When Billy Is Called to Testify

From Washington Lawyer, November 2015

By Kathryn Alfisi of the Children’s Law Center

According to The Merriam-Webster Dictionary, the word “testimony” means “To talk and answer questions about something, especially in a court of law while formally promising that what you’re saying is true.”

While it sounds like a relatively easy thing to do, if you add an intimidating setting, unfamiliar legal procedures and jargon, and the possibility of having someone who caused you harm sitting close by you, testifying could become a stressful and anxiety-ridden experience for the average adult.

So what happens when the person testifying is a child?

Children are called to testify in a variety of settings. They may have been a witness to a violent crime, alleged victims of sexual or physical abuse or neglect, or the subject in a custody hearing. In these circumstances children are thrust into an adult world where they are unfamiliar with the language used and the role that they and others play in the legal proceedings. The resulting stress and trauma may not only affect children negatively, it could also make them unreliable witnesses and present lawyers with challenges.

To prevent this from happening, it’s important to properly prepare a child to testify, whether that means familiarizing him or her with the courtroom and the judge or explaining courtroom behavior and terms. It may make the difference between winning and losing a case.

The Supreme Court and Psychological Research

The issue of children and testimony made news this year when the U.S. Supreme Court made a decision in Ohio v. Clark regarding the admissibility of nontestimonial statements in
the context of a child abuse investigation.

In its decision, the Court held that the introduction at trial of statements made by a three-year-old boy to his teachers identifying his mother’s boyfriend as the source of his injuries did not violate the Sixth Amendment’s Confrontation Clause. The child did not testify at trial because the statements were not made with the primary purpose of creating evidence for prosecution.

Twenty-five years earlier in Maryland v. Craig, the Supreme Court ruled that a child could testify outside the presence of the defendant in a criminal case.

The defendant, Sandra Ann Craig, ran a kindergarten and preschool facility and was accused of sexually abusing a six-year-old child. A trial court allowed the alleged victim to testify through a one-way closed circuit television to avoid serious emotional stress for the child.

In its decision, the Supreme Court held that the Confrontation Clause of the Sixth Amendment, which guarantees criminal defendants the right to confront face-to-face the witnesses against them at trial, was not absolute. The state’s interest in protecting the physical and psychological well-being of children could be sufficiently significant to outweigh defendants’ right to face their accusers in court.

Aside from these Supreme Court cases, concerns about children and testimony were very much in the news in light of several daycare sex abuse incidents that occurred primarily in the 1980s and ’90s and involved child abuse charges against daycare providers.

In the wake of those incidents, there has been a great deal of research regarding the capacity of children to deal with the stressors associated with abuse and testifying, particularly their ability to tell the truth and accurately recall events under stress.

“Certainly, we would like children’s voices to be heard in the courtroom, but we also recognize the importance of making sure that we are getting an accurate version of what kids have experienced rather than things that are responses to the form of the question,” says Michael Fitzpatrick, director of the Children’s Law Center’s (CLC) Guardian ad Litem Program.

Barriers to Testifying

Testifying in any setting may be difficult for children, but it can be particularly traumatizing for those who are victims of abuse. The emotional trauma they experience can be especially hard to process because of their young age.

Children on the witness stand cope with these feelings in a handful of ways. Sometimes they can dissociate their feelings, separating normally related mental processes. This occurs when one group of feelings functions independently from the rest. In other words, they compartmentalize their feelings as a way to shield themselves from the duress of testifying. Other children who face the pressures of testifying experience psychogenic amnesia, where they are only able to gradually recall what they witnessed or experienced. In cases such as these, a child may have to undergo extensive counseling before he or she is prepared to take the stand.

In the District of Columbia, Michelle Dodge and the clinicians at her Takoma Park-based JMD Counseling and Therapeutic Services LLC offer counseling for children in foster care. Dodge, who previously conducted forensic child interviews while working at the U.S. Attorney’s Office, says people tend not to believe children’s testimony. Part of the problem, Dodge says, is that while a child may know that something happened, he or she may not be able to provide details or get the sequence of events correct.

“A lot of times children are being interviewed right after the trauma has occurred. As they start getting away from the trauma and start getting therapy, they may start remembering details. It’s not that they’re lying, it’s an issue of memory and functional development,” Dodge says.

In cases involving family members, children may feel conflicted, not wanting to get anybody into trouble or become separated from their family.

Dodge recalls a case she worked on involving a child who was molested by her grandfather. While some family members believed the child, others—like the child’s father—did not. “You
could see her changing the story as she went along because she wanted her father’s love and approval and wanted to do what would make him happy,” says Dodge.

In many cases children look up to adults and authority figures. When it comes to legal proceedings, children may also want to please the lawyer asking them questions.

“I think adults have to be very careful with the way they ask questions because children are very sensitive to emotional and facial cues. If someone is asking a question, but maybe they’re frowning or looking very stern, the child is more likely to try to figure out what is the right answer that this person wants,” Dodge says.

The unfamiliar courtroom setting and the formality of the legal process can also affect children’s testimony.

“They aren’t able to understand that the seriousness of the setting does not actually relate to the trouble that they have caused,” says CLC’s Fitzpatrick. “They have a hard time managing their emotions around the event of testifying and the formality of the setting.”

Language can also be a barrier, particularly in testimony pertaining to sexual abuse. Dodge says she once worked with a child who kept testifying that her father “put his ‘car in her garage’ because she didn’t know the words ‘penis’ and ‘vagina.'”

“Kids, depending on the grammar of how you ask the question, will understand it in different ways, which is why expert knowledge is needed,” Dodge says.

Preparing a Child to Take the Stand

Although there are many challenges associated with children testifying, there are also ways to address these hurdles. Building a trusting relationship with the child is one way. This applies to therapists and other mental health professionals as well as lawyers. Children are more likely to accurately disclose information if they feel comfortable with the adults asking them questions.

“With kids you often get much better information about their experiences if you can guide them to a place where they feel comfortable talking spontaneously about their experiences, their desires, and their wishes rather than getting them to respond to specific questions,” Fitzpatrick says.

Another way to make the process easier is to have the child become familiar with the testifying process, whether by explaining what kinds of questions will be asked of them, visiting the courtroom, or getting to know the prosecutor.

“With some children it may take a long time;it may take repeated visits to the courtroom and repeated explanations. I’ve seen when this doesn’t happen and those cases are generally lost,” Dodge says.

According to Dodge, attorneys are more willing to take that extra time if it’s a big, complex case, but they may not be able to if it’s something simpler like a misdemeanor domestic violence case.

There are also some logistical ways to make a child feel more relaxed and comfortable. For example, children may spend their time before testifying at a nearby park or the courthouse cafeteria, instead of in the courtroom hallway. In some cases a child may be able to testify on camera to speak directly to the judge in private.

“We have had cases where I’ve testified that if the child were to testify, let’s say, against [his or her] parent in an open courtroom, that child might experience long-lasting harm,” Dodge says.

Canines in Court

A more recent but growing trend is the use of highly trained dogs in a courtroom setting. Known as courthouse facility dogs, they are used in a variety of situations, including accompanying children to the witness stand when they testify. Studies have shown that dogs can offer a calming and soothing presence for a child who has experienced trauma.

The Courthouse Dogs Foundation, based in Washington state, is one organization hoping to educate the public and encourage the use of trained facility dogs in the courtroom.

Former prosecutor Ellen O’Neill-Stephens and veterinarian Celeste Walsen created the organization in 2004 after O’Neill-Stephens’ son received a service dog.

“I just thought, the legal system is pretty brutal, it really is, especially for crime victims and witnesses, the people who don’t want to be there,” O’Neill-Stephens says.

However, both those in the legal field and people working for assistance dog organizations were slow to warm up to the idea.

“When I first started doing this, the idea of dogs providing this assistance was considered to be outlandish. It’s nice to see that it’s being embraced so enthusiastically,” she adds. “We’ve been working away all these years, trying to get the word out and finally we’re succeeding.”

The Courthouse Dogs Foundation has more than 87 dogs working in 28 states as well as programs in Canada and Chile. The facility dogs are chosen for their calm temperament so that they can work in a high-stress environment and then undergo about two years of training before being placed.

“It really takes a special kind of dog to assist professionals in this field. They can be relied upon to participate or be present at these proceedings without disrupting them, which is a major concern for judges,” O’Neill-Stephens says.

“The defense counsel has a very legitimate concern that if the jury were to see the dog assisting a prosecution witness, it might find that person more likable or credible… So with that in mind, the judge needs to review several considerations [before allowing a dog into the proceedings].”

First,observations from a parent, a court interviewer, a police officer, or a prosecutor must demonstrate that there is a need for a dog. These observations should show that when a dog is present, the child is more relaxed, composed, and better able to engage in a discussion.

Once the need is demonstrated, measures need to be taken to reduce any potential prejudice to the defendant by having the dog assist the witness in the courtroom.

The Courthouse Dogs Foundation recommends that once there is a hearing and the judge weighs the cost-benefit analysis, the jury be informed. The organization also recommends that the dog and the witness settle in the witness box outside the presence of the jury and that the dog be concealed as much as possible.

Ultimately, getting the most accurate testimony out of a child requires a comfortable environment, accommodating judges, and patient attorneys on both sides of the aisle. The outcome of the case may depend on it. After all, justice isn’t properly served when testimony is flawed or incomplete.

Reach Kathryn Alfisi at [email protected].


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