The Child Providing Witness Testimony

Do children always have to testify in a trial?

In a criminal sexual conduct trial, the complaining witness is almost always a child or young adolescent. As a result, the prosecution will usually seek to let the child testify and tell his or her story. This testimony can be a powerful thing – the jury gets to see the victim tell their heart-wrenching story, arousing sympathy for the complaining witness and disgust for the defendant.

When the child-witness's testimony is strong (i.e., compelling, believable, and consistent), then the defense will try to discredit the child or outright exclude this testimony. One method for exclusion includes asking the trial judge to determine whether the child is competent. Competence requires the child witness to be of a age and maturity that allows him or her to appreciate the difference between a truth and a lie as well as understand a witness's duty to tell the truth. Federal Rule of Evidence 602 and the corresponding state rules require that a witness must testify from personal knowledge. If witnesses are unable to testify from personal knowledge because their memories have been altered or manipulated, they are said to be tainted. These tainted witnesses are not competent to testify at trial.

On the other hand, if a child-witness's testimony is weak (i.e., inconsistent, faulty, or disingenuous), the defense may decide to let the child testify and use the holes in his or her testimony to bolster the defendant's theory of the case. Ultimately, the decision whether to challenge or permit the child-witness to take the stand will depend on the particular child, the facts of the case, and the defensive theory.

Who do children consider authority figures?

Authority figures may include anxious parents and other adult family members, schoolteachers, forensic interviewers, police officials, and social worker therapists. It is important to identify a child's authority figures and determine whether these individuals have somehow manipulated the child or prompted the child fabricate his or her testimony. The defense should try to point out how an authority figure may influence a child-witness in order to cast doubt in the jury's mind.

What impact can a family member have on a child complainant?

Many adults who talk to children about suspected sexual abuse prior to the forensic interview say and do things that can profoundly and permanently affect the substance of a child's subsequent interviews. For instance, an adult may help the child nail down the details of the alleged abuse, thus planting false details or contorting the child's memory. In other words, misinformation provided by parents is an extremely powerful contaminant of children's testimony. Therefore, it is imperative for the defense team to bring these issues to light through expert testimony and vigorous cross-examination.

How do you deal with parents or family members of accusers when you know the accusations are false?

A defense attorney does not want to denigrate the parents of a child-accuser – this will immediately alienate the jury and cause them to sympathize and align with the complaining witness. Instead, it is best to guide the jurors toward the correct inferences while still allowing the jury to decide the issues for themselves. One way to do this is to explain the science of parental influences, including a discussion of how worried and anxious parents can make mountains out of molehills. This points out the flaws in the family's stories but still allows the jury to draw their own conclusions.

Can a witness be influenced by suggestive questioning from parents, interviewers or other individuals?

Any witness, especially a child, is susceptible to influence through coercive, suggestive, or even apparently benign questioning. An understanding of whether the questioning, interviews, interrogation or counseling of the child witness was unduly suggestive requires a highly nuanced inquiry into the atmosphere and demeanor surrounding verbal interactions between the child and adults.

How do the courts deal with suggestibility in child witness interviews?

The issue a trial judge must determine is whether the interviewing, questioning and counseling techniques used with the child witness were so suggestive that they had the capacity to substantially alter the child's recollections of events and thus compromise the reliability of the child's personal knowledge.

In fact, this is not a new concern for the judicial system. There are many other scientific and psychological propositions that courts have addressed in analogous contexts, including (1) the availability of battered women's syndrome as self-defense in criminal cases, (2) the determination of the reliability of hypnotically refreshed testimony, and (3) the consideration of testimony at pretrial hearings regarding taint. Determining whether a child has been unduly influenced is a derivative of these previously-recognized and analyzed scenarios.

Are there any factors that may undermine the neutrality of an interview with a child?

A wide consensus exists among experts, scholars, and practitioners concerning questioning and interrogation techniques with children. This research indicates that the factors listed below can undermine the neutrality of an interview and create undue suggestiveness:

  • Lack of investigatory independence
  • Pursuit by the interviewer of a preconceived notion of what happened
  • Lack of control for outside influences on the child's statements
  • Lack of control for cooperative conversationalist effects
  • Lack of control for source monitoring failures
  • Use of leading questions
  • Use of repeated questions

What must a defense team do if a child witness's memory has been tainted?

The defense team should always investigate and point out the possibility that the child witness's memory of events has been tainted by the questioning, interviewing, or counseling such that the witness is not competent under the rules of evidence. Where this is a legitimate issue, the defense should request and the court must conduct a taint hearing to ascertain whether the proposed witness is competent to testify from personal knowledge.

The focus of a taint hearing is determining the manner in which the child witness has been questioned and whether this questioning has had any impact on the witness's knowledge of events. By filing a motion for a taint hearing, the defense essentially asks a trial judge to consider whether the questioning or interviewing techniques employed by the investigators, counselors, parents, and others undermined the reliability of an alleged child victim's knowledge of events and subsequent statements.