Omar Bennett
Children can be witnesses or victims of crimes and may be ordered to testify in criminal cases. While this may seem unfair, the Sixth Amendment guarantees defendants in a criminal trial the right to confrontation. This means that a person's accusers must come to court and publicly state the allegations against the defendant, who has a right to cross-examine those witnesses. However, testifying can be stressful for children, and they may be unable to testify due to the risk of emotional trauma or mental infirmity. In such cases, judges may allow children to testify through a one-way camera or videotaped deposition. Judges also have the discretion to determine whether a child is competent to testify based on their age, maturity, and ability to understand the difference between truth and lies.
| Characteristics | Values |
|---|---|
| Age | Generally, children as young as three or four years old may qualify to testify, but some children are simply too young or too immature to be competent witnesses. |
| Competency | The judge will ask age-appropriate questions to find out if the child understands the importance of telling the truth. |
| Stress | The stress of the courtroom may make children unable to testify. |
| Trauma | There is a substantial likelihood that the child would suffer emotional trauma from testifying. |
| Mental Infirmity | The child suffers from a mental or other infirmity. |
| Defendant's Conduct | Conduct by the defendant or defense counsel causes the child to be unable to continue testifying. |
| Child's Wishes | The child's wishes will be considered in the case. |
| Child's Best Interest | The court will reach a decision based on what it finds to be in the child's best interest. |
| Child's Privacy | The court may enter a protective order for the purpose of protecting the privacy of the child. |
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What You'll Learn
Child's competency to testify
In the United States, children can be called to testify in criminal cases when they are witnesses or victims of crimes. The Sixth Amendment guarantees defendants in a criminal trial the "right to confrontation", meaning that the accused has the right to cross-examine their accusers.
However, testifying can be stressful for children, especially when it involves frightening or embarrassing events. Many states have laws designed to protect child witnesses, and children may be allowed to testify via a one-way camera or videotaped deposition to reduce stress. In some cases, children may be allowed to use anatomical dolls, puppets, drawings, or other demonstrative devices to assist in their testimony.
When determining whether a child is competent to testify, a judge may question the child in chambers or in a closed courtroom to assess their ability to recall events, communicate clearly, and understand the importance of telling the truth. Age-appropriate questions are asked to gauge the child's understanding, such as "If I said that my hair is purple, is that the truth or a lie?". Generally, the older the child, the more likely they are to be allowed to testify, as maturity and intelligence increase with age. However, there is no "magic number" or specific age criterion for a child's testimony to be considered credible.
In family court proceedings, such as child custody cases, the decision to allow a child's testimony varies by state. In New Jersey, judges have discretion over whether to allow a child's testimony and typically prefer to keep children out of court proceedings. On the other hand, North Carolina law requires the court to determine the child's competency to testify by assessing their age, discretion, and ability to understand the difference between truth and lies. The court will then consider the child's living preferences and best interests when making its final decision.
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Child's emotional trauma
Testifying in court can be stressful even for adults, and it can be especially traumatic for children, particularly when it involves testifying against a parent or guardian. The child's testimony is often critical to the prosecution's case, as the child may be the only witness to certain crimes, such as sexual abuse or neglect. However, testifying about such experiences in a room full of strangers can be frightening and embarrassing for a child.
Several studies have examined the emotional effects of testifying on child victims of sexual assault. The Denver study, for example, found that child sexual assault victims must cope not only with the emotional consequences of abuse but also with the potentially traumatizing effects of legal involvement and testifying in court. The study compared the behavioural disturbances of a group of testifiers to a matched control group of non-testifiers at three points after testimony: 3 months, 7 months, and after prosecution ended. It was found that testifiers at 7 months displayed greater behavioural disturbances than non-testifiers, especially if they took the stand multiple times, were deprived of maternal support, or could not corroborate their claims. However, once the prosecution ended, the adverse effects of testifying diminished.
In addition to the stress and trauma of testifying, children may also face consequences for testifying against a parent or guardian, such as losing the affection and positive attention of that parent. Children may also feel guilty about being the cause of their family's problems. Furthermore, children can be easily persuaded or threatened to say what an adult wants them to say, and they may be protective of their parents, even abusive ones. As such, it is important to consider the potential emotional trauma to a child when deciding whether to have them testify in court.
To mitigate the potential trauma, many states have laws and procedures in place to protect child witnesses. For example, children may be allowed to testify through a one-way camera or via a videotaped deposition to reduce the stress of facing the defendant in court. The court may also allow the use of anatomical dolls, puppets, drawings, or other demonstrative devices to assist the child in testifying. In some cases, a judge may order the family to receive counselling with a family therapist or psychologist, who can then serve as an expert witness to help the judge understand the situation without damaging the child-parent relationship.
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Child's mental infirmity
In the United States, the Sixth Amendment guarantees defendants in a criminal trial the "right to confrontation". This means that a person's accusers must come to court and publicly state the allegations against the defendant, who has a right to cross-examine those witnesses.
However, in the case of child witnesses, there are exceptions to this rule. If a child is suffering from a mental or other infirmity, the court may order that the child's deposition be taken and preserved by videotape. The child may also testify via closed-circuit television, where the defendant can see and cross-examine the child, but the child does not have to come face-to-face with them. This is to protect the child from potential emotional trauma and the stress of testifying in open court.
The determination of whether a child is competent to testify is usually made by a judge, who will question the child in their chambers or in a closed courtroom with attorneys present. The judge will ask age-appropriate questions to assess the child's ability to recall events, communicate clearly, and understand the importance of telling the truth.
In the case of a child suffering from a mental infirmity, the court may also consider expert testimony from mental health professionals to guide their decision on the child's competence to testify. This evaluation may address the child's ability to control their behaviour, recall events accurately, and understand the difference between the truth and a lie.
In some cases, the child's testimony may be restricted to specific matters specified by the court, and the court may also allow the use of anatomical dolls, puppets, drawings, or other demonstrative devices to assist the child in testifying.
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Defendant's conduct
The defendant's conduct can play a significant role in determining whether a child testifies and how the testimony is conducted. Here are some key considerations regarding the defendant's conduct:
- Right to confrontation: The Sixth Amendment of the U.S. Constitution guarantees defendants in a criminal trial the "right to confrontation." This means that the accused has the right to cross-examine their accusers and witnesses publicly. This right is essential to ensure that convictions are not based on secret accusations or untested evidence.
- Exploitation and forfeiture: Courts have ruled that defendants can forfeit their confrontation rights if they exploit a child's vulnerabilities. Exploitation includes selecting victims based on their age, vulnerability, or immaturity, as well as taking actions that increase their vulnerability. In such cases, the defendant's conduct may result in them losing the right to confront the child witness directly.
- Child's fear and emotional trauma: The defendant's conduct or presence may cause the child to fear testifying or suffer emotional trauma. In such cases, the court may order alternative arrangements, such as closed-circuit television or videotaped depositions, to protect the child's well-being while still allowing them to provide testimony.
- Defendant's influence on the child: The defendant's relationship with the child witness may also be a factor. Cajolery, bribery, or pleading with the child not to testify can be considered wrongdoing. Courts may find that such conduct, especially when there is a pre-existing relationship of trust or authority, justifies alternative arrangements for the child's testimony.
- Defendant's right to a fair trial: The defendant's conduct is not the only consideration. Their constitutional rights, such as the right to a fair trial, must also be respected. The relevance of the child's testimony and its potential impact on the proceedings will be scrutinized. If the child's testimony is deemed to prejudice the case unfairly, it may not be allowed.
- Credibility and reliability of child testimony: The defendant's conduct may also intersect with concerns about the credibility and reliability of child witnesses. Factors such as the child's emotional state, perception, interpretation of events, and susceptibility to influence can affect the weight given to their testimony. The defendant's attorney may challenge the reliability of the child's statements during cross-examination.
In summary, while the defendant's conduct is a crucial consideration in determining how and if a child testifies, it must be balanced against the defendant's constitutional rights and the overall fairness of the legal proceedings.
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Child's privacy
In the United States, children can be ordered to testify in criminal cases if they are witnesses or victims of crimes. This is because the Sixth Amendment guarantees defendants in a criminal trial the "right to confrontation". This means that a person's accusers must come to court and publicly state the allegations against the defendant, who has a right to cross-examine those witnesses.
However, this can be a stressful and traumatic process for children, especially when testifying against a parent or when the child is a victim of a sex crime. To protect child witnesses, judges may close the courtroom while a child testifies or allow children to testify through a one-way camera or via videotaped deposition. In some states, children may also be appointed counsel for support.
At the federal level and in most states, parents can be forced to testify against their children and vice versa in both civil and criminal proceedings. However, some states, including California, have explicitly reserved the power to create a parent-child testimonial privilege. A few states, such as Connecticut, Idaho, Massachusetts, Minnesota, and New York, have statutorily codified this privilege to varying degrees.
The lack of a parent-child privilege in most states has raised concerns about the privacy and sanctity of familial relationships. While the United States has not adopted such a privilege, several other countries, including France, Germany, and Sweden, recognize a familial privilege that protects relatives from being forced to testify against each other.
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Frequently asked questions
There is no "magic number" that judges can use to determine if a child's testimony is credible. Generally, the older the child, the more likely the court will allow them to testify. In the US, children as young as three or four may qualify to testify, but some are simply too immature to be competent witnesses.
In the US, the Sixth Amendment guarantees defendants in a criminal trial the "right to confrontation". This means that a person's accusers must come to court and publicly state the allegations against the defendant, who has a right to cross-examine those witnesses. In child custody cases, a child's testimony may be allowed if it is in their best interest.
Judges are trained to put child witnesses at ease and ask age-appropriate questions to find out if the child understands the importance of telling the truth. The judge will also consider if the child can recall events and communicate clearly.
Testifying can be stressful for children, especially when they have to relive frightening or embarrassing experiences in front of a courtroom full of strangers. There is also a risk that the child will feel guilty about causing family problems or lose the affection and attention of a parent.
