GPSolo Magazine - September 2005

Child Witness Examination

Perhaps the most important step in the process of working with a child witness is to establish trust and rapport. The best way is to get to know her. If she perceives you as being interested in her life, it is more likely that she will place trust in you. A good way to start is to ask open-ended questions about her everyday life. Because most children are painfully shy when they meet strangers, it is helpful to provide a fun and diverting activity for them during your interview in order to alleviate their shyness.

If the child is a victim of a crime or a witness to a traumatic event, it is important to minimize the number of times that she is interviewed before trial. First, multiple interviews require the child to experience the traumatic event again and again, which increases stress before trial. Second, the more interviews there are, the more likely it is that one of the interviewers might ask leading or sug-gestive questions. Also, the child’s testimony may evolve into what appears to be rehearsed responses.

You may wish to avoid the im-pression of rehearsed responses by eschewing a formal interview altogether. There is a risk, however, to this approach: You will not have complete confidence that the child will be able to recount the incident when she is actually in front of the judge or jury. You should take that risk only if the child has provided consistent testimony concerning the traumatic incident during prior interviews.

If you need to conduct an interview that touches upon a traumatic incident, have an investigator present to record all potentially discoverable statements. Remember, unless the child is your client, statements made during the office interview are not cloaked with privilege or protected by the work-product doctrine.

If the child has already been interviewed multiple times, further interviews by the trial attorney or her investigator should be held simply to clarify any ambiguities in her account. But it is absolutely critical at this stage that, in doing so, the questioner avoids leading or suggestive questions. Instead, use open-ended questions designed to elicit a full response.

Trial lawyers have an obligation to prepare children by acquainting them with courtroom proceedings beforehand. The best and easiest way to help them through the process is to take them to a courtroom, preferably one that is fully staffed with a bailiff, court reporter, and courtroom clerk. There, you can explain the roles of the court staff as well as the witnesses, attorneys, and judge.

Be sure your preparation of the child for trial follows the applicable procedural rules for your jurisdiction. Some jurisdictions offer special protection to child witnesses, for example, trial preference to child abuse cases. Many jurisdictions allow children to testify with the assistance of a support person who is allowed to sit next to the witness during the trial. Also, consider where in the courtroom the child’s family should sit during her testimony.

Because children who suffer or witness abuse often experience trauma and require counseling, it is important to have a thorough understanding of the evidentiary issues that might affect your case. If your child is in psychotherapy, it is likely that your opponent will seek to discover her entire file. Many jurisdictions have statutory provisions acknowledging the existence of the psychotherapist-patient privilege.

In civil cases, courts tend to be less respectful of the psychotherapist-patient privilege, especially if the plaintiff has placed her emotional state at issue by filing an emotional distress claim. However, placing her emotional condition at issue should not result in a blanket waiver of all privileged statements made during therapy.

In criminal sexual assault cases, many states have adopted statutory provisions that offer heightened protection against disclosure. The court must balance whether the proponent’s need for the discovery outweighs the child’s interest in maintaining the secrecy of privileged communications with her therapist.

Many states have adopted statutory provisions that further restrict the ability of the defense to discover or admit the prior sexual conduct of a sexual assault victim. Although these provisions tend to apply more regularly to adult cases, it is surprising how many child victims of sexual abuse have been abused previously. If your state has a similar provision and the defense attorney in your case has failed to file a written motion prior to trial, you should file an in limine motion designed to preclude any effort by the opposition to ambush your child witness during the trial with allegations of prior sexual conduct.

Also consider the role of “syndrome evidence.” There is a large body of medical literature discussing the various syndromes that can affect child witness cases (e.g., child sexual abuse accommodation syndrome, post-traumatic stress disorder, repressed memory syndrome, etc.), and individual jurisdictions have varying rules governing the admissibility of syndrome evidence. The question of whether to engage an expert to provide syndrome evidence at trial is a delicate one because many of the standard characteristics of these syndromes can be twisted so that your opponent can argue against the existence of the syndrome.

When questioning a child witness at trial, the same rules that govern interviewing apply. Ask open-ended, non-leading, simple questions. Impeachment of a child is a delicate task. If you call a child as a witness and she misstates or fails to state a significant fact, the best tactic is to avoid confronting her with prior statements or extrinsic evidence. Asking the same question in a slightly different way may be all you need do to obtain the accurate response. Generally, you should confront a child with a prior inconsistent statement only if she is recanting her entire account of an event. If you are impeaching a witness called by your adversary, confront the child with inconsistencies in a delicate and respectful way.

Before plunging into the facts with a child on direct examination, you must first establish that the child is competent to testify. The cardinal rule for establishing the competency of a child witness is to keep your questions simple. It is an unspoken rule that children under the age of four or five generally are not competent to testify. However, a mature four-year-old may have a better understanding of the difference between the truth and a lie than an immature six-year-old. As a result, it is best to assess the competency of your proposed witness before calling her to the stand.

For those advocating the credibility of the child witness, jury selection provides the first opportunity to dispel the myth that young children are natural liars. The theme of your questions should be that, although children may shade the truth about their homework or stealing cookies, they are not likely to have the foresight, planning, motive, or cognitive thought processes necessary to lie about experiencing a traumatic or stressful event, and then to follow through with consistent disclosure and testimony. Illustrate this point through your questioning of jurors who are parents or have substantial experience working with children.

Closing argument provides the best platform to hammer your theme that children, and young children especially, lack the maturity and the motivation to spin credible and complex lies.

Your approach to a child witness must be substantially different from that used when you deal with adults. By using the methods described in this article, you can better help the child to become confident in a courtroom setting, and she quickly can become your star witness.

Colin H. Murray practices with Baker & McKenzie in San Diego, California. He can be reached at

For More Information About the Section of Litigation

- This article is an abridged and edited version of one that originally appeared on page 16 of Litigation, Spring 2005 (31:3).

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