compounding the trauma children have experienced as abuse victims, namely, by ensuring that child testifiers are not subject to excessive anxiety and that they understand the language and procedures of the court. Proactive measures taken by trial judges include the limited use of closed-circuit television in courtrooms (so that children need not face an abuser face to face while testifying), having children testify while sitting at a child-sized table and chair with the judge, attorneys, and a support person present (a parent or appointed guardian), and allowing the child to bring a “comfort item” with her to court. In addition, judges can prescribe specific rules for attorneys to observe during their cross-examination of child witnesses including the use of developmentally appropriate language and terms, questioning from a single, neutral location at prescribed times (so as not to interfere with a young child's sleep patterns), and prohibiting attorneys from raising their voices or otherwise intimidating child witnesses on the stand. Because judges have considerable autonomy, however, the extent to which these practices are implemented vary widely.

Second, in order to familiarize children with the roles of the judge, attorneys, and legal process more generally, pre-trial programs such as “Kid's Court” are used, involving a mock trial and role playing in a supportive environment (Myers et al. Reference Myers, Saywitz and Goodman1996: 66). This and related programs familiarize the child with the court process, its purposes, and potential outcomes, thereby reducing anxiety and increasing the ability of the child to offer credible testimony to jurors. None of these processes fully ensures that the child will not be subject to testimonial injustice or negative prejudicial evaluations during trial. Indeed, we have cited extensive research that reveals the depth of negative prejudicial attitudes of laypeople and legal professionals alike toward children and their testimony. However, when implemented, these courtroom methods do account for the special needs of children in courtroom contexts, the importance of child-centered and active listening practices for allowing the child to offer credible testimony, and, further, the relational role of adult legal professionals in creating conditions for the child to be heard. In doing so, they provide better opportunities for children to testify about their experiences in court as well as the increased possibility for fair evaluation of this testimony. Finally, as previously noted, the forensic context extends well beyond the courtroom. Social workers, police officers, investigators, lawyers, and judges interact with child victims and witnesses at various stages of the legal process prior to the child taking the witness stand. The process of soliciting a child's testimony begins with interviews with police, forensic psychologists, and social services and it is particularly important for active listening to occur in these pre-trial contexts. As noted above, the controversial day care abuse cases of the 1980s involved investigators that did not listen to child testifiers very well, instead using leading questions and creating an “atmosphere of accusation” (Ceci and Bruck Reference Ceci and Bruck1993: 405). By the time these children got to the witness stand (or by the time their testimony was offered as hearsay) significant influence over and damage to their testimony was already done. Largely in response to the controversies surrounding these cases and the continuing proliferation of child abuse prosecutions, researchers have made considerable effort to understand how to avoid compromising or contaminating a child's testimony, leading to child-centered and developmentally appropriate protocols for forensic investigators to follow when interviewing children (Saywitz and Camparo Reference Saywitz, Snyder and Camparo1998). Active listening techniques – ranging from phrasing questions in accessible language and avoiding leading questions to creating an atmosphere that is comforting for children and in which they can speak freely – are already integrated into these protocols and can be fruitfully extended to the courtroom context as discussed above.Footnote ¹⁷

It is common for philosophers (and adults more generally) to understand the development of children's abilities and competences (or lack thereof) in exclusively biological terms. The child's ability or lack of ability in a domain of activity is explained by reference to capacities internal to the child. The child simply does or does not possess a given capacity (and the related ability to actualize the capacity) due to her stage of development (a biological understanding of capacities, akin to the development of puberty). But this understanding of the capacities and related abilities of children overlooks the social aspects of development and their relevance for child development. The ability to offer testimony – and the capacities that ground this ability – does not develop in isolation. This ability does not simply emerge within all children at a set age or stage of development, but rather, develops to a greater or lesser degree in relation to children's experiences of the world and the felt appraisals of significant others. Without doubt, the child's biological development is an important factor in her ability to exercise any form of agency, but this is only part of the story. The child's ability to be a testifier and offer testimony to others is equally dependent on the regard and related treatment and experiences she receives from significant others in her life (as, for example, current evidence from the social sciences, forensic contexts and the work of Coles and Bluebond-Langner clearly shows). For this reason we must pay greater attention to the relational aspects of child development and look to the experiences and forms of regard that enhance or hinder it.

We contend that the development of testimonial agency and epistemic agency more broadly is no different. This ability to testify – like other forms of action – is not developed in isolation or ex nihilo. Rather, the child's epistemic agency and, in turn, her ability to offer reliable speaker testimony is developed in relation to her encounters with others, especially in her encounters with the important adult figures in her life. In large part, the child develops an identity as a reliable (speaker) testifier (or fails to do so) in virtue of her treatment by the adult. When a child is offered recognition as a knower by the adult and approached through active listening she is, in most cases, capable of telling the adult a great deal and, further, she can develop forms of self-regard – self-confidence, self-esteem, self-respect – that are essential to agency.Footnote ¹⁸ The child regarded as a testifier by others – and, in particular, by adults who have an important role in the child's life – is given the opportunity to regard herself as a testifier, as a person who possesses a voice worthy of the attention of others. Conversely, when the child is rejected as a testifier outright due to prejudice or subjected to developmentally inappropriate forms of communication, the adult will hear nothing and the child will struggle to “speak.” The key here, then, is to move away from an over-reliance on individualistic, capacities-based conceptions of agency, to pay greater heed to the relational aspects of agency and, in turn, to take seriously the adult's responsibilities and ability to listen along with the child's ability to speak. In large part, the child develops an identity as a reliable (speaker) testifier (or fails to do so) in virtue of her treatment by the adult.