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About the Author
Ms. Freedman has served as the American Bar Association Young Lawyers Division Assistant Council Coordinator for the South Central Region of the U.S. comprising Arkansas, Oklahoma, Kansas, Missouri, Texas and Louisiana. She has also served as Chair for Arkansas Young Lawyers Section. Ms. Freedman is a certified Attorney Ad Litem for children and represents approximately fifty (50) children who have been taken into foster care because of abuse or neglect. She also represents children as an Attorney Ad Litem in private custody cases and handles other family law cases. She practices with the firm of The Law Offices of W. Kelvin Wyrick in Texarkana, Arkansas.
Representing children in court proceedings is a tricky area for the young lawyer. Proper interaction and representation of children is based on thorough instruction and training in child psychology, the juvenile court system and a myriad of sociological and psychological research. For this reason, this article seeks to concentrate in the area of interviewing the child client and serves as a quick reference guide for the young lawyer. It is in no way an exhaustive training text, and the young lawyer who has a definite interest in this area should consult his or her jurisdiction for in-depth CLE courses and state and federal guidelines for representing child clients. It should be noted that most states have these guidelines and/or laws in place, so a thorough search is in order.
The first rule of thumb to remember is simple: children are not adults. As obvious as this statement seems, it is the most overlooked and abused of the rules. Children do not have the experience level, the judgment capacity, nor the intuition that the average adult has. For this reason, interviewing a child should be done very carefully. In short, they are not "short adults." Second, you should also be alert to other adults, although possibly well intentioned, who will want to question your child client or witness, with or without you present, and who may not observe proper protocol. You, as the attorney, have a duty to minimize this whenever possible. If the child is your client, you have a right to be present at all times when the child is questioned by authorities or other attorneys, which may prove important if you have to break down difficult ideas and re-phrase the questions in "child friendly speak.
The basic checklist 1 to remember when interviewing or questioning a child is as follows:
Overall, remember that you, as an attorney, have a heavy responsibility in dealing with the child. Research indicates that repeated and inappropriate questioning of children in child sexual abuse cases often results in contaminated testimony evidence 2. This repeated questioning can also be extremely psychologically damaging if done improperly since the child is forced to re-live the abuse over and over for each questioner. Thus, it is extremely important that you have proper training in questioning a child in this context. Because child sexual abuse is beyond the scope of this article, we simply encourage you to seek appropriate, in-depth training if that is an area that you wish to explore in your practice. In summary, remember that the child client or witness is not an adult. His or her maturity level is greatly diminished compared to your own. Keep your questions clear, simple and concise. Remember that you have a heavy burden to protect this child from improper questioning and from having a severely negative experience in the legal system, which could be psychologically damaging.
1The majority of the information in this checklist is taken from excerpts of the Handbook on Questioning Children, Ann Graffam Walker, PhD. published by the ABA Center on Children and the Law, 2nd Edition (1999).
2"...repeated interviews or interviews employing improper questioning methods can irreversibly taint the evidence, i.e., destroy the original testimony of the child, as early as the second interview. Improper questioning, even if the interviewer is unaware of using improper methods, can also destroy the primary evidence. Any attempt that is made to re-evaluate, re-examine or cross-examine the testimony of the child for presentation to a jury after several interviews may fail, since accurate information may no longer be obtained. The more interviews to which the child has been subjected, the greater the likelihood that the child's testimony has already been contaminated. Institute of Psychological Therapies, Volume 9 (1997).