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 ok 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 of providing information depending on age  Measurements  Ethnicity  Timing of events  Behaviors  Telling time  Relationships  Length of time  Abstract Reasoning  Estimating  Dates

FACTORS AFFECTING TESTIMONY  # times having to  Corroborating testify evidence?  Relationship to  Fear person they are  Retribution to self or testifying for/against others  Public speaking  Reveal personal info to  Severity of Abuse? strangers

STRESSFUL FACTORS WHEN TESTIFYING:  Delays  Intimidating process  Continuances  Character defamation  No child friendly waiting  Insensitive questioning areas  Big, complicated words,  Lack of protection 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 of a witness to tell the truth. (Emphasis added)

COMPETENCY CONCERN? Voir Dire  Is speech  Ability to be intelligible? understood?  Understand simple  Understand duty to questions? tell the truth?  Younger the child the shorter the question

EXAMPLES OF YOUTH OR PERSON WITH MENTAL IMPAIRMENT ABLE TO TESTIFY No arbitrary minimum age limit  4 y/o competent to  15 y/o, IQ 44 qualified – testify observing easy to understand, mother’s murder credible, knew difference between truth and lie  3 yr 3 mo old competent to testify man he knows  6 y/o qualified even in truck was one who ran though thought over sister 12day=week

EXAMPLES OF YOUTH OR PERSON WITH MENTAL IMPAIRMENT ABLE TO TESTIFY  Communication does  Committed mental NOT have to be patient may be verbal competent  Witness competent  Dementia or delusional where could patients may lack ability communicate only by to perceive event-must tapping for “yes” or voir dire to determine “no”

NOT RELEVENT WHEN ASSESSING COMPETENCY  Honesty  Emotional instability  Discrepancy in testimony  Inability to fix events in  Hesitancy time  Embarrassment  Belief in Santa or Tooth Fairy  Apprehension  Doesn’t know address, birthdate, tell time  Bias towards another

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  If you told your mom I hit white is that the truth or you would that be the a lie? truth or a lie?  If I said it was raining  If a girl in your class said outside is that truth or a something bad happened lie? to her but it didn’t really happen would that be the truth or a lie?

WHAT HAPPENS WHEN YOU LIE?  If your teacher  If you told your mom caught your friend your sister broke the telling a lie what toy and your mom would happen? 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  Question during best  Calm voice time of day for youth (usually during school hours)  Don’t argue objections in front of child  Avoid continuances  Stand/sit one place  Leading questions- during exam some leeway younger the child  Frequent breaks

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 6 th 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  State of mind or physical (EC 1290-1291) condition or for medical diagnosis or treatment (EC 1250-1253)  Spontaneous Declaration (EC1240)

Questions?

Probate Attorneys Evidence Workshop The Child Witness By Hon. Carolyn M. Caietti