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The Role of First Responders in Child Maltreatment Cases: Disaster and Nondisaster Situations
Office on Child Abuse and Neglect, Children's Bureau. Cage, Richard., Salus, Marsha K.|
|Year Published: 2010|
Testifying in Court
In This Chapter
- Preparing for court
- Guidelines for testifying
- What to expect during the trial
- The juvenile court process
- The criminal court process
First responders often are required to testify in court about cases of suspected child maltreatment. This provides them with an opportunity to present the information and evidence they have collected during their response and investigation. Testifying in court can be an intimidating experience for those who are new to it, as well as for those who have testified many times. This chapter provides an overview of the court process.
Preparation for Court
The most basic rule for testifying is to show up to court on time, well-groomed, and dressed appropriately. The first responder should wear clean and professional clothing. Prior to attending court, the first responder should ensure that the case file is organized, complete, and current. This includes making certain that the evidence and interview logs are complete and include information on dates, times, and locations. The first responder should thoroughly review and be familiar with the information in the case file. Prior to the trial, the prosecutor might meet with the first responder to discuss the case and prepare the first responder for possible questions. It is helpful to prosecutors to know the first responder's answers to questions prior to asking them in court.
|Guidelines for Testifying|
|The following are guidelines to testifying in court:
During the Trial
The prosecuting party, which might be called the prosecutor, District Attorney, Commonwealth Attorney, Corporation Counsel, or State's Attorney, may question first responders in several stages, including direct examination, cross-examination, and rebuttal examination. This questioning generally is open-ended. This allows the witness to explain the answers fully in order to present the court with evidence to support that party's position. Direct examination usually includes the following:
- The witness's name is called, and then she approaches the witness stand
- She takes an oath and swears to answer truthfully
- The attorney may ask for the following:
- The witness's name, occupation, and place of employment
- The length of time at her current job, title, and type of work
- Her job qualifications
- How she knows the child or family
- What happened at specific times and places
- Any other pertinent information.
During the direct examination, it is important that the first responder carefully listen to all questions that are asked and to request clarification if a question is not fully understood. The first responder should be polite and respectful to all court personnel. Additionally, the first responder should be aware that she is not expected to know the answers to every question. If the first responder does not know or remember the answer, she should state this. It is important to be honest. Mistakes may be made in any investigation, and the first responder should not attempt to cover up these mistakes.121
After direct examination, the first responder is subjected to cross-examination, which usually is conducted by the alleged offender's attorney. The purpose of cross-examination is to find inconsistencies or fault in the first responder's testimony and to expose any weaknesses. The attorney typically uses closed-ended questions that require a yes or no response. If the first responder tries to give a more complete, explanatory answer, it usually is not allowed. Being cross-examined can be one of the most difficult parts of testifying. Typically, the attorney tries to cast doubt on the thoroughness of the investigation and the first responder's interpretation of the facts. The attorney also may allude to the possibility that the judgment and the actions of the first responder were clouded by her opinions about the alleged offender. The first responder should not become angered by statements made by the defense team and should stay in control of her emotions at all times. She should remember not to take the cross-examination personally; the defense attorney is doing his job.
Defense attorneys use various techniques during cross-examination. If the first responder understands these techniques, it will be easier to keep her poise when answering questions. Exhibit 4-1 describes common techniques used during cross-examination.
If the prosecutor believes that a rebuttal is needed after the cross-examination, he will conduct a redirect examination. The focus of the redirect examination is to address issues raised on cross-examination that need to be cleared up or answered more completely.
Types of Questions Used During Cross-Examination
The following are types of questions that attorneys may use strategically during cross-
The Juvenile Court Process
Juvenile courts typically hear cases of child maltreatment, delinquency, and status offenses (i.e., cases in which an action is a crime only if the offender is a minor, such as underage drinking), as well as those involving adoptions and terminations of parental rights (TPRs). In alleged child maltreatment cases, the juvenile court determines whether there was maltreatment, orders any necessary services for children and families, and monitors the interventions. While not all first responders will be involved in all aspects of the juvenile court process, the following sections outline the key stages, which may vary across jurisdictions.
Petition for Removal
A child protection proceeding begins with the filing of a petition for removal, which contains the key facts of the child maltreatment case. In most States, only child protective services (CPS) can file the petition, but some also permit other public officials or private citizens to do so. Once the petition is filed, it must be served (presented) to the caretakers accused of maltreatment. Ideally, no child should be removed from a family until after a petition is filed and the court has conducted an initial hearing at which the parents were present and had an opportunity to be heard. In reality, however, most removals are authorized without the parents present, and the first hearing is conducted after the removal has occurred. This may occur in emergency circumstances where the child should be immediately removed from the home for safety reasons. In this case, a petition would be filed after the removal. CPS workers and law enforcement officers should be familiar with the protocols in their jurisdiction.
The first event in court after the filing of a petition is the initial hearing. Ideally, it should occur on the first day following the filing of the petition, upon removal of the child, or as soon as possible thereafter. The main purpose of the initial hearing is to determine whether the child should be placed in substitute care or remain with or be returned to the parents pending further proceedings. The critical issue is whether services or other measures can be put in place to ensure the child's safety.
Some courts use pretrial conferences, also known as settlement conferences, in child maltreatment cases. These are opportunities for the parents, their attorneys, and the child's advocates to discuss a way to settle the case that would make a trial unnecessary. In courts where there are no formal pretrial conferences, these negotiations often occur among attorneys by phone or at the courtroom and as late as right before the scheduled adjudication. The judge may or may not participate, depending on the jurisdiction and the nature of the case, and some judges will initiate such negotiations themselves. It is important, however, that provable allegations of significant child maltreatment not be negotiated away.
Discovery is a pretrial process that allows each party to obtain information about the case from the other parties. It is intended to avoid "trial by ambush," to narrow the contested issues, and to expedite settlement. Discovery in child maltreatment cases usually involves the parents' and child's attorneys asking CPS and other relevant agencies for their records. In most States, they are entitled to those records. While details of the initial and investigative reports are revealed, the name of the reporter is not.
If the case is not settled by agreement of the parties, it will go to adjudication, in which the court decides whether CPS can prove the maltreatment allegations in its petition. The CPS attorney will present evidence through the testimony of the first responders or other witnesses, including any experts. Documents such as medical records or photographs also may be entered into evidence. The attorneys for the parents and the child will have the right to question or cross-examine the witnesses and to present evidence. The parents may testify, as may other family members or neighbors who have knowledge of the facts alleged in the petition or of the care the parents provided their children.
At the disposition hearing, the court decides whether the child needs help from the court—and, if so, what services will be ordered—as well as whether the child should be:
- Left with or returned to the parents, usually under CPS supervision
- Kept in an existing placement
- Moved to a new placement
- Placed in substitute care for the first time if removal was not ordered previously.
The court also may enter orders providing for visitation schedules or for controlling the conduct of the parent (e.g., having supervised visits, mandating counseling). It also can order CPS to conduct follow-up visits with the family to ensure the child's protection. As a part of the preparation process for this hearing, CPS should talk with the parents and develop with them a case plan for the family. In some States, the court must approve the case plan. In all States, the plan must be discussed and refined at the disposition hearing, and any disagreements regarding its terms must be resolved.
The review hearing is an opportunity to evaluate the progress that has been made toward completing the case plan and any court orders and to revise the plan as needed. If no progress has been made, and none seems likely, it is a chance to change the goal of the plan. For example, it may not be possible to reunite the child with his family because the parents have repeatedly not complied with their drug treatment requirements, which indicates that they would not safely be able to care for the child. Therefore, alternative options must be explored. Review hearings should guide the case to permanency for the child. Unless a permanent placement is accomplished on or before the date of the permanency hearing, the court must continue to review the case periodically.
The permanency hearing is the point at which a definitive decision is made about the child's permanent placement. In making this determination, the court must weigh which option is in the child's best interest.123 In some cases, concurrent planning may be pursued. Under concurrent planning, an alternative, permanent placement is developed at the same time as family reunification is attempted. With this approach, the child can be moved quickly to a stable home if reunification with the birth family cannot take place.
Termination of Parental Rights
Because the stakes are so high, TPR hearings are the most formal, longest, and frequently appealed of all child maltreatment proceedings. Biological parents whose parental rights are terminated as a result of child maltreatment have no right to have contact with the child, knowledge of the child's whereabouts, pictures of the child, or information regarding the child. In addition to losing legal rights to the child, parents whose rights have been terminated generally have no further responsibilities to the child, except to pay child support that is past due. The grounds for TPR are specified in the statutes of each State, and CPS caseworkers are advised to familiarize themselves with these. Federal statutes also describe specific situations, such as when a parent has murdered a child's sibling, in which CPS must file a TPR petition.
A child is eligible to be adopted once the TPR is granted by the courts. In most States, the case remains involved with the juvenile court during and after the adoption process to ensure that CPS is complying with the requirements of the Adoption and Safe Families Act, incorporating Federal adoption legislation into practice, and accessing a variety of adoption subsidies and post-adoption services for eligible children.
Parents and CPS have the right to appeal some decisions of the juvenile court in child abuse and neglect and TPR cases. At the very least, they have the right to appeal at the conclusion of any adjudication, disposition, or TPR trial. Some States may allow appeals from other trial court orders or decisions, but generally, only final decisions are appealed or accepted for appellate review.
The Criminal Court Process
Some cases of child abuse or neglect may be heard in criminal courts because they constitute a crime, as defined by the State. Cases typically heard in criminal courts include sex offenses or those that result in the death of, or serious injury to, a child. However, not all cases that are considered criminal are tried in the criminal courts due to a number of reasons, such as whether the criminal case would interfere with rehabilitating the family or the possibility of traumatizing the child further by having him testify. As with the juvenile court process, first responders may not be involved in all aspects of the criminal court process. Though the criminal court process may vary across jurisdictions, the following is an outline of the key stages.
Arrest, Bail, and Other Conditions of Release
Criminal prosecutions most commonly begin with an arrest. The defendant then is brought before a judicial officer (a judge, magistrate, or commissioner) who informs him of the charges against him and determines the conditions of his release pending trial.
The defendant will be notified of the conditions that must be met to be released from police custody before the trial. A defendant with a stable residence and employment history and no significant prior record often is released on his own recognizance or with a written promise to appear at subsequent court dates. For a defendant who seems less reliable, a cash bond may be required. The defendant can post the full amount of the bond in cash or property or secure a bondsman for a percentage of that amount. If the defendant flees, the bondsman is obligated to pay the full amount of the bond. The judge also has the discretion to impose other conditions of release, including the defendant having no contact with the child or other parent or not returning to the residence. In some cases, the judge may decide to hold the defendant without bail pending trial.
The purpose of a preliminary hearing is to determine whether there is probable cause to believe that the defendant committed the alleged offense and that he should be tried on that charge. If the judge finds no probable cause, the case will be dismissed. If the judge finds probable cause, the case will be transferred to the trial court for resolution.
Witnesses, including first responders, sometimes are called to testify and are cross-examined at preliminary hearings. In some States, evidence of criminal conduct by the defendant is presented at a preliminary hearing to a grand jury instead of a judge. The grand jury then determines whether the evidence is sufficient to constitute probable cause. If so, the grand jury will issue an indictment that puts the case before the trial court. Only the prosecutor and the State's witnesses, usually the investigating law enforcement officer, appear before the grand jury. Neither the defendant nor the defense attorney has the right to be present at that proceeding.
Discovery refers to the process of obtaining information about the charge from the opposing party and, at times, other sources. In some States, the defendant may be entitled to access first responders' records, particularly if they contain information or evidence that may be helpful to the defense. For the most part, the reporter's identity is not released, but, in some jurisdictions, the reporter's identity can be released to certain departments or under specific circumstances (e.g., the reporter made a knowingly false report).124
Plea bargaining is a negotiated resolution that avoids trial and concludes the case. Without it, courts could not handle on a timely basis all the cases to be tried. Plea bargaining has the added benefit in child abuse and neglect cases of eliminating the need for the child to testify and of speeding the resolution of the case, both of which relieve the child's anxiety. Nevertheless, there also may be negative consequences to a plea bargain. Depending on the sentence, the child victim may feel betrayed, disbelieved, or unsafe. In addition, the public may perceive that child maltreatment is not taken as seriously as other crimes.
If no plea bargain is reached, the case goes to trial. In a criminal trial, the rules of evidence are applied strictly, and the prosecutor has a greater burden of proof. In order to convict, the jurors must unanimously find "beyond a reasonable doubt" that the defendant committed the alleged offense (i.e., there is no other logical explanation). This is a much higher burden of proof than the "clear and convincing evidence" standard (i.e., it is highly probable) in termination of parental rights trials in some States. It is higher still than the "preponderance or greater weight of the evidence" standard (i.e., there is more evidence supporting one side of the case) in civil cases generally and in child abuse and neglect cases in some States.
The criminal court case may be concluded well after the disposition hearing in the child abuse and neglect case, in which the court decides if the child needs help from the court and, if so, what services will be provided. Additionally, the outcome of the criminal court case can be inconsistent with the case plan and the best resolution of the child abuse and neglect case. The opposite also can be true, and the criminal sentence can augment and enhance the case plan and the prospects for a positive outcome. In communities where the same prosecutor represents the public interest in both criminal and child abuse and neglect cases, there is greater likelihood of a coordinated approach to resolving both matters.
The previous sections on the juvenile and criminal court processes were adapted from Chapter 4 of Working With the Courts in Child Protection. For additional information about legal issues related to child welfare, visit the website of the National Child Welfare Resource Center on Legal and Judicial Issues at http://www.abanet.org/child/rclji/courtimp.html, the website of the National Council of Juvenile and Family Court Judges at http://www.ncjfcj.org/, and Child Welfare Information Gateway at http://www.childwelfare.gov/systemwide/courts/.
This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare Information Gateway.