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SWEARING IN TOMMY: SHOULD CHILDREN TESTIFY?

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The wood was smooth and cold against the back of his legs. Tommy sat slouched, his feet dangling above the marble floor, unable to reach even with his tiptoes, on the courtroom bench. He grasped a red plastic truck between sweaty fingers and, his head hung low, shuffled his eyes back and forth, quickly so no one would see, between Mom and Dad. They stood on the other side of the knee-high gate with men in black suits and ties, arguing softly, but he could see the daggers they let out silently with their whispers. Mom pointed an angry finger at him. Then Dad did. A woman hurried through the courtroom, carrying an armful of files. One page slipped from the top, but she kept brushing by. Then the little wooden door in the corner swung open, and a giant man in black stepped out with a police officer. "Tommy, why don't you come talk to me," said the stranger, "and we'll have a little chat." The officer tugged him from his bench, fingers clutching into his shoulder, and dragged him to the stranger. "Go get him, son," said Dad. "Love you," said Mom. The stranger squinted his eyes, scrutinizing the boy.

Have you ever struggled over whether your child can, or should, testify? And what happens to him if he does? Can you ever guarantee the words out of her mouth, to the judge, are what she tells you at home? And what if your spouse planted thoughts? How can you protect your rights? Can you?

You are not alone. Here are some suggestions.

When children come to court to testify, they come as fact witnesses, preference witnesses, or both. These are the two forms of children's testimony, fact testimony and preference testimony. Fact testimony refers to the child's first hand knowledge of events: what the child saw, heard, felt, did, and so forth. This form of testimony is admissible, absent a statute or court rule to the contrary, in all family cases where facts are in dispute. Preference testimony refers to the child's wishes for a particular custody outcome in the case, i.e. whether the child wants to live with Mom, Dad or both. This form of testimony is limited in most states to child custody cases.

Fact Testimony: Who, What, Where, When, How

Each state legal system makes special provisions for handling children in the courtroom. The provisions range from special family courts, the first one adopted in Illinois in 1899, to special evidentiary rules for taking child testimony during trial, particularly over sensitive issues like neglect and sexual abuse. Unfortunately, when dealing with these issues, the child will often be the only witness with firsthand knowledge of the events in dispute. Therefore, the child's testimony is crucial to a proper presentation of the case, and to putting the abusive party to punishment. However, each parent's constitutional and statutory trial rights, like the constitutional right to confrontation, do not evaporate merely when a child testifies. Accordingly, to facilitate child testimony but accommodate parent's rights, a court will allow a child to testify with certain safeguards, but not shrouded in secrecy.

There is a common misconception that children have to be a certain age to testify. At one time, this was true. Research suggested that children were vulnerable to making serious errors in their testimony; therefore, there was little to no guarantee of trustworthiness, the touchstone for evidence admissibility. Children under a certain age, usually seven or fourteen years old, could not testify.

In the majority of states, however, this is no longer true. Additional research and increasing reports of child abuse and neglect, among other things, prompted reform. Most states have dropped their child testimony bans in favor of rules that allow children to testify while allowing the fact-finder to afford the testimony as much (or as little) weight as deemed appropriate considering the child's age, testimony and demeanor. Even in the minority of states that do require children to be a certain age to testify, the requirement is usually a presumption, not a bright-line rule banning testimony.

Evidentiary rules now presume witnesses are competent. A competent witness meets the minimum requirements to testify. In general, unless the judge finds after questioning the person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness.

In most states, special evidentiary rules apply to children witnesses. The judge may determine whether the child is competent in a pretrial motion, in chambers and off the record, or in front of the jury in open court. See, e.g., People v Houghtelling, 183 Mich App 805; 455 NW2d 440 (1990). The court may converse with the child in a dialogue that appears friendly and light-hearted to gauge whether the child knows the difference between right and wrong, knows the consequences of telling a lie, knows not to tell a lie, and can recall the events in dispute. For example, the judge may ask the child to describe her fifth birthday party to determine whether she remembers events from two years ago, around the time of the events in dispute. The judge must conclude that the child has the capacity to observe, remember and communicate what she observed and the capacity and sense of obligation to testify truthfully and understandably about what she observed. Using this method, even witnesses as young as four have testified. See, e.g., People v Kasben, 158 Mich App 252; 404 NW2d 723 (1987).

Even if the child is competent to give fact testimony, state rules may require the court to take additional precautions (or the parent offering the testimony to jump additional hurtles) before the child can testify. For example, in divorce cases in Vermont, the judge must appoint an attorney for the child before the child is called as a witness. 15 VSA § 594. The child may only serve as a witness if the judge finds, after a hearing on the issue, that (1) the child's testimony is necessary to assist the fact-finder in determining the issues before it; (2) the probative value of the child's testimony outweighs the potential detriment to the child; and (3) the evidence sought is not reasonably available by other means. Id. The competency examination may occur with the judge in chambers, with any other persons attending at the judge's discretion, and a court reporter must record it. Id.

Procedural rules for state courts are a matter of state law, so be sure to check your state's laws for the child testimony precautions applicable to your case.

As you can imagine, not all parents embrace the idea of their children testifying about personal, embarrassing and/or traumatic events in open court, on the record, before a judge and/or jury. They object, pointing out the re-lived trauma their children suffer, red-faced or timid in the witness box. For example, in the Michigan case Breneman v Breneman, 92 Mich App 336; 284 NW2d 804 (1979), the trial court permitted an eleven year old boy to testify about several incidents of abuse from his mother and stepfather, who struck him with a paddle, punched him in the nose and knocked him to the floor. The mother objected and, on appeal, argued that the trial court committed reversible error by allowing the child to testify because "in a child custody dispute, the child should not be subjected to the additional pain of having to testify in open court and be cross-examined as he would be if he were a witness in ordinary criminal or civil litigation." Id. The appellate court disagreed, holding that those concerns only apply to preference testimony; for fact testimony, "as a general rule an 11-year-old child is competent to testify . . . unless the court finds after questioning [him] hat he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably[.]" Id. This boy did.

Moreover, the policy considerations (protecting children from having to choose between parents) did not apply when the allegation is physical abuse and the goal to protect the child from further abuse.

Preference Testimony: Pick a Parent

But what about sitting little Billy or Susie up in the witness box, barely able to see past the ledge, the judge peering down, the attorneys scribbling furiously questions to ask, to find out which parent is preferred? (Enter sinking hearts and that dread felt in the stomach here.) Should that child be sworn to testify truthfully, then forced to look his parents in the eyes and recite, to the whole world and these strangers in the courtroom, which parent he likes more? Seems utterly ridiculously, for several reasons.

First, from a parent's perspective, no parent would let his child go through the pain of having to pick one parent over the other, of having to disappoint one, of having to twist and turn in the witness box and with a eeny meeny miney moe pick where he will live.

Second, from a legal perspective, desires (where one would like to be) are not the stuff of traditional testimony. Traditional testimony focuses on firsthand knowledge, experience, of past events: what the witness saw, heard, felt, did, smelled, tasted, etc. These are concrete facts and, to a certain extent, when corroborated or offered from trusty sources to be relied upon. Desires, however, are transient and speculative. They do not feel as sturdy, as reliable, because by their very nature they change. In fact, evidentiary rules exclude speculative evidence for this reason.

Nevertheless, child custody statutes routinely require the fact-finder to consider the child's preferences. Despite their speculative nature, preferences are important to the case - and to parents' rights. Therefore, state rules for preference testimony strike a balance between protecting children from the pain of having to choose and ensuring their preference testimony is reliable, or as reliable as can be.

In Oklahoma, for example, for any proceeding to determine custody or visitation, the judge must determine whether permitting the child to state a preference is in the child's best interests.43 Okl St § 113.

Furthermore, if the judge determines that the child is of a sufficient age to form an intelligent opinion, the judge must consider the preference in rendering the custody or visitation decision. Id. If the judge decides against the preference, the judge must make specific finds of fact, on the record, to support the judge's decision. Id. There is no bright-line rule as to what age is a "sufficient age," but the law does provide a rebuttable presumption that children age twelve and older are of sufficient age. Id.

Even though the preference may be dispositive, the judge need not allow the parents to cross-examine the child, or even listen to the child. The law permits the judge to elicit the child's preference testimony in chambers without the parents or other parties present. Id. However, if attorneys are not allowed to be present too, the judge shall state, on the record, the reasons for their exclusion, and at either party's request the just shall order a record made of the in chambers testimony. Id.

By comparison, Minnesota judges must allow parents' attorneys to be present if the judge decides to elicit the child's preference testimony in chambers. Minn Stat § 518.166. The judge must also allow the attorneys to ask the child questions, either directly or through the judge. Unless waived, each parent is entitled to a copy of the in chambers transcript for use in open court. Id.

The process is similar in Utah, but the court need not elicit the child's preference at all. Rather, the judge may inquire of the child and take into consideration the child's desires regarding future custody or visitation, but the expressed desires are not controlling. Utah Code Ann 30-3-10. The judge must give added weight to desires from children age sixteen or older, but not controlling weight. Id. The judge may ask the parents' permission before speaking to the child, but need not get their permission if the judge determines an in camera interview is the only method to elicit the child's actual preference testimony. Id.

In camera interviews are, by their nature, secretive. Sure, a court reporter may record the discussion for parents' review, but not being present, to watch their child, to hear the questioner's tone and see the child's reaction, bothers parents to no end. That is a normal reaction when custody rights are at stake. It is difficult, if not impossible, to interpret the import of statements in a transcript without having live testimony to compare. That is one of the reasons appellate courts defer to trial courts' findings of facts and credibility determinations. That sense of control over the case - of knowing who said what when, why and how - evaporates. The child could say anything. Or precisely what the parent wants.

Child Testimony Checklist

So, is it worth the gamble? Consider the following, and discuss them with your attorney if you have one, as you decide whether your child should testify:

1. A child is far more susceptible to post-traumatic stress and re-victimization than an adult, according to the American Academy of Pediatrics. You should have a professional evaluate your child for emotional and psychological issues that giving testimony may aggravate or accelerate. Be sure to include the child's other parent or guardian in making this decision to avoid allegations that you "doctored up" the child's testimony and/or violated a legal custody order.

2. Talk with your child about events around the time of the events in dispute to determine whether the child has a sufficient mental capacity to testify truthfully and accurately about the events. It may be a good idea to include the opposing party in this discussion, too, or at least disclose it in writing, to avoid any allegations that you influenced the child.

3. Ask if you can see where an in camera interview will occur. Is the judge's office "kid friendly" or old, stuffy and scary? Similarly, is the judge nice or ruthless? Could you see your child feeling comfortable enough with the judge to tell the truth? Or will your child be frightened?

4. Are there other ways to get to the same information? For example, will your judge consider a custody recommendation and report from a family therapist or a guardian ad litem? Can other witnesses testify about the same events as your child? Or is your child the only witness?

5. Ask if you can participate. This may mean preparing questions for your attorney to ask on cross-examination for fact testimony or attending the in camera interview for preference testimony. Consider whether your attendance will encourage or discourage your child to testify fully and honestly.

6. Talk with your child about the possibility of testifying. Does he get excited? Scared? Indifferent? Does the child understand the difference between the truth and a lie, the importance of telling the truth and the consequences of telling a lie? Do not quiz your child, lest you influence the testimony.

7. Read the testimony statutes and court rules in your state thoroughly. Consult an attorney for assistance. Do the laws in your state afford additional protections to children? These may include live testimony behind a screen (for sensitive topics like abuse), use of dolls, special closed court sessions for the child's testimony, attorney appointment to represent the child, and so forth. Assess each of these options for use in your case.

8. How certain are you that your child will tell the judge, or jury, precisely what he tells you at home?

9. Do you have to file a motion or attend a pre-testimony hearing, or are there other court rules to abide, before your child can testify? Do not just show up with your child and expect the judge to let him testify.

10. Does your child express a willingness to testify? If not, why not?

Your child's testimony could be the proverbial "smoking gun" evidence - for you or against you. Your child could reveal the facts just as you want to prove them. Your child could also reveal, squirming in the judge's chambers with a timid expression, just how afraid he is to pick a parent, and just how insensitive you are to insist he do so. What will happen in your case? Only you, and your attorney, after a thorough assessment can surmise that. Although your child can testify, it's up to you to decide whether he should.

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