THE CHILD WITNESS WHY HAVE A CHILD TESTIFY? Discover truth vs. - - PowerPoint PPT Presentation

THE CHILD WITNESS

WHY HAVE A CHILD TESTIFY?

Discover truth vs. Safeguarding child witness mental, physical well being

KIDS ARE NOT MINATURE ADULTS

ABA Standards of Practice for Lawyers

ABA STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN IN ABUSE AND NEGLECT CASES

 A-3. Developmentally Appropriate.

 "Developmentally appropriate" means that the

child’s attorney should ensure the child’s ability to provide client-based directions by structuring all communications to account for the individual child’s age, level of education, cultural context, and degree of language acquisition.

Communication Magic Tricks 7 Tips

• 1. The Basics

A. Introduce

yourself

B. Explain what’s

going to happen

C. Listen

Communication Magic Tricks 7 Tips

 2. Ask Open ended

Questions

 3. Show Empathy  4. Name the feeling  5. Fantasize  6. Active listening  7. Echo

Your ____________ wants to feel validated. Your _____________ wants to feel heard. Your _______________ wants you to say you get it.

PREPARING TO TESTIFY

Age appropriate preparation

Alleviate fear, stress

Who is in courtroom?

What do they do/role

Tour courtroom Anxiety reduction strategies

Support person Support animal Favorite object

PREPARING TO TESTIFY

General Instruction on answering questions

• k to say “I don’t know”, “I don’t understand”

Take break Where will parents or trusted person be Why is hearing recorded or writing down Be truthful

Areas youth may have difficulty or incapable

• f providing information depending on age

Measurements Timing of events Telling time Length of time Estimating Ethnicity Behaviors Relationships Abstract Reasoning Dates

FACTORS AFFECTING TESTIMONY

 # times having to

testify

 Relationship to

person they are testifying for/against

 Severity of Abuse?  Corroborating

evidence?

 Fear

 Retribution to self or

• thers

 Public speaking  Reveal personal info to

strangers

STRESSFUL FACTORS WHEN TESTIFYING:

 Delays  Continuances  No child friendly waiting

areas

 Lack of protection  Intimidating process  Character defamation  Insensitive questioning  Big, complicated words,

questions

COMPETENCE

• Store information
• Observe, recall,

communicate

• Awareness of truth v. lie
• Appreciation of promise

to tell the truth

• Understanding potential

consequences of not telling the truth

Evidence Code 700

Except as otherwise provided

by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any

• matter. (emphasis added)

Evidence Code 701

 (a) A person is disqualified to be a witness if he or she

is:

(1) Incapable of expressing himself or

herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or

(2) Incapable of understanding the duty

• f a witness to tell the truth. (Emphasis added)

COMPETENCY CONCERN? Voir Dire

Is speech

intelligible?

Understand simple

questions?

 Younger the child the

shorter the question Ability to be

understood?

Understand duty to

tell the truth?

EXAMPLES OF YOUTH OR PERSON WITH MENTAL IMPAIRMENT ABLE TO TESTIFY

No arbitrary minimum age limit

 4 y/o competent to

testify observing mother’s murder

 3 yr 3 mo old competent

to testify man he knows in truck was one who ran

• ver sister

 15 y/o, IQ 44 qualified –

easy to understand, credible, knew difference between truth and lie

 6 y/o qualified even

though thought 12day=week

EXAMPLES OF YOUTH OR PERSON WITH MENTAL IMPAIRMENT ABLE TO TESTIFY

Communication does

NOT have to be verbal

Witness competent

where could communicate only by tapping for “yes” or “no”

 Committed mental

patient may be competent

 Dementia or delusional

patients may lack ability to perceive event-must voir dire to determine

NOT RELEVENT WHEN ASSESSING COMPETENCY

 Honesty  Discrepancy in testimony  Hesitancy  Embarrassment  Apprehension  Doesn’t know address,

birthdate, tell time

 Bias towards another  Emotional instability  Inability to fix events in

time

 Belief in Santa or Tooth

Fairy

Key is: ability to perceive event, ability to recollect and communicate event?

Capable Understanding Duty to Tell Truth

Must show “some earthly evil” if truth is not told

EXAMPLES OF UNDERSTANDING TRUTH OR LIE

 If I said my shirt was

white is that the truth or a lie?

 If I said it was raining

• utside is that truth or a

lie?

 If you told your mom I hit

you would that be the truth or a lie?

 If a girl in your class said

something bad happened to her but it didn’t really happen would that be the truth or a lie?

WHAT HAPPENS WHEN YOU LIE?

 If your teacher

caught your friend telling a lie what would happen?

 If you told your mom

your sister broke the toy and your mom believed you but your sister didn’t really break the toy- you made it up-what would happen to your sister?

OATH or PROMISE?

 Evidence Code 710:

Every witness before testifying shall take

an oath or make an affirmation for declaration…except that a child under the age of 10 or a dependent person with a substantial cognitive impairment in the court’s discretion, may be required only to promise to tell the truth.

Do you promise that you will tell the truth?

TESTIFYING IN COURT

Evidence Code 765 – Court Controls Mode of Interrogation  Ascertain the truth and protect witness from

undue harassment or embarrassment.

 If under 14 or dependent person with

substantial cognitive impairment avoid undue harassment or embarrassment and ensure questions are in a form appropriate to age or cognitive level.

TIPS

 Calm voice  Don’t argue objections

in front of child

 Stand/sit one place

during exam

 Frequent breaks  Question during best

time of day for youth

(usually during school hours)

 Avoid continuances  Leading questions-

some leeway younger the child

TALK TO THE JUDGE!

 Any special concerns with child testifying?  Submit written questions?  Issues regarding a child or cognitive impaired adult?  Fact in court – trauma or something occurred

warranting a child to have to testify

 Is witness potentially unavailable if a child due to

physical illness, mental illness (i.e. PTSD), victim and testifying would experience trauma

 Standard for dependency: “the possible benefit derivable from [the]

testimony would not warrant the [psychological] injury it would cause”

ACCOMODATIONS WHEN TESTIFYING

 Courtroom?

 If open proceedings generally can’t close  Testify via closed circuit t.v.  Support person and/or support dog

 Chambers?

 Without parents or litigants  With attorneys, court reporter  Judge provides transcript to parents  Some judges will speak with child alone in chambers (dependency)-don’t

subscribe to that practice

 Non criminal case – some leeway

 No 6th amendment right to confront

ADMITTING OUT OF COURT STATEMENTS OF UNAVAILABLE WITNESS



Must be unavailable (Evidence Code 240) to be admitted as exception to hearsay:

 Unavailability includes: Incompetency EC 240(a)(2) Unable to testify because of physical or mental illness or

infirmity (i.e. PTSD, trauma) EC 240 (a)(3)

Persistent refusal to testify threaten or found in

contempt but still won’t testify EC 240(a)(6)

Threaten of fear of bodily harm on self or others if

testify

Loss of memory

Hearsay Exceptions if Unavailable

 Prior recorded testimony

(EC 1290-1291)

 Spontaneous Declaration

(EC1240)

 State of mind or physical

condition or for medical diagnosis or treatment (EC 1250-1253)

Questions?

Probate Attorneys Evidence Workshop

The Child Witness By

• Hon. Carolyn M. Caietti