Making the Courtroom User Friendly for the Child in

							Making the Courtroom User
  Friendly for the Child in
Sexual Assault Prosecutions



           Nancy Lamb
    Assistant District Attorney
        Elizabeth City, NC
           252-331-4743
       NBLADA@aol.com
“ Preparing does not mean…children should memorize a
  script or be instructed as to the correct answers. To
  prepare a child for court is merely to help the child be
  ready for the experience of testifying. Preparation
  involves familiarizing a child with what will occur during
  court proceedings and helping him or her be ready for
  the experience emotionally, physically and mentally. It
  does not involve telling a child what to say.”

     Lipovsky and Stern (1997).
     Preparing Children for Court: An Interdisciplinary
     View, 2 (2) Child Maltreatment 150-163.
    CREATING A POSITIVE
      EXPERIENCE FOR
     CHILDREN IN COURT


 MINIMIZING STRESS FOR THE CHILD
  AND FAMILY

 MINIMIZING STRESS CREATED BY
  THE CRIMINAL JUSTICE SYSTEM
  PROCESS
    STRESS FACTORS FOR KIDS
    AND FAMILIES

• Multiple testimonies
• Fear of public exposure-”talking in front of
  all those people”
• Facing the defendant
• Cross examination
• Fear of the court process; the “unknown”
• Embarrassment, shame about topic
• Long pretrial delays
SYSTEM INDUCED STRESS
FACTORS
• Developmentally inappropriate practices
  used in the courtroom
• Out of home placement
• Sequestration of child’s support
  witnesses
• Lack of corroborative evidence—puts
  more weight on child’s testimony
• Courtrooms are not “child friendly” and
  our efforts to make them so are often
  met with resistance
  INTERVENTIONS WITH CHILD AND
FAMILY THAT MAY CREATE A POSITIVE
            OUTCOME

 COURT PREPARATION

BOLSTERING PARENTAL ATTITUDES ABOUT
 COURT BEING THE “RIGHT THING TO DO”
 IMPROVING MATERNAL SUPPORT IN
    INTRAFAMILY CASES
 ATTENDING TO CHARACTERISTICS OF
CHILD
INTERVENTIONS DIRECTED TOWARDS
CRIMINAL JUSTICE SYSTEM THAT MAY
   CREATE A POSITIVE OUTCOME

 EDUCATION
 CORROBORATION OF CHILD’S STATEMENT
REDUCTION OF NEED FOR MULTIPLE
 TESTIMONIES
USE OF INNOVATIVE PRACTICES WHEN
 FACE TO FACE CONFRONTATION IS
 ADVERSE TO CHILD’S WELL-BEING
 EDUCATION OF THE JUDICIARY
Goals of court preparation




• Maximize child’s ability to be
  perceived as credible
Goals of court preparation




• Improve child’s ability to
  answer questions accurately,
  completely and truthfully
Goals of court preparation




• Reduce child’s anxiety
Goals of court preparation




• Minimize chances child will
  suffer negative consequences
  regardless of trial outcome
What is the child witness
being prepared for?
• Facing the defendant
• Qualifying as competent
• Testifying
  • Direct Exam
  • Cross Exam
  • Redirect Exam
What is the child witness
being prepared for?


•Staying calm enough
 to tend to all of these
 tasks!!!
                How?
• Get to know the child victim as a person,
  not just as a victim

  • A one time meeting will not
    accomplish this

  • The more comfortable you make the
    child with you, the less anxious the
    child will be when testifying…less
    anxiety=more detail
                 How?
• Spend time discussing the “before” and the
  “after”---this can be just as important as the
  “during”….details win child abuse cases
• Jurors need to understand the abuse
  experience from the child’s perspective in
  order to understand it at all: merely having
  the child describe the acts of abuse will not
  accomplish this
• Lack of understanding makes it easier for
  jurors to believe the abuse did not happen or
  that the state has not proven the case beyond
  a reasonable doubt:
                 How?
• Be as frank with the child as possible
  depending on age about what questions will
  be asked regarding why child did not tell
  anyone or any other difficult issues that you
  expect the child will be questioned about. An
  explanation given to jurors from the child’s
  perspective is more powerful and credible
  than anything an expert could say on the
  subject
            Such as….
• Delayed disclosure-why didn’t you tell?
• Ongoing abuse—wasn’t there a way out?
• Putting self in “harm’s way”-why did you keep
  going around him?
• Opportunities to disclose to trusted adults that
  weren’t taken
• Partial or incomplete disclosures; denials
• Recanting
• Inconsistencies between initial disclosures
  and testimony
More practical tips on talking to kids

 • Be sensitive to child’s schedule during
   court prep process
 • Child friendly setting
 • Introduce yourself to child first
 • Talk to the child alone
 • Never put your desk between you and
   child
 • Explain your job simply
More practical tips on talking to kids

  • Give as much control as you can to the
    child
  • Use child’s language
  • Keep some markers, paper available
  • Ask child’s permission to talk again later
  • Never make any promise you can’t keep
What is the child witness
being prepared for?

• Facing the defendant
• Qualifying as competent
• Testifying
  • Direct Exam
  • Cross Exam
  • Redirect Exam
Testifying before the defendant
• Take into account the child’s feelings about the
  defendant and about the impact of testifying
  against the defendant
   • Fear                 -Reluctance
   • Love                 -Anger
   • Hate                 -Fear of
                            consequences
   • Ambivalence

     • Talk about these feelings before the child
       testifies; seek help if necessary
     • Be honest with the child about possibility
       of a not guilty verdict
     QUALIFYING AS A WITNESS:
       COMPETENCY ISSUES

UNDER FEDERAL RULES, AND IN MANY JURISDICTIONS,
ALL WITNESSES INCLUDING CHILDREN ARE PRESUMED
COMPETENT
CONTEST DEFENSE REQUEST FOR COMPETENCY
HEARING BY WRITTEN MOTION
REQUEST HEARING BE HELD OUTSIDE JURY’S PRESENCE

REQUEST QUESTIONS BE DEVELOPMENTALLY
APPROPRIATE, AND UNRELATED TO ANY TRIAL ISSUES
COMPONENTS OF COMPETENCY


 Capacity to observe
 Sufficient intelligence
 Adequate memory
 Ability to communicate
 Duty to be truthful
 Appreciate obligation to tell truth
What the child needs
 to know before the
      court date
                  Who?
•   Judge              •   Clerk
•   Jury               •   Court reporter
•   Prosecutor         •   Spectators
•   Defense attorney   •   Victim advocates
•   Witness            •   Investigator
•   Bailiff            •   Other support people
                       •   Defendant’s
                           supporters
              AND…….
          THE DEFENDANT
Where will he be?
Can he touch me?
Can he get up?
Can he talk to me?
Do I have to talk to him?
Do I have to look at him?
What if he….?
  Child should be prepared for any in
  court identification process
            WHAT???
•   Courtroom items
•   Taking the oath
•   Handling objections
•   Competency hearing
•   Using exhibits/drawings or any item of
    evidence and accompanying foundation
    questions
               What?
• What should I wear?
• What if I need to…?
• What happens first, then what happens
  after that?
• What questions will you ask me?
• What questions will the other lawyer ask
  me?
 When do I go to court?

  COURT SCHEDULING VS TIMING OF
  TESTIMONY

continuances       naptime
court sessions     school hours
court hours         extended waiting
interruptions
          Where do I go?
•   Where to report
•   Where is the waiting area
•   Where does everyone sit in the court
•   Where do I sit after I testify
•   Where is my support person:
    separation issues
     • Sequestration orders
     • Back up support person
         How…?
How do I act?
• Appropriate courtroom behavior:
  jurors are always watching


How do I convince the jury to
 believe me?
 --Follow the ground rules
Ground rules for kids when testifying
• Your only job is to tell the truth—to tell only what
  really happened
• The truthful answer sometimes is “I don’t know”,
  “I don’t remember” or “I don’t understand”
• Never guess the answer to a question
• Only talk to the lawyers and the judge when you
  are on the witness stand
• Just answer the question asked
• You don’t have to look at the defendant
• It’s ok to cry—no one will be mad at you
• It’s ok to ask the lawyer to repeat the question
Third party involvement in
preparing kids for court
• Therapist
• Non-offending caregiver
• Designated support person
Non-offending caregiver
• Education about court process and
  time frames
• Explanation of importance of child’s
  need to be physically and
  emotionally ready for trial
• Emphasis on maintaining
  “normalcy” in child’s daily life which
  includes no discussion of abuse
  experience unless child brings it up
Victim advocates
• Ideally court preparation should be a
  joint effort between prosecutor and
  victim advocate
• Victim advocate can conduct court
  orientation program such as kids court
  school
• Victim advocate and prosecutor should
  visit courtroom together
Victim advocates
• Victim advocate should be
  designated liaison between parents
  and prosecutor’s office
• Victim advocate should provide
  support and information to child
  and family throughout the process
   Court prep for attorneys
• Educate yourself!!
  • Child development: some basic points
     • Young children are concrete, literal thinkers
       and stay so until about age 10 or 11
     • Young children are egocentric
     • Linguistics can present a major barrier for
       children because vocabulary expands faster
       than comprehension
     • Children do not fully understand space, time
       and distance concepts until early teen years
  PREPARING THE COURT
     FOR THE CHILD
   PRETRIAL MOTIONS
TO ADVOCATE FOR ALTERNATIVE TO
IN COURT FACE TO FACE TESTIMONY


TO USE A MODIFIED OATH
TO CLOSE COURTROOM
DURING CHILD’S TESTIMONY

TO USE INTERPRETER (IN
SOME CASES)

TO LIMIT OR DISALLOW
INTRODUCTION OF CERTAIN
EVIDENCE: motion in limine
Pre-trial motions: Why bother?
• Protect the victim
• Educate the judge
• Focus case on defendant’s acts
• Prevent inadmissible evidence from
  being introduced
• Prevent surprise defense evidence
• Force defense to commit to legal
  theories and factual defenses
Protecting the victim
• Courtroom environment: FRE 611

  • The court shall exercise reasonable control
    over the mode and order of interrogating
    witnesses and presenting evidence so as
    to: (1) make the interrogation and
    presentation effective for the ascertainment
    of the truth, and (2)avoid needless
    consumption of time, and (3) protect
    witnesses from harassment and
    embarrassment
Protecting the victim
• Change furniture arrangement so child
  does not have to look at defendant
• Permit support person to be with child if
  necessary, such as having young child
  sit on lap or hold hand
• Prevent defense attorney from standing
  too close
• Prohibit suggestive/developmentally
  inappropriate questions during cross
Protecting the victim
• Motions in limine
  • Rape shield
     • Defense must give advance notice
       of intent to inquire about prior
       sexual acts
     • Prosecutor should always make a
       “blanket” rape shield motion in
       cases where same may be an
       issue, pre-trial, before jury selection
Alternative to face to
face testimony:
closed circuit TV
MECHANICS OF USING CLOSED
    CIRCUIT TESTIMONY



   First inquiry: Is it allowed by
   state constitution or statute
     (or specifically barred)?
MECHANICS OF USING CLOSED
    CIRCUIT TESTIMONY

     What is the Federal\State
constitutional authority allowing use
of remote testimony without face to
         face confrontation?

  Coy v. Iowa, 487 US 1012 (1988)
 Maryland v. Craig, 497 US 836 (1990)
 CLOSED CIRCUIT TELEVISION



            Advantages
More relaxed atmosphere, which arguably
enhances child’s ability to attend to task
          of testifying truthfully


Severely traumatized child may be unable
   to testify in defendant’s presence
  CLOSED CIRCUIT TELEVISION

           Disadvantages

 •Televised image of child arguably not as
effective as live testimony: makes it seem
   “not real” and thus may be easier to
       rationalize a not guilty verdict
  • May raise unreasonable expectations
   about the necessity of using cct in all
            child abuse cases
MECHANICS OF USING CLOSED
    CIRCUIT TESTIMONY


  The court must determine, based
  on the evidence presented, that
  remote testimony is “necessary”
    and must make case-specific
          findings of fact
The Findings Of Fact Must Address
          These Issues



 IS THE CHILD’S TRAUMA IS CAUSED
   SPECIFICALLY BY DEFENDANT’S
  PRESENCE IN THE COURTROOM?
     (NOT BY THE COURTROOM,
           GENERALLY)
The Findings Of Fact Must Address These
                 Issues



   THE EMOTIONAL DISTRESSTHAT
   WILL BE SUFFERED BY THE CHILD
   IN THE PRESENCE OF THE
   DEFENDANT IS MORE THAN MERE
   NERVOUSNESS OR EXCITEMENT OR
   SOME RELUCTANCE TO TESTIFY,
   AND WILL INTERFERE WITH THE
   CHILD’S ABILITY TO COMMUNICATE
HOW TO MAKE A CONSTITUTIONALLY
 SOUND SHOWING OF “NECESSITY”



       No prerequisites set forth in
         MARYLAND V. CRAIG


  No requirement that face to face
  confrontation occur first between the
  child and the defendant
  Evidence must be presented to
support the contention that remote
     testimony is necessary

  Expert testimony


   Testimony of person such as parent
    or other 3rd party who knows child


  Trial judge’s own observations of child
WHAT EVIDENCE DO COURTS CONSIDER
TO FIND “NECESSITY” TO CURTAIL FACE
      TO FACE CONFRONTATION ?

  • Child’s reaction to prior encounters
  with defendant
  • Threats made by defendant
   • Child’s reaction when testifying is
   discussed
   • Symptoms of stress as trial gets
   closer
  • Psychiatric diagnosis
PRESENTING THE
    CHILD’S
 TESTIMONY AT
     TRIAL
What is the child witness
being prepared for?
• Facing the defendant
• Qualifying as competent
• Testifying
  • Direct Exam
  • Cross Exam
  • Redirect Exam
Some tips for questioning kids
•   Use short sentences and simple words
•   Signal topic changes
•   Use child’s words
•   Avoid estimates
•   Don’t use legal terms
•   Don’t use pronouns—no “he” or “she”
•   No accusatory questions
•   Remember young kids think in literal,
    concrete terms
                 Talking To Children
    Age-Inappropriate            Developmentally Sensitive
       Language                         Language
 Long, Complex Questions:               Several Short questions:
 When you were with your Uncle        Where did your Mom take you
 in the bedroom of the blue         that day?    Who was there?
 house your Mom took you to,           What room were you in?
 what did he do to you?                   What happened?


 Passive Voice:                         Active Voice:
Were you touched by him?                Did he touch you?
 Confusing Pronouns:                   Clear Use Of Names:
What did she do with them?           What did Mary do with
                                     Bill and Jane?
  Double Negatives:              Single Negatives:
Didn’t Mom tell you not to   Did Mom tell you not to
go there?                    to go there?

  Multi-Syllable Words:         Short Words:
     Identify                    Point to……
   Complex Verbs:                Simple Verbs:
 It might have been               Was it……

       Hypothetical:                Direct:
 If you want a break, then     Are you tired? Do
 let me know.                  you need a break?
HANDBOOK ON QUESTIONING
  CHILDREN: A LINGUISTIC
 PERSPECTIVE, 2d EDITION
   ANNE GRAFFAM WALKER
ABA CENTER ON CHILDREN AND
         THE LAW
 DIRECT EXAM: A CONVERSATION
  BETWEEN YOU AND THE CHILD

 Try to schedule child to testify at time of day
  they will be most alert and least distracted
 Eliminate distractions
     No moveable chair
     Microphone out of reach
     Have water and tissues

 Begin with easy questions about child’s life
Fashion questions to show child is a “regular kid”


   Wordsmith your questions:
                   put one idea in each question
                   keep questions short and direct


 Use open-ended questions to elicit details of
  abuse—the child needs to tell in their own words
 Resist the urge to lead, although it is permissible
  to do so in many jurisdictions

 Resist the urge to interrupt the child—you can
  go back later and sort out as necessary

 If the defense is that the child made it up, elicit
  details about relationship between child and
  perpetrator before child told
 Elicit detail and use the child’s words
  Colors, taste, smell, sounds
      What child was thinking
      Positions
      Threats, promises
      Perpetrator’s actions after the assault

 Use drawings, dolls if necessary to clarify
  penetration


 Elicit testimony about who child told first and why
 If child did not tell right away, have child
  explain same in their own words


 Elicit testimony about child’s participation in
  court school program, if necessary


 Take your time
   PREPARING THE CHILD FOR
     CROSS EXAMINATION
CROSS EXAM TACTICS FOCUS ON
      A CHILD’S UNIQUE
      VULNERABILITIES
  INARTICULATENESS
  FEAR
  SUGGESTIBILITY (AGGRAVATED BY USE
   OF LEADING QUESTIONS)
  TRUST OF ADULTS AND DESIRE TO PLEASE
   THEM
PREPARATION STRATEGIES



 Explain what cross examination is
 and the purpose of it in simple, age-
        appropriate language
Role play cross examination using a non-
   threatening topic, with emphasis on
             following points:

  If you don’t know the answer, it is ok to say
  so---never ever guess at an answer

  If you don’t remember , it is ok to say so—
  never agree with something you do not really
  remember

  Do not try to answer a question that you do
  not understand
  What If Child Freezes

REQUEST RECESS
WHAT IS CHILD FEELING?
          Physically ok?
IF CHILD IS AFRAID OF DEFENDANT
    Safety reassurances
            Don’t look at him
            Use comforting object
            Rethink seating arrangement
    What If Child Freezes


USE OTHER MEDIA



JUDGE, CAN WE START AGAIN
TOMORROW?
  BASIC TENETS OF GOOD
      PREPARATION

GET TO KNOW THE CHILD

DO NOT ASSUME THE CHILD/FAMILY
UNDERSTANDS YOUR ROLE
EXAMINE YOUR EXPECTATIONS AND
ADJUST ACCORDINGLY

SPEAK IN AGE APPROPRIATE LANGUAGE
  BASIC TENETS OF GOOD
      PREPARATION

CLARIFY CHILD’S UNDERSTANDING OF HIS
ROLE IN PROCESS
LET CHILD HONESTLY KNOW WHAT TO EXPECT
REDUCE DUPLICATION OF EFFORT THROUGH
COORDINATION OF INVESTIGATIVE RESPONSE

MAKE SURE CHILD IS RECEIVING ALL
NECESSARY ASSISTANCE AVAILABLE WITHIN
CRIMINAL JUSTICE SYSTEM
  BASIC TENETS OF GOOD
      PREPARATION
LEARN TO CONTROL EMOTIONAL REACTIONS
GIVE THE CHILD SOME CONTROL THROUGH
CHOICES
DO NOT MAKE PROMISES YOU CANNOT KEEP
INITIATE AND MAINTAIN REGULAR CONTACT
WITH CHILD’S FAMILY/CARETAKER
BE COGNIZANT OF CHILD’S SPECIAL NEEDS
AND SCHEDULE
AFTER CHILD HAS TESTIFIED



  DEBRIEF CHILD

  ASK FOR FEEDBACK

  CLOSURE
SOME FINAL THOUGHTS…...
 Most children will not have to testify
  if we do a good job on the case on
  the front end
 One size does not fit all kids
 Jurors expect children to be given
  special treatment
 The courtroom is not a place for a
  child who is not prepared
    JUSTICE, THOUGH
    “
  DUE THE ACCUSED, IS
   DUE THE ACCUSER
         ALSO”

Snyder v. Massachusetts (1934) 291 U.S. 97