Can You Examine The Child Witness Examining the child witness, in many cases, can provide the fact finder with the most compelling evidence in a child welfare case. Whether you represent the minor, a respondent parent, or the county, you need to be not only willing to examine the child witness, but skilled in extracting testimony in a persuasive way. This chapter will address both the rules and techniques to help you master direct and cross examination of a child.
I. The first question is: can you direct or cross the child? In other words, is the child competent to testify? In California, this is a simple proposition to determine, and the answer is usually, yes! California Evidence Code § 701 requires only that a witness be capable of expressing him/herself, and capable of understanding the duty of a witness to tell the truth. The most common issue regarding competence is the child’s ability to tell the truth, and that is usually addressed in direct exam (or voir dire by way of a competency challenge). Here is an example on direct: (Note: notice that many of these questions are in a leading form. That’s ok on direct exam in this instance because the questions are simply laying the foundation for competence.)
Q. Jimmy, do you know the difference between the truth and a lie?
Q. What is the difference?
A. The truth is true and a lie is not true.
Q. Do you understand that you must tell the truth when you are in court?
Q. What will happen if you do not tell the truth today?
A. I’ll get in trouble.
Q. That’s right. Lying in court is called perjury and it is against the law. Do you know what happens if you break the law?
A. The police will take me to jail.
This part of the examination demonstrates the witness’s ability to understand the oath. It also shows that the child knows the difference between the truth and a lie, and that there is a consequence for telling a lie. It is not important that he knows what that consequence is, but just that a consequence exists. The next part of the exam demonstrates that he is capable of telling the truth. These questions should be simple and should be things that the child knows. Otherwise, the purpose of your exam would be defeated.
Q. Jimmy, how old are you?
Q. What are your parents’ names?
A. Mark Smith and Stacey Smith.
Q. What school to you go to?
A. Lincoln Elementary.
Q. What building are you in right now?
A. The court.
Q. How did you get here?
A. I came with Miss Jane.
Both prongs of Evidence § 701 are satisfied by this exchange. It is established that the child can express himself and that he can differentiate between the truth and a lie, and that there are negative consequences to telling a lie. It also demonstrates that he is capable of telling the truth through the asking of simple questions.
When challenges to competence are made in cases without a jury, the Judge may delay ruling on the challenge until the completion of the testimony. Therefore, counsel has the whole direct examination to show that the witness is competent. This is advantageous, as counsel can build a rapport with the child before launching into the competency foundation. It should be noted that California case law Should You Examine The Child Witness Once you’ve determined that you can examine the child witness, you must determine if you should examine the child witness. This is an entirely subjective determination based on your theme and theory of the case, and your trial strategy.
Your first consideration is whether or not the child’s desired testimony already exists elsewhere in the record (i.e. in the social worker’s report). If so, California has a dependency hearsay exception for statements of the child (and others) contained in the social worker’s report (see Cal. WIC 355 (b)). Note that at the Jurisdictional hearing, respondent parties may object to hearsay contained in the social worker’s report. In such a case, the court may not rely solely on those hearsay statements as the basis for jurisdiction, unless petitioner then establishes one of the WIC §355 (c)(1) criteria. However, even if petitioner fails, the statements are nonetheless received into evidence. In subsequent hearings, the social study is received without limitation on the reliability of the hearsay statements; all of the hearsay is admitted subject to cross examination. Due to this statutory scheme, it is an unusual case where the petitioner calls the minor on direct exam, as all of the child’s prior statements should be in the social study.
Finally, even if the child’s hearsay statements come from some other source, proponents may be able to utilize the child hearsay exception as laid out in In re: Cindy L., (1997) 17 Cal.4th 15, 29) to enter the hearsay statements into evidence.
Considering that the minor’s statements likely already exist in the record, opponents of those statements may wish to cross examine the child. This is a delicate process in most instances, depending on how young the child is. The main consideration when deciding whether or not to cross the minor is: what are you going to get out of this examination? What are your goals? Some common goals are:
Get a recantation of the child’s previous statements;
Bring out inconsistencies in the statements;
Add to the minor’s “story” (facts previously left out);
Add emotion to the “story”; etc.
Notice that “fishing for unknown facts that may help your case” is not on this list. You should almost never call a witness for this purpose, especially a child witness. Child witnesses are afforded more protection than adult witnesses (see, for example, Cal. Evidence Code § 765(b)), and the Judge will be careful to put a stop to examinations that tend to harass or embarrass the child with no obvious purpose.
Dependency court is a unique place to be a trial attorney. In California, Judges not only preside over trial procedure and matters of law, but they are the finder of fact as well. All trial lawyers begin a trial with a certain amount of credibility with the bench officer. Presumably, you are an ethical person, thus your credibility is high. While the attorney’s words and actions are not evidence, your credibility will be reflected on the credibility of the case you are presenting. Putting a young child through the stress of testimony with no obvious purpose related to your theory of the case, will certainly cost you some credibility. Special Rules For the Child Witness There are special rules regarding the child witness in California. The aforementioned Cal. Evidence Code § 765(b) which protects the child from undue harassment is only one of such protections. Cal. WIC § 350(b) allows the court to take the testimony of the child witness in chambers, outside the presence of the parents if the parents are represented by counsel and proponent can show that it is necessary to ensure truthfulness, the child is intimidated by the formal court process, or the child is afraid to testify in front of his/her parents.
Another special rule comes from Cal. Evidence Code §767(b) which allows the attorney to ask a child under the age of 10, leading questions on direct exam. While this is a useful rule for the proponent of the child’s testimony, it should be used sparingly. Leading questions are great for getting the child witness back on track, laying foundation, or to help him/her feel more comfortable. However, direct exam is most persuasive when the witness is the storyteller and the lawyer simply prompts the witness along the path to the story. A direct exam where the child simply confirms assertions by counsel, is not a very persuasive story. The story is compelling when the child uses his/her own words to describe what happened. Preparing the Child Witness If you represent the minor, you must prepare him/her to testify. Obviously, this is different than preparing an adult, and special care should be taken to help the child feel comfortable. Some jurisdictions have a “Kids in Court” or similar programs that children attend with their caregivers. These programs take children into the courthouse after hours where they get to meet a Judge and a Bailiff and take part in some role playing. They also get to sit in the witness stand and the Judge’s chair, all so they may feel a little more comfortable when called to testify. If your jurisdiction offers such a program, it’s a necessary way to begin your client’s preparation.
Another consideration to assist the child witness is to have a trusted adult present during their testimony. This could be a caretaker, non-offending parent, CASA, or any adult who is supportive and is trusted by the child. Ask the child if there is someone who’s presence makes him/her feel more comfortable. If so, and that person is a witness, consideration should be given to the order of witness testimony. Care should be taken to ensure that this trusted adult, is able to remain in the courtroom. Counsel should even consider asking permission to call witnesses out of order to accommodate this person’s presence during the minor’s testimony (the general policy of Evidence Code § 765 et seq. supports this request).
When preparing a child to testify, you should do all of the things one does with an adult witness:
Explain the rules of the courtroom
Explain who gets to talk and when
Advise him/her to tell the truth
Let him/her know that it is OK to disagree if someone is wrong
Tell him/her what topics you will be asking about
Tell him/her it’s OK to ask for a break
Advise that the Judge doesn’t know what happened, so he/she needs to explain and tell the story
Go over some techniques to keep calm
Remember, when discussing topics and testimony, that young children are more susceptible to suggestion than adults. You want to ensure that the child’s story comes out—not your interpretation of the story. If that child testifies, for example, using words and themes that have been suggested by adults, it will likely be very obvious. At that point, your client is no longer believable. Part of your job as counsel is to preserve the child’s story and make sure others are likewise not making suggestive statements to your client. (See “Adjudication of Child Sexual Abuse Cases” (1994) by John E.B. Myers, Sexual Abuse of Children, Vol. 4, No. 2. P. 85, which cites that deliberate fabrication is uncommon, but that poor interview techniques can distort and even create children’s memories.) It’s essential to work with your collaterals at Child Welfare Services and the police to try to limit your client’s exposure to weak, repetitive, or improper interviews. More Prep Take the extra time to adequately prepare the child witness. It can be repetitive and even frustrating, but consider the emotional impact on this child. Many lawyers report how difficult it is for them to talk to children about topics such as sexual abuse. Getting out the details is painful. If the professional adult is uncomfortable, think about how that child feels! This is not to say that testimony should be avoided, simply that the child needs to be prepared and supported.
Myers states that “Children are strong and resilient, and most of them cope with testifying and move on with their lives. Indeed, with proper preparation and support, some children are empowered by testifying” (Myers, Supra. at P. 90). While the child’s testimony may not be necessary in securing his/her protection due to California’s social study hearsay exception, it is often necessary in securing prosecution. Furthermore, if counsel plans to cross examine the child, it’s usually best to soften that blow by calling the child on direct and going through his/her story yourself. Preparing your Exam Part I Now that you know you can and should examine the child, you are aware of the special rules, and the child is prepared, you can prepare your examination. No matter who you represent in the case, it generally will not help your cause to attack the child witness. Not only will the Judge, as protector of the legal proceeding, not allow it, but the Judge, as finder of fact, will not tolerate it. Furthermore, even if you represent the parent, your client will likely not tolerate it either—regardless of the allegation. Besides, you are much more likely to elicit the desired testimony by using the opposite approach: make friends!
On direct, making friends is a bit easier. In fact, you may already have a significant relationship with this minor if he/she is your client. Likewise, if you are the petitioner, the child likely has a relationship with the social worker sitting by your side. This helps at first, but you still have some work to do on the record to get the child at ease and ready to tell his/her story.
Your first step is to start building rapport. At this stage, mix in questions that are easy and possibly leading. Your goal here is simply to start the communication process. This is also the time to give the child instructions. The reason for this is twofold: it helps the child understand what to do, and it helps to demonstrate competence to testify. Instructions should include what to do if he/she doesn’t understand, or doesn’t know the answer.
Q. Hello Jimmy, my name is Mr. Smith and I am the lawyer for the social worker.
Q. Do you know the social worker, Mrs. Johnson?
Q. You’ve been to Mrs. Johnson’s office, right?
Q. I have some questions to ask you, but before I start I want to tell you the rules, ok?
Q. If I ask you a question that you don’t know the answer to, I want you to tell me that you don’t know, ok?
Q. If I ask you a question that you don’t understand, just tell me that you don’t understand the question and I’ll try to ask it in a different way so that you can understand. Ok?
Q. Finally, if I say something that is wrong, I want you to tell me what I said was wrong, ok?
Once you have given the witness instructions, you can get into the competency questions listed in the beginning of this chapter. All of this simple, no pressure time on the record helps to calm the child down and get him/her used to answering questions. Once your foundations are laid, you can graduate you rapport building to include asking narrative questions. This will get the witness used to telling stories and elaborating. Remember, just because the judge may allow you to lead, your goal on direct is to get the minor to tell his/her story through the use of “who, what, where, why, when, and how” questions. Preparing Your Exam Part II One of the best ways to build rapport and increase the productivity of the exam is to ask the child to narrate a recent event (Lyon, T.D. (2011) Assessing the Competency of Child Witnesses: Best practices informed by psychology and law. In Children’s Testimony: A Handbook of Psychological Research and Forensic Practice (pp. 69-85). Sussex, UK: Wiley-Blackwell). Dr. Lyon suggests asking the child about something they like to do, or about their last birthday party. It’s important to choose a topic that allows the child to give a narrative answer. Use “who, what, where, why, when and how” questions to elicit a narrative response – you want detail in the child’s own words. In an interview setting, you can go into numerous narratives to put the child at ease and build rapport. In court, you will have limited time before “Objection! Relevance.” is heard echoing off the bench. So be prepared to switch gears quickly if your questions are not eliciting a narrative response.
Q. Jimmy, what do you like to do?
A. I like to play video games.
Q. Oh, which videogames do you like to play?
A. Minecraft and Infinity.
(This may not be a topic allowing for much narration, or one in which you are not competent to prompt the story. If so, try something else.)
Q. Ok. Did you have a birthday party this year?
Q. Cool. Where was your birthday party?
A. It was at the park near my house.
Q. Who was at your party?
A. My mom and my sister, my friend Mason and most of the kids in my class.
Q. Wow, that sounds fun! What did you all do at the party?
A. We played games, ate cake, and I got a lot of presents. We played hide and seek too.
Q. So you got a lot of presents. Can you tell me a little bit about the presents you got?
These are the type of questions that get the child used to talking in the narrative style, and help the child to be more comfortable in the court setting. Testimony is unlike any other type of setting or communication style this child has likely experienced in his/her life. It is contrived and artificial. You need to have a little small talk first to break the ice. Once the child seems comfortable, you can move into the narrative of abuse.
Q. Now I want to talk to you about why we are here. Do you know why we are here?
Q. And why is that?
A. Because my step dad hit me.
Q. Where did he hit you? (Who, what, where, when, how and why questions.)
Another way of introducing and moving into the topic of abuse is asking the child: “tell me why you are here to testify.” Then follow up with “what happened next” questions. Remember, children likely will need to be prompted to give details more than an adult will need to be prompted. For more tips refer to Lyon, T.D. (2005) “Ten Step Investigative Interview” available at http://works.bepress.com/thomaslyon/5. Preparing Your Exam Part III The theory of “making friends” with the child witness also applies to respondent parents’ counsel. Presumably, the child just finished direct exam, so you should not have to worry about competency or the child’s relative comfort level, but you can still ask a couple of rapport building questions of your own. Start with some introductions and maintain a calm and friendly tone. Even if you are in an obvious impeachment situation, maintain a smile and remain friends.
Q. Hello Jimmy, my name is Mr. Stevens and I’m your step-dad’s lawyer. I have a few questions I’d like to ask now. Is that ok with you?
Q. Great. I heard you tell Mr. Smith that you like to play video games. So do I! I like Super Mario Brothers. Have you ever played that game?
A. Yeah, I have that game, but I don’t play it very much.
Q. I’m not very good at it—I’ve only gotten to Level 2. How far have you gotten?
A. I think I got to World 4.
Q. Wow, that’s great! I’d also like to talk about some of the other things you said to Mr. Smith. You told Mr. Smith that your step-dad hit you with a wooden pole. Do you remember that?
Q. That was one of the poles from the garden, right? (Continue on with leading, “yes or no” questions.)
Leading questions are a tool to control the witness. This tool is even more effective when your witness is a child, rather than an adult. One reason for this is that children may see the lawyers and court personnel as authority figures, and thus not want to argue with you. Another reason is that children are less likely to elaborate on their answers. They may give detail when prompted, but if asked yes or no questions in a stressful environment, they are likely to give simple yes or no answers. You do not have to “be cross” on cross examination in order to control your witness, if you are asking proper leading questions.
Much study and analysis has been done on the forensic interviewing of children. The basic principles of interviewing are the same as in examining the child witness in court. Granted, the rules are not the same, but the methods for getting the child comfortable and able to succeed as a storyteller are the same. For more information and tips that translate into court testimony, see generally Thomas D. Lyon and John E.B. Myers, both of whom have extensive publications available online, many free of charge.