11. The Child as a Witness
To provide trustworthy evidence to courts, the legal system requires that all witnesses who testify in court must be competent. Some States impose a specific age requirement for child witnesses. Under Federal law and in many States, all witnesses, even young children, are presumed competent to testify. The test for competency requires that the witnesses have sufficient intelligence, understanding, and ability to observe in order to recall and communicate information, comprehend the seriousness of taking an oath, and appreciate the necessity of telling the truth. When the witness is a child, the judge or attorneys may question the child in what is known as a voir dire process. The purpose of this process is to ascertain that the child:
- knows the difference between truth and lies;
- is prepared to testify truthfully; and
- is capable of observing, remembering, and verbally describing events.
Once the judge has determined the child's competency, that child may testify regardless of his/her age.
Recent research has indicated that even very young children may have the memory skills needed to testify.82 Children as young as 3 or 4 years of age have been able to recall past experiences and articulate them.83 However, a child may have trouble recalling events spontaneously and may need some cuing of his/her memory. This is sometimes done, both in court and during out-of-court interviews with the child, with leading questions. While the propriety of using such questions with children is highly controversial, the Supreme Court, in the Wright84 case, has recognized the need for using leading questions when interviewing child abuse victims in some cases. The Court held that a child's response to a leading question in an interview should not be considered unreliable automatically; rather, all of the circumstances surrounding the child's statement should be taken into account.
Judicial Authority to Make a Child Witness More Comfortable in the Courtroom
A child (particularly one who has been the victim of maltreatment or who must testify against a family member or friend) may become anxious, upset, or afraid when testifying in court, especially in the presence of his/her abuser. Accordingly, judges have the authority to take steps to assist the child witness through the process. The child may feel more comfortable if the courtroom itself looks less formal and imposing. For example, providing the witness with a child-size chair, rearranging the furniture, or hanging the child's drawings on the wall may put the child at ease. Having the judge wear street clothes instead of robes may also help the child feel more relaxed. Before trial, the judge may also want to introduce him/herself to the child and allow the child to explore the courtroom, sit in the witness chair, and try out the microphone. Judges have more latitude to take these or similar steps in civil cases than in criminal cases.
Sequestration of Witnesses
Witnesses are usually required to stay out of the courtroom when they are not testifying. The purpose of this rule is to prevent witnesses from changing their testimony based on what they hear from other witnesses on the stand. In cases involving children, this rule of sequestration may be relaxed. A young witness may need the presence of some familiar person to make the child feel more comfortable when testifying. Without the support of such a person, the foreign and often confusing experience of testifying in court may become terrifying. This may make the child virtually unable to communicate and may actually injure the child emotionally as well. Thus, some States give judges the authority to allow a parent or therapist to remain in the courtroom during the child's testimony, even though he/she will also be called as a witness.
Special Legislative Provisions for the Protection of Child Witnesses
Many States have passed special laws to protect child witnesses in the courtroom. Most of these laws have focused on the problem of requiring a child victim to testify in his/her abuser's presence. At least in criminal cases, the alleged abuser has a constitutional right to confront his/her accuser (the child) under the sixth amendment. When this protection was included in the Bill of Rights, the assumption probably was that most defendants would be confronting complainants of equal capacity. It is doubtful that our constitutional founders envisioned situations in which children would be testifying against adults, particularly instances in which the adults would have a history of power and control over the children.
Because of the perception that there is an unequal balance of power in the courtroom, measures have been instituted that are meant to alter that balance and generally protect children from the direct and indirect pressures of adults who may have abused them. These include the following:
- Allowing someone else to testify on the child's behalf. This is the tender years exception, noted previously, and generally allowable only in civil cases and when the judge has made a finding related to the child's incapacity to testify in the presence of the offender.
- Having the child testify through closed-circuit television.
- Using a videotaped deposition of the child in lieu of court testimony.
- Having the child speak to the judge in chambers.
- Having a screen placed between the child and the offender.
- Having a support person. This person may be allowed to be in the courtroom with the child or the child may testify while sitting on the support person's lap.
There are also provisions allowing such aids to testimony as anatomically explicit dolls.
The availability of these special measures varies depending upon State statutes, the kind of litigation involved (criminal proceedings generally being less likely to permit these provisions), the stage of the court process (child witness protections being more likely to be allowed at preliminary hearings), and the judge's ruling, since the use of many of these protections is at the judge's discretion.
Some other legislative reforms for child witnesses include the following:
- relaxation of courtroom formalities, for example, not wearing judicial robes;
- alteration of the courtroom environment, for example, not requiring the child to testify from the witness stand;
- recesses during the child's testimony to avoid unnecessary strain on the child; and
- the exclusion of the media and the public from the courtroom during the child's testimony. (In criminal cases, this reform may conflict with the accused's right to confrontation and with the press' and public's first amendment rights.)85
Constitutional Challenges to Special Treatment for Child Witnesses
Legislative and judicial efforts to ease the anxiety of child witnesses have often been considered unconstitutional or simply unfair by those who are accused of, and must defend against, allegations of child maltreatment. These efforts have been challenged because they may appear to violate the alleged offender's right to confront and cross-examine witnesses. (See "Right To Confrontation and Cross-Examination.")
In the Craig86 case, the Supreme Court recently approved Maryland's one-way, closed-circuit television procedure for taking the testimony of a child abuse victim. This procedure permitted the defendant's lawyer to be present and to cross-examine the child and provided for electronic communication between lawyer and defendant. The Court based its decision on its finding that the statute's closed-circuit television procedure had built-in safeguards for ensuring the testimony's reliability (e.g., by cross-examination), and that the statute required a showing of necessity before the special procedure could be used. For such a procedure to be necessary and thus not violate the confrontation clause, it can only be used after it is shown that:
- the procedure is necessary to protect the welfare of that particular child;
- the child would be traumatized by the defendant's presence during his/her testimony (not merely by the courtroom experience); and
- the level of the child's emotional distress from testifying in the defendant's presence would be significant (i.e., more than just nervousness, excitement, or reluctance to testify). When a child's hearsay statement is used in court under a special statutory hearsay exception, the accused abuser is also denied the opportunity to confront the child victim face-to-face. However, the admission of a child's hearsay statement will not be unconstitutional as long as the judge finds it to be especially reliable. Specifically, reliability of a hearsay statement will be evaluated based on all of the circumstances surrounding the making of that statement. The Supreme Court rejected the notion that any one factor or test makes a statement untrustworthy. For example, in the Wright case, the fact that the child's statements were elicited by leading questions and that the interviewer failed to videotape the interview, did not automatically invalidate the statements. The Supreme Court took all of the circumstances surrounding the child's statements into account in determining whether the hearsay violated the confrontation clause.
Others have argued that special procedures for child testimony violate the accused's right to a public trial and to attend criminal trials, since both closed-circuit television testimony and videotaped testimony are conducted in private, outside the presence of the accused and sometimes his/her lawyer.
Leading Questions, Anatomical Dolls, and Other Aids to Securing Child Testimony
As previously described, many courts relax the normally strict courtroom procedures when a child testifies. Leading questions are sometimes permitted on direct examination to encourage full disclosure by the child. The use of anatomically detailed dolls may also be allowed to improve the child's ability to communicate on the stand, particularly with very young children whose language skills are limited.87
Children as Witnesses in Sexual Abuse Cases
Special protections for child witnesses may be particularly necessary in cases involving child sexual abuse. A characteristic that differentiates sexual abuse litigation from legal proceedings in other types of maltreatment is the central role played by the victim witness. In physical abuse, the legal case usually turns to physical evidence and medical testimony. In neglect, observations of the child, her/his environment, and circumstances related to child care will be fundamental to proving the case. However, sexual abuse is a private act, usually witnessed only by the victim and the offender. Furthermore, there is physical evidence in only a small proportion of cases. As a consequence, the burden of proving the case usually falls on the victim; the child's assertions are the primary basis for proving the case.
Preparing the Child to Testify
Children, like adults, need help in presenting themselves persuasively in court. Victim-witness advocates perform this role, but in communities without such services or in situations not handled by the advocates, others may also perform this need. These may be police officers, CPS caseworkers, or therapists.
There are three parts to the process:
- familiarizing the child with the setting;
- familiarizing the child with the court process; and
- refreshing the child's recollection.
If possible, take the child to the courtroom so he/she can become familiar and hopefully comfortable there. Point to where all the relevant parties will be sitting, including the alleged offender; have the child sit in the witness box; and introduce the child to the judge. If this is not possible, a set of Projective Story Telling Cards,88 can be used which depicts scenes related to testimony in court. Alternatively, the professional can draw a picture or pictures of the court with the child's assistance and label aspects of the courtroom and players. The picture(s) can be given to the child to take home and study. In addition, there are books and videotapes, especially prepared for children, that show the court and describe the process of testimony.
The Court Process
The child should be informed of the specific steps in the court process including the following:
- swearing in;
- providing identifying information;
- direct examination; and
It is helpful to explain to the child that the defendant's attorney will probably try to confuse and trick the child. If the professional knows that certain procedures will be used to assess the child's competency, the child should be told what these are, but not the answers. Advice should be given about how to handle questions the child does not understand or know the answer to. The child should be told to respond with an "I don't understand the question" or "I don't know." Objections and what to do when they are made should be explained (the child should be told to wait until the judge tells him/her what to do).
The Child's Recollection
As is the practice with adults, children should be informed about what they will be asked. If there are some specific issues that are likely to be raised on cross-examination, the child should be told.
It is not a good idea to tell the child what responses are expected of him/her. Such instruction might be perceived as leading. However, the professional can refresh the child's recollection in a variety of ways. There may be an audio or videotape of the child's previous statements regarding the abuse. The child can be allowed to watch and/or listen to these. Alternatively, there may be a transcript of previous testimony or a report the professional can review with the child. The child may have drawn pictures of the events that occurred, which have become part of the case record. These can be reviewed with the child or the professional can simply ask the child to recount what the child recalls of the abuse and its circumstances and prod the child's memory if there are any lapses.
Additional Suggestions for Preparing Children to Testify
Remember that others may also take an active victim/witness advocate role, particularly the guardian ad litem. The child can never have too many advocates. His/her best interests require that every step possible be taken to minimize stress associated with the courtroom experience.
A few other suggestions for preparing the child to testify include:
- Contacting those close to the child and enlisting their cooperation in supporting the child before and after the courtroom experience.
- Telling the child, well in advance of the trial, that his/her alleged abuser will be in the room during his/her testimony.
- Alerting the agency's attorney to possible arrangements that would lessen the child's anxiety during his/her testimony (see "Judicial Authority To Make a Child Witness More Comfortable in the Courtroom" and "Special Legislative Provisions for the Protection of Child Witnesses"). States differ on their procedures for making such arrangements. In some courts, the attorney will have to ask the judge through a formal pretrial motion; in other States, the judge will automatically permit some special treatment for a child witness.
The Impact of the Federal Children's Justice Act and the Victims of Child Abuse Act
The Federal Children's Justice Act makes financial assistance available to States to encourage reforms in the handling of child abuse cases. Under the Act, the use of State multidisciplinary task forces is promoted to identify and implement improvements in the legal system. The Act also commits the Federal Government to improving coordination among agencies and programs that deal with child abuse issues, as well as to a general increased involvement in identifying and evaluating effective approaches to child abuse cases.
The Federal Victims of Child Abuse Act also authorizes funding for multidisciplinary programs, as well as for a variety of other technical and training programs to improve the handling of child abuse cases by the courts. The Act specifically provides child victims with a number of rights and protections in cases that are heard in Federal courts. These include allowing, under some circumstances, testimony by two-way, closed-circuit television, videotaped depositions, adult support persons for child witnesses, restrictions on delays in court, and the appointment of a guardian ad litem.
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