Document 74099

THANK YOU TO THE FOLLOWING:
The Supreme Court of Texas, Permanent Judicial Commission for Children, Youth
and Families chaired by the Honorable Eva Guzman, Texas Supreme Court Justice
Judicial Advisory Committee
Hon. Chris Oldner (Chairman)
416th District Court
Hon. Camile DuBose
38th District Court
Hon. Charles Montemayor
Bexar County Children’s Court
Hon. Scott Becker
219th District Court
Hon. Richard Garcia
Bexar County Children’s Court
Stakeholder Advisory Committee
Jason Isham
Program Director
Children’s Advocacy Center of Smith County
Stephanie McFarland
Assistant District Attorney
Office of the District Attorney, Travis County
Alana Minton
Assistant District Attorney
Office of the District Attorney, Tarrant County
Denise Oncken
Division Chief, Crimes Against Children
Office of the District Attorney, Harris County
Dan Powers
Clinical Director
Children’s Advocacy Center of Collin County
Michelle Voirin
Assistant District Attorney
Office of the District Attorney, McLennan County
Laura Wolf
Executive Director
CASA of Travis County
LaRu Woody
Assistant District Attorney
Office of the District Attorney, Travis County
Carrie Paschall
Forensic Interviewer
Office of the District Attorney, Tarrant County
 CEN
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F OR
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Special thanks to legal interns Tina Herrero (University of Texas School of
Law ’13) and Angie Von Pageler (Vanderbilt University Law School ’11) for
their assistance in researching and drafting this guide.
R
EJ
UDICIA
TEXAS CENTER
FOR THE
JUDICIARY
1
“Officers and Judges need no imaginative powers,
hope
knowledge of developmental psychology, training in
cognitive science, or expertise in social and cultural
anthropology to account for a child’s age. They simply
need the common sense to know that a 7-year-old is
not a 13-year-old and neither is an adult.” 1
INTRODUCTION
The American criminal and civil justice systems are designed to address
the grievances and transgressions of adults. Traditional courts of law
were not created with an eye for the special developmental needs
of children. An adult in the legal system may find it an intimidating
and anxiety-inducing experience. The spectrum of emotions felt by
a child who may have little, if any, understanding of the process is
only magnified.2 Furthermore, legal proceedings are often couched in
language beyond a child’s developmental ability to comprehend. 3
Testifying in court is particularly stressful for children. Research has
shown that the high level of stress and anxiety experienced by child
witnesses can decrease children’s ability and willingness to provide
complete and accurate evidence.4 The presence of certain factors
in the courtroom can either exacerbate or ameliorate the emotional
trauma of court involvement for child witnesses.5
2
3
Children’s increased stress, trauma and anxiety about the court
and neglect cases have resulted in an increased recognition that the
process may be attributed to the unique problems presented
involvement of child witnesses is crucial to achieve justice.13 As a
in crimes involving children. First, a lack of physical, cognitive
result, there is a pressing need to modify conventional, adult-oriented
and emotional development may make it difficult for the child
practices to protect and facilitate children’s involvement in judicial
to relate to or understand the proceedings. Second, the unique
proceedings, while preserving the integrity of the judicial system.
attributes of child sexual abuse, particularly where the perpetrator
is a parent, parent substitute or other adult having a trusting or
Judges are often faced with the difficult task of finding a balance
between protecting the rights of the accused while protecting the
loving relationship with the child, may result in a child reluctant to
cooperate with the process. Third, our limited understanding of
rights and needs of child victims. The challenge of maintaining
this delicate balance and responding meaningfully to the special
children’s capabilities as witnesses can make it difficult to meet them
on their level while fufilling needs they may not be able to articulate.6
The wave of preschool sexual abuse cases of the mid-1980s and
needs of child victims can be met through the development and
implementation of best practices. These practices can ensure that all
needs are being met for the child, while protecting the rights of the
7
1990s created a first and lasting impression of child witnesses. The
defendant and the integrity of the legal system. Small but significant
heightened awareness that followed the scandals quickly turned to
changes adopted in the courtroom will increase a child’s comfort
skepticism as many questioned the reliability of child testimony.
8
Studies have revealed that jurors do not see children as credible
9
witnesses, and perceive a child’s testimony to be less credible than
the exact same testimony given by an adult.10 One study involving
mock jurors revealed that individuals are sensitive to and unforgiving
of any inconsistency observed in the testimony of a young child,
in part because the inconsistency confirms the jurors’ stereotype
that young children are incapable of rendering accurate and
reliable testimony.11 Stereotypes of child witnesses are influential in
determining verdicts as well as jurors’ perceptions of child witnesses
and their testimony.12
In the last three decades, the presence of children in the courtroom
has vastly increased. In criminal courts, evidence gaps in child abuse
level and his ability to testify accurately, effectively promoting justice
in the courts while preserving the integrity of the process.
5
3
dream
2
CURRENT STATE OF TEXAS LAW
REGARDING CHILD-FRIENDLY
COURTROOMS
During the 82nd Legislative Session, lawmakers passed Senate Bill 578
amending the Code of Criminal Procedure to formally modify certain
procedures surrounding a child’s testimony in court.14 The modifications
regarding child testimony apply in any hearing or proceeding, other
than a case in which the child is the defendant.15
A.Age-Appropriate Proceedings
i.Competency
Perhaps the most significant problem facing child witnesses
is their lack of understanding of the legal system and
legal terminology. The use of complex language and legal
terminology confuses children and many adults. With
child witnesses, however, the absence of developmentally
appropriate questioning may both increase the child’s fear
of testifying and obstruct the truth-seeking goal of hearing
the child’s testimony. S.B. 578 establishes that a court
shall conduct proceedings surrounding a child’s testimony
in an age-appropriate manner.16 Children are often asked
complicated questions about truthfulness that even adults
might find difficult to understand.17 In order to ensure that
competent children are not disqualified from testifying,
6
7
competency questions can be phrased in age-appropriate
18
terms, free of linguistic complexity and legal jargon.
Whether a child witness is competent to testify is an issue
entrusted to the sound discretion of the trial judge.19 A judge
may modify competency requirements and competency
hearings to accommodate the best interests of the child in
two ways. First, a judge may eliminate the requirement of an
examination of the child to determine competency. Second,
a judge may alter the procedures of the competency hearing
to accommodate the child.
A child can frequently misinterpret simple language, which
in turn may lead to misinterpretation by the court.25 It is
possible that child witnesses may behave in ways that appear
inappropriate in context. Research indicates that when oaths
and competency questions are posed in a developmentally
appropriate manner, even very young children can articulate
the difference between a truth and a lie, and that it is “bad” to
lie in court.26 Often, decisions regarding a child’s competency
may vary greatly depending on the skills of the individual
questioning the child, who is likely to be an attorney or a
judge.27 These individuals may not have academic exposure
Examination Requirement
In 1895, the United States Supreme Court, in Wheeler v.
U.S., held that children could be competent witnesses
in criminal trials.20 Further, the Texas Rules of Evidence
provide that neither examination of a child witness nor a
preliminary hearing to determine the competency of a child
witness are required.21 Under the Texas rules, every person
is presumed qualified to be a witness. However, each case
must be determined on its own merits.22 Disqualification is
to weightier issues in the field of child development.
ii. Questioning
Article 38.074 of the Texas Code of Criminal Procedure
requires that questions be posed in a manner appropriate to
the child’s age in order to prevent intimidation or harassment.
It also requires that a child understand his right to notify the
court if the child is unable to understand any question, and
to have the question restated in a form that the child does
understand.28
appropriate only where the person appears not to possess
sufficient intellect to relate transactions with respect to which
Questioning child witnesses in a way they can understand
they are interrogated.23
is achievable. First, the use of simple grammar, in
Competency Hearing Procedures
conjunction with concrete words, will result in the child
better understanding the attorney’s questions, and increase
A judge also has the discretion to modify the procedures of
the likelihood of active participation in the judicial process.
a competency hearing to accommodate the best interests
Questions including multiple parts, negatives, double
of the child. The United States Supreme Court, in Kentucky
negatives and difficult vocabulary pose significant problems
v. Stincer, upheld the exclusion of the defendant from the
competency hearing when the seven and eight-year-old
victims became afraid to testify in his presence.24
for children and impede fact-finding.29 Research suggests
that eliminating the complex formatting of questions
improves comprehension among children and teenagers.30
8
9
Second, professionals interacting with child witnesses may
consider the impact of a child’s developmental abilities on
the way that they respond to questions. For example, young
children do not always organize their thoughts logically, often
include extraneous information, have a limited understanding
of space and time, 31 and have a limited attention span.32 Even
when children comprehend the questions, their responses
may not comport with notions of what is expected from
‘normal’ (i.e. adult) testimony.
Support Persons
Allowing the presence of a support person in the courtroom
when a child testifies may reduce feelings of fear and anxiety
experienced by the child. In addition, the presence of a known
and trusted person may calm the child and give him confidence
to provide accurate testimony. Research has found that the
presence and emotional support of an adult improves some
children’s capacity to testify and ability to do so effectively,
increases children’s responsiveness to questions during direct
B. A Child-Friendly Oath
examination at trial, and makes the child less likely to recant
S.B. 578 modifies the Code of Criminal Procedure to permit the
the identity of the perpetrator and the main actions of the
administration of a child-friendly oath. Witnesses must take an
perpetrator during defense questioning.37
oath or affirmation prior to testifying.33 Article 38.074 of the
Texas Code of Criminal Procedure provides that a court shall
administer an oath to a child in a manner that allows the child to
34
fully understand his duty to tell the truth.
In addition to recent changes in statute, courts throughout
Texas have made efforts to reduce the trauma of testifying for
child witnesses by allowing the presence of support persons.38
Appellate courts have permitted the presence of a Youth Victim
Prior to the 82nd Legislature, appellate courts in Texas have held
Volunteer next to the child during victim testimony 39 and the
that the requirement of an oath or affirmation is satisfied for a
presence of a guardian ad litem 15-20 feet behind the witness
child witness if the child is asked questions that are sufficient
chair.40
to impress the minor with the duty to be truthful, and the minor
Comfort Items
gives answers that are the equivalent of an oath or affirmation.35
Permitting a comfort item such as a stuffed animal, toy, or
C. Support Persons and Comfort Items
blanket may have a similar calming effect on the child witness
The Texas Code of Criminal Procedure has been amended to
during testimony. When children are afraid or anxious,
authorize the presence of support persons and comfort items in
holding a personal item may provide comfort, security, and
36
criminal cases.
Access to support persons, canine companions
confidence. Some research likens the presence and calming
and comfort items have been documented as beneficial, and this
effect of a comfort item to that of a parent; “[C]omforting objects…
practice has been successfully implemented in courts throughout
symbolically represent a little bit of a mother’s ability to soothe the
Texas.
child when frightened or nervous. Their presence helps children
calm themselves when parents are not immediately on hand.”41
10
11
In Sperling v. Texas, the Seventh Court of Appeals of Texas
child that the court finds to be just and appropriate, considering
allowed a child victim to hold a teddy bear while testifying
the interests of the child, the rights of the defendant, and any
as one of the “reasonable steps authorized by the Code of
other relevant factors.48 This broad language affords judges
Criminal Procedure in an effort to minimize the psychological,
a significant amount of discretion in assessing the needs of a
emotional and physical trauma of the child-victim caused by
particular witness while considering the intricacies of the case
her participation in the prosecution, including her face-to-face
at hand.
42
confrontation with appellant.”
Facility or “Therapy” Dogs
An innovative and increasingly implemented practice across
the nation permits the presence of dogs on the child’s lap or
on the floor by the child’s feet during testimony. Allowing a
canine companion to accompany a child into a courtroom has
“immediate and profound” effects.43 The mere presence of a
friendly dog has been documented to change the physiology of
the nervous child, facilitating more efficient testimony.44
Several counties across Texas have experience with the use of
dogs in child sexual abuse cases. The Johnson County Child
Advocacy Center in Cleburne has a dedicated team of volunteer
handlers and certified facility dogs.45 During a child rape case,
a Johnson County court allowed a yellow lab to accompany the
thirteen-year-old victim into the courtroom while she read her
victim impact statement at sentencing. The judge later reported
that he was “amazed at the effect of the dog on the child and
saw no difference between the therapy dog and allowing other
service animals in court, such as seeing-eye dogs.” 46 Bexar
County courts have also incorporated the help of facility dogs
with child victims.47
The final provision of the new legislation also grants a court the
discretion to establish any other conditions and limitations on a
13
B. Additional Resources for Law Enforcement, Judges, Prosecutors, Defense Attorneys and Attorneys Ad Litem
In addition to the information provided herein, and resources
which can be found at your local children’s advocacy center, the
3
RECOMMENDATIONS FOR
JUDGES AND MEMBERS OF
THE JUDICIAL SYSTEM
following supplemental resources are available:
• ABA approved Guidelines for the Fair Treatment of Child
Witnesses in Cases Where Child Abuse is Alleged (1985).
• ABA approved Judicial Excellence in Child Abuse and
Neglect Proceedings: Principles and Standards for Court
Organization, Judicial Selection and Assignment, Judicial
Researchers have identified factors that increase a child’s comfort level
in the courtroom, and consequently, the quality of her testimony.49
Administration and Judicial Education (2010).
• Guidelines on Justice in Matters involving Child Victims
and Witnesses of Crime, United Nations Economic and
Increased training for all professionals involved with child witnesses
Social Council (2005).
on topics such as child development, child testimony and advocating
for children will improve personal interactions with child witnesses.
• Model Law on Justice in Matters involving Child Victims
A second element involves altering certain procedures in the court
and Witnesses of Crime, United Nations Office on Drugs
process to suit the developmental and emotional needs of children,
and Crime, United Nations Children’s Fund (UNICEF) &
enhancing the child’s understanding of responsiveness to the court
International Bureau for Children’s Rights. Available at:
process.
http://www.unodc.org/documents/justice-and-prisonreform/Justice_in_matters...pdf
A. Increased Training For Professionals Who Interact With
Child Witnesses
Adequate, specialized training for professionals who come
in contact with child victims or witnesses of crime will both
improve professionals’ interactions with and understanding
of child witnesses. This ensures that child victims receive all
appropriate accommodations, and improves the child’s ability to
provide coherent testimony, while preserving the integrity of the
civil and criminal justice systems.
• Myers, John E.B. Child Witness Code (1996).
• Representing Texas Children in Abuse and Neglect Cases:
A Manual for Attorneys (1985).
• Resource Guidelines: Improving Court Practice in Child
Abuse & Neglect Cases, National Council on Juvenile and
Family Court Judges (1995).
• Texas Practice Guide for CPS Attorneys (DFPS 2009).
14
15
In addition, the following organizations provide information
on research, best practices and training opportunities:
• American Professional Society on the Abuse of Children
World Wide Web: http://www.apsac.org
• National Council of Juvenile and Family Court Judges,
Child Victim Model Court Project
World Wide Web: http://www.ncjfcj.org/content/
view/81/145
C. Procedural Considerations to Decrease Child Witnesses’ Fear
and Anxiety Regarding the Court Process
An adult involved in the legal system may find it an intimidating
and anxiety-inducing experience. The spectrum of emotions
felt by a child who may have little, if any, understanding of the
process is only magnified.50 Modifications of court procedures
and protocol designed to accommodate the needs of child
witnesses will enhance a child’s ability to testify, and will
• National Center for Missing and Exploited Children
World Wide Web: http://www.missingkids.com
• National Center for Prosecution of Child Abuse
minimize potential court-related trauma. In cases involving child
witnesses, judges have inherent authority to fashion procedures
and modify standard trial practices to accommodate the special
American Prosecutors Research Institute
needs of child witnesses.51 Changes in statute have established
World Wide Web: http://www.ndaa.org
a basis for judicial discretion to establish any other conditions
• National Children’s Alliance
World Wide Web: http://www.nationalchildrensalliance.org
and limitations on the taking of testimony of a child that the
court finds to be just and appropriate, considering the interests
of the child, the rights of the defendant, and any other relevant
• The Child Welfare Information Gateway
factors.52
World Wide Web: http://www.childwelfare.gov
• National Court Appointed Special Advocate (CASA)
Association
World Wide Web: http://www.nationalcasa.org
• National Criminal Justice Reference Service
World Wide Web: http://www.ncjrs.gov
• Juvenile Justice Clearinghouse
World Wide Web: http://www.ojjdp.gov
Considerations in accommodating the needs of child
witnesses may include:
(i) Prioritizing the docket and expediting cases with child
witnesses;
(ii) Utilizing leading questions on examination of a child
witness subject to the court’s discretion and control;
(iii) Scheduling testimony and recesses in accordance with the
developmental needs of the child;
• Office for Victims of Crime Resource Center
World Wide Web: http://www.ojp.usdoj.gov/ovc/
(iv) Allowing the use of and easy access to testimonial
aids during testimony; and
(v) Closing the courtroom when appropriate.
16
17
i. Prioritizing the Docket and Expediting Cases with Child
Witnesses
Delays and continuances may cause hardship to any
individual involved with the criminal or civil justice systems.
The hardship resulting from delays and continuances is
exacerbated when a child is involved in the proceedings.
Scholars note, “with the passage of time, any witness may
lose interest, face intimidation, or forget… When children
are witnesses, delays can have an even greater impact
on the outcome of a trial, for in addition to the typical
disadvantages of delays, there is the more compelling
consideration of the amount of stress a young victim [or
witness] can endure.” 53
consider the impact on a victim who is younger than
seventeen years of age or whose case involves family
violence.56 Timely resolution is equally important in civil
cases, particularly where a child awaits a determination of
parental rights. In these cases, prolonged waiting periods
simply exacerbate the child’s trauma and can hamper the
child’s adjustment to the new situation or environment.
Thus, in both criminal and civil cases, prioritizing the
docket and expediting cases with child witnesses may ease
the anxiety and stresses experienced by child witnesses
and prevent loss of memory which can negatively impact
the quality of a child’s testimony.
ii.Leading Questions and the Child Witness
Research focusing specifically on the impact of an
On the necessity of leading questions in interviewing
extended court experience on children in criminal cases
children, a publication by the U.S. Department of Justice
indicates that “a prolonged criminal court experience
and the National Institute of Justice concludes:
is a stressor for child sexual abuse victims that can be
detrimental to a child victim’s mental health.” 54 Negative
effects of repeated delays and continuances include
preventing the child witness from both emotional and
physical closure and “[limiting] the ability of victims to
receive justice when their memories, or those of other
witnesses, fade with the passage of time…” 55
The impact of extended trials on children is recognized
nationwide. Currently, almost half of the states, including
Texas, have adopted reforms that ensure an expedited
trial for cases involving a child witness. Articles 56.02 and
29.14 of the Texas Code of Criminal Procedure establish
that, where a continuance has been requested by the
defendant, the victim has the right to ask the court to
“In the best of all possible worlds, it would be advisable
not to ask children leading questions…but in the best of
all possible worlds, children are not sexually assaulted
in secrecy, and then bribed, threatened, or intimidated
not to talk about it. In the real world, where such
things do happen, leading questions may sometimes be
necessary…” 57
Traditionally, courts restrict the use of leading questions.58
However, the unique emotional and developmental
capabilities of children may sometimes lend themselves
to the use of leading questions to obtain meaningful
testimony.59 Both the Federal Rules of Evidence and Texas
courts recognize value in allowing leading questions in
18
19
cases involving child witnesses.
Studies on children’s memories show that children are
“less skillful than adults in reproducing events and using
free recall,” 60 and that “when there are errors in children’s
memories, they are more likely errors of omission (i.e.
forgetting) than commission (i.e. adding new or inaccurate
information).”
61
The use of leading questions may counter
the problem of poor recall in children and assist the child
in remembering and vocalizing the events that took
place. Moreover, leading questions may be permitted to
overcome a child’s difficulty testifying due to fear, timidity,
embarrassment, confusion or reluctance, and may help
court expounded on the use of leading questions with child
witnesses.65 The Flannery court noted that even though a
certain question was admittedly leading, “[The] rigor of the
rule forbidding the asking of such questions bears some
flexibility when dealing with a witness of tender years.” 66
iii. Scheduling Considerations and the Developmental Needs
of the Child
Courts may consider a child’s developmental needs in
scheduling court testimony in an effort to improve the
quality of the child’s testimony. This is expressly supported
by the Texas Code of Criminal Procedure.
the court obtain more meaningful testimony in situations
The stress of testifying can take a significant toll on the
where a child responds with a simple “yes” or “no.” 62
child. Scheduling testimony at a time of day when the
The Texas Rules of Evidence state that leading questions
may be used on the direct examination of a witness
when it is necessary to develop the testimony of the
witness. The legislative notes to Rule 611(c) further clarify
that leading questions may, in the court‘s discretion, be
child will be most alert and responsive will positively affect
the quality of the child’s testimony. For example, having a
child testify during naptime, mealtimes, or when he or she
has missed a nap can affect the child both behaviorally and
intellectually.
used on direct examination for: (1) preliminary matters;
Scheduling testimony in accordance with the child’s
(2) refreshing memory; and (3) questioning ignorant or
schedule is required by Article 38.074 of the Texas
illiterate persons or children.
Code of Criminal Procedure. The code provides that a
The use of leading questions in direct examination is
left to the sound discretion of the trial judge.63 There is
a history of providing an exception to the rule against
leading questions in cases dealing with child witnesses.
Courts throughout Texas have supported the use of
leading questions in direct examination in cases dealing
with child witnesses.64 In Flannery v. Texas, involving the
competency of a nine-year-old witness in a rape case, the
court shall “ensure that a child testifies only at a time
of day when the child is best able to understand the
questions and to undergo the proceedings without being
traumatized, including: 67
(a) Limiting the duration of the child’s testimony;
(b) Limiting the timing of the child’s testimony to the
child’s normal school hours; or
20
21
(c) Ordering a recess during the child’s testimony when
to assist child witnesses in their testimony. The use of
necessary for the energy, comfort, or attention span of the child.
testimonial aids has many documented advantages, and is
In criminal cases involving school-aged children, it may be
consequently finding its place in Texas courts.
best to schedule testimony during school hours. Children
Using testimonial aids such as anatomically correct dolls
who are required to testify after being in school all day
and drawings to facilitate a child’s testimony may help
may be tired and stressed from worrying about court while
the child overcome fear or inability to find the right
in school. Conversely, some research suggests that in civil
words to use. Particularly in cases of sexual abuse, young
cases involving a child in foster care, it may be best to
children have often never described their own body parts,
hold court hearings during the late afternoon or evening
especially not in the kind of detail required by a court.
to avoid exacerbating any difficulties a child may already
The use of anatomical dolls can facilitate and enhance
68
have in school.
Time limits may also be considered if it appears that
the attorneys are contemplating lengthy examinations.
Appropriate breaks can be anticipated to prevent the child
from becoming distracted or tired. In scheduling breaks, a
court may consider that a child’s sense of time differs from
that of an adult, such that “a child will experience a given
time period not according to its actual duration, measured
objectively by calendar and clock, but according to his
interviews and questioning of children.70 The Fourteenth
Court of Appeals of Texas commented on these
advantages, noting “the use of anatomically correct dolls
is beneficial when a child is testifying to clarify the witness’
explanations and to assure a common understanding
between a witness and a jury. The use of dolls is often
critical when the complainant witness is very young.” 71 A
publication by the National Institute of Justice notes that
anatomical dolls can also help to:
purely subjective feelings of impatience and frustration.” 69
a. Establish rapport and reduce stress. Most children relate
As such, it may be appropriate to schedule more frequent
well to dolls. They can have a calming effect and make
breaks or recesses during difficult questioning or
the interview room appear less formal and more child-
testimony.
oriented.
By considering the developmental needs of child witnesses
b. Reduce vocabulary problems. Interviewers can use
in scheduling cases, courts can easily improve the quality
the dolls to learn a child’s sexual vocabulary before
and coherence of their testimony.
questioning the child about the alleged abuse.
iv.Testimonial Aids
c. Show what may be difficult or embarrassing to say.
Courts may consider permitting the use of testimonial
Anatomical dolls can be an invaluable aid to children who
aids such as anatomically correct dolls and drawings
are unable or unwilling to verbalize what happened to them.
22
23
d. Enhance the quality of information. Dolls may help
public and press are not absolute, however, and the child’s
interviewers gather information without resorting to
interest may be balanced against the defendant’s right to
leading or protracted questioning to overcome children’s
an open proceeding.75
reluctance to describe sexual act.
Two primary concerns underlie arguments in favor of
e. Establish competency. Interviewers can use the dolls in
closing the courtroom in cases involving child victims
a general way to demonstrate the child’s mental capacity
or witnesses. First, the trauma potentially suffered by
72
and ability to communicate.
Anatomically correct dolls have been used in Texas courts
to facilitate child victims’ explanation of their abuse. For
example, in Texas v. Jensen, the Galveston County trial
court permitted a three-year-old sexual abuse victim to
use a doll to show where the defendant had touched her.73
The recorded benefits and successful use of anatomically
correct dolls supports the proposal that such devices may
be implemented by courts to aid child witness testimony.
v.Close the Courtroom When Appropriate to Decrease
the victim when relating the details of a sensitive crime
before the public, particularly when a child must describe
degrading or embarrassing acts. Second is the fear that
public exposure, whether in the courtroom or by the
media, may have a chilling effect on the willingness of
future victims to report such offenses and cooperate with
prosecution.
The United States Supreme Court, in Globe Newspaper
Co. v. Superior Court, upheld closing the courtroom to
spectators during a child’s testimony.76 The Court held
that where the state attempts to deny the right of access
the Fear and Embarrassment Experienced by the Child
to the public and the press in order to inhibit disclosure of
Witness
sensitive information, it must be shown that the denial is
This consideration addresses excluding persons from the
courtroom who are not necessary to the proceedings,
the defendant, or even the media in appropriate
circumstances, while the child victim or witness is
testifying. The court has the authority, in appropriate
cases, to make this determination, considering the need
to protect the child against the constitutional rights of
the defendant and the press. Under the United States
necessitated by a compelling government interest and is
narrowly tailored to serve that interest.77 The evaluation
must be made on a case-by-case basis on a showing that
the individual child will be traumatized by the presence
of the audience. The Court stated that safeguarding
the physical and psychological well being of a minor is
a compelling interest that may sometimes override the
public and press right of access.
Constitution, the defendant in a criminal case has a right
The Thirteenth Court of Appeals of Texas adopted this
to a public trial, and the public and the press have a right
reasoning in Mosby v. Texas, finding that the youthful age
74
to attend criminal trials.
The rights of the defendant,
of the witness and extremely sensitive nature of testimony,
24
25
which related to specific sexual acts between the witness
and intimidating for a child. Altering the physical environment
and defendant, justified exclusion of the public from the
in the courtroom to make it more child-friendly can make a
courtroom so as to protect the witness from harassment or
child feel more at ease and thus improve the child’s ability to
78
undue embarrassment.
Texas also provides legislation limiting the release of
identifying information concerning child abuse victims.79
This Texas statute is consistent with the United States
Supreme Court holding in Nixon v. Warner Communications
that the public’s common law right to access judicial
records and documents is not absolute.80 Public policy
supporting this legislation provides that “in order to
protect child witnesses from serious psychological harm, it
is within the system of fair play and justice to permit trial
judges to exercise discretion when warranted” to avoid
“publicity given to the identity of child victims which may
cause humiliation and shame for which abused children are
ill-prepared to handle.” 81 Further, under recent legislation,
the court retains discretion to establish any conditions on
the taking of a child’s testimony that the court finds to
participate in the court process. Such alterations do not conflict
with the letter nor spirit of the law since, “robes, courtroom
arrangement and judicial symbols … [are] fixed in neither law
nor tradition… [and] evolved from shifting philosophies, none of
which has any absolute legal hold on contemporary judges.” 83
So long as the modifications do not compromise the gravity of
the proceedings, all appropriate steps can be taken to make the
child feel more comfortable. Two notable considerations for
courts include creating a child-friendly waiting room and making
a judge appear less intimidating.
i. Create a Child-Friendly Waiting Room
Courts may provide a separate, child-friendly waiting
room for child witnesses. The advantages of child-friendly
waiting areas have been recognized by Texas statutes and
courts alike.
be just and appropriate, including closing a courtroom,
Often, victims and witnesses are required to wait for long
considering the interests of the child, the rights of the
periods of time before they testify. In cases where such a
defendant, and any other relevant factors.82
wait is unavoidable, having a child-friendly waiting room
In appropriate circumstances, closing the courtroom can
greatly benefit the child by decreasing feelings of fear,
equipped with toys and snacks can ease the child’s anxiety
over the upcoming testimony.
shame, and embarrassment, and thus improve the child’s
Many jurisdictions across the country provide waiting areas
ability to testify efficiently and in greater detail.
especially for young court participants.84 These nurturing
D.Alter the Physical Environment of the Courtroom to Make it
Less Intimidating for the Child
The physical environment of the courtroom may be daunting
environments may be geared to a variety of ages and display
a spectrum of amenities. However, one characteristic
remains the same – each strives to provide a safe, ageappropriate, low-stress environment for child witnesses.
26
27
The Texas Code of Criminal Procedure provides that
a hammer. Children perceive the judge’s power to punish
a victim younger than seventeen has “the right to be
and may not understand that they are not the object of
provided with a waiting area, separate or secure from
that punishment.” 86
other witnesses…” 85
E. Employ Shielded Testimony to Decrease the Child’s Trauma
Bexar County’s adoption of this practice is a prime
Associated with Face-to-Face Testimony
example. The court features a television kids can watch
A major concern regarding the psychological state of children
to relax, and a computer station where they may do their
testifying in court is the potential harm resulting from seeing
homework. Other amenities such as a juice bar in the
and confronting the defendant, who may have recently injured
waiting room and the design and placement of furniture
the child or threatened future injury to the child. This trauma
were chosen with children in mind, including chairs that are
is often referred to as the “phenomenon of confrontational
adjustable for height.
stress” 87 and, in addition to support by social science evidence,
The creation of a child-friendly waiting room can reduce
child witnesses’ anxiety over their upcoming testimony.
This practice does not necessarily require reconstructing
the courthouse, merely finding a quiet, separate room
which can be utilized as a child-friendly space.
ii.Reduction of Formal Attire Decreases Child Witness
Anxiety
Altering a judge’s formal attire may decrease a child
witness’ anxiety and intimidation in a courtroom setting.
Research published by the National Institute of Justice
notes the potentially intimidating factor of the judge’s
presence, explaining,
was documented by the United States Supreme Court in
Maryland v. Craig. 88 Researchers are also concerned that such
trauma may impair children’s memory and their willingness to
disclose the truth.89
The Sixth Amendment Confrontation Clause provides that “in
all criminal prosecutions, the accused shall enjoy the right…
to be confronted with the witnesses against him.” 90 The Texas
Constitution guarantees an even greater right to confrontation,
requiring that an actual confrontation take place.91
Nonetheless, in Ohio v. Roberts, the United States Supreme
Court established an exception, providing the criteria for when
out-of-court testimony may be admissible.92 The Roberts test is
a two-part test. First, the prosecution must prove the witness
“…some children may feel protected by the presence
is unavailable. A child witness may be deemed unavailable if the
of the judge, but others may be intimidated by the big
child is categorized as having a “bodily infirmity.” 93 This status
stranger in the dark, scary robe who yells at people in the
relies upon a psychological evaluation of a child’s fragile mental
courtroom and sits towering above the witness stand. One
state when forced to face the abuser. Second, the prosecution
therapist tells of a child witness who was afraid that the
is required to prove that the child’s statement bear an adequate
judge would hit her with a gavel, which she referred to as
“indicia of reliability.” 94 In keeping with the holding in Roberts,
28
29
Article 38.071 of the Texas Code of Criminal Procedure allows
proceedings, the concerns regarding a child’s emotional well-
the court to order that the testimony of the child be taken in
being are equally applicable to child witnesses in civil cases.
a room other than the courtroom, and be televised by closedcircuit equipment in the courtroom.95
In both criminal and civil cases, there are many courtroom
modifications that may be adopted to address these concerns
In Coy v. Iowa, a case in which two thirteen-year-old girls
and reduce the traumatic effects on the child witness. These
testified from behind a screen placed in the courtroom, the
modifications include the use of remote testimony through
United States Supreme Court refused to compromise the
closed-circuit television, supplementation of in-court
defendant’s right to face-to-face confrontation in the absence
appearances with videotaped depositions or testimony, and
96
of a compelling, narrowly drawn state interest.
The Court
rejected the argument that the Iowa statute implied a legislative
finding that child witnesses suffer trauma when testifying
in their assailant’s presence, and indicated that a showing
testimony by hearsay witnesses in addition to a child’s live
testimony.
i. Closed-Circuit Testimony and Child Testimony
of necessity requires “individualized findings that…particular
Closed-circuit testimony is a valuable alternative in cases
witnesses needed special protection”, and exceptions to face-
where face-to-face confrontation with the defendant
to-face confrontation “would…be allowed only when necessary
would cause a child to be severely traumatized or unable
to further an important public policy.” 97
to testify. Both the Texas Code of Criminal Procedure and
In Maryland v. Craig, such an individualized showing of trauma
was found, and the court recognized that the Sixth Amendment
right to confrontation was not absolute.98 The Craig Court
held that the Maryland procedure would allow testimony via
one-way closed-circuit television if the judge first found that
the child would suffer “serious emotional distress such that
the child [could not] reasonably communicate” at trial was
constitutional.99 The Court reasoned that the statute did not
rely on a “legislatively imposed presumption of trauma,” and the
defendant’s right to physical confrontation was not absolute.100
Further, the state’s interest in protecting child witnesses from
the trauma of testifying in child abuse cases was sufficiently
important to outweigh the right to a face-to-face meeting.101
Although the Confrontation Clause does not apply to civil
30
31
the Texas Family Code provide for the use of closed-circuit
the emotional distress suffered by the child witness in
testimony, and courts throughout Texas have used these
the presence of the defendant is “more than de minimis
statutory allowances to ensure that a child’s testimony is
i.e. more than mere nervousness or excitement or some
heard when he or she is too frightened or embarrassed to
reluctance to testify.” 106
testify in the courtroom.
ii. Criminal Procedure
Article 38.071 of the Texas Code of Criminal Procedure
allows the court to order that the testimony of the child be
taken in a room other than the courtroom and be televised
by closed-circuit equipment in the courtroom.102
Important public policy concerns support closed-circuit
testimony. Such concerns have been noted by the Texas
Court of Criminal Appeals and other courts in Texas.107 In
Hightower v. Texas, the Texas Court of Criminal Appeals
recognized that among the public policy considerations
supporting the trial court’s actions [i.e. allowing a child’s
live testimony to be transmitted from the jury room to the
The United States Supreme Court case Maryland v. Craig
courtroom] is a stated legislative concern for protecting
affirms the use of remote testimony from children in
children under circumstances of abuse or neglect. The
criminal cases if the state makes an adequate showing
court cited “[an] unquestionable state goal of seeking to
103
of necessity.
This showing of necessity requires
protect a child witness from the trauma associated with
“individualized findings that…particular witnesses needed
giving testimony in open court.” 108 The court went on to
special protection” 104 rather than a “legislatively imposed
confirm that appellant’s Sixth Amendment rights had not
presumption of trauma.” 105
been violated when the child testified before the jury via a
The Texas Court of Criminal Appeals has interpreted
closed-circuit television system.109
Maryland v. Craig to require courts to hear evidence and
The closed-circuit testimony accommodation has been
make a case-specific determination prior to permitting
expanded to include testimony by a child other than the
the transmission of a child’s testimony into a courtroom
victim. For example, in one case, the trial court permitted
through a closed-circuit system. This case-specific
both a victim and his brother to testify via closed-circuit
determination must be based on a three-part test. First,
television; the only persons in the room with the children
the use of the one-way closed-circuit procedure must be
when they testified were the judge, counsels for defendant
necessary to protect the welfare of the particular child
and the State, the court reporter, a victim services
witness who seeks to testify. Second, the trial court must
counselor and the operators of the television equipment.110
also find that the child witness would be traumatized,
The defendant and the jury remained in the principal
not by the courtroom generally, but by the presence of
courtroom and watched the testimony on a television
the defendant. Third, the trial court must determine that
monitor.
32
33
iii. Civil Procedure
level while empowering parents to serve as a resource
Closed-circuit, remote broadcast testimony is also
to the child. The average age for first incident of abuse
permitted in civil cases under Section 104.004 of the Texas
among both boys and girls is 10 years old.114 At this age,
Family Code. In civil cases where the child witness is age
few children have been exposed to the intricacies of the
twelve or under and alleges abuse, the court may order
judicial system outside of the media or pop culture. An
that the testimony be taken outside the courtroom and
effective orientation to the judicial process and court
televised by closed-circuit equipment. In this case, the
procedures can go a long way in desensitizing the child to
procedures for prerecorded videotaped testimony are
an otherwise intimidating environment.
applicable.111
Child witness’ caregivers also find effective orientation
Closed-circuit testimony has been supported by statute
programming to be an essential service.115 The child’s
and civil case law in Texas. In appropriate circumstances,
testimony centers on an incident that the caregiver could
children may be permitted to testify via closed-circuit
not prevent. This experience often leads to a surge of guilt
television in place of in-court testimony.
and feelings of helplessness or powerlessness on the part
of the caregiver. By involving adults who are an important
F. Court Orientation
part of the child’s life, an orientation program may restore
Over the last 20 years, court orientation for child witnesses
112
and their families has expanded across the country.
These
some feeling of control. Further, orientation equips the
caregiver with the tools necessary to support the child
programs focus on preparing child witnesses and their families
witness before and after her testimony. While therapists
for the court experience without specifically discussing the
and other service providers play a pivotal role in the child’s
details of any individual case. A stated goal of many orientation
recovery process, the caregiver is the person with the most
programs is to demystify the courthouse and courtroom
access to the child on a day-to-day basis, and will likely be
113
procedures.
Through these programs, children learn about the
the recipient of many of the child’s questions or concerns.
justice system in an age-appropriate manner. At the same time,
By arming the caregiver with information regarding the
their parents and guardians are given an opportunity to feel
court process, the court allows that person to be better
as though they are part of the process. Both elements impact
equipped to soothe a nervous child.
families’ overall court experience and can lead to improved
outcomes for the court and its participants.
i. Effective Orientation
ii. Early Introduction to the Judicial System
Early introduction to the judicial system is a key element
of many court orientation programs. Some orientation
An effective orientation program seeks to familiarize
models introduce children to judicial concepts immediately
children with the court process at an age-appropriate
after the forensic interview.116 In Smith County, Texas,
34
35
the “Kids in Court” orientation program introduces child
with attire and behavior associated with Sunday church
witnesses to the judicial process once their case has
or the library. Next, an explanation of the courthouse
reached the grand jury indictment stage. Over a 4 to 6
security process may assist the child in understanding that
week period, “Kids in Court” monitors the child witnesses
uniformed officers are present to help and protect the
to gauge their level of understanding regarding the
child, and should not be viewed as intimidating authority
process and tailors their approach accordingly. Children
figures. Staff may introduce the child to the waiting area,
are often read age-appropriate short stories unrelated
and explain any delays that the child may anticipate the
to their case or the judicial system, and quizzed for
day she is called to testify. Finally, the courthouse tour
comprehension.117 After the quiz, children are told
is an optimal time to introduce a child to the courtroom
that they will also be asked questions when testifying
itself. Facilitators may allow the child to explore the room
in the courtroom.118 They are informed that, like the
and become familiar with the jury box and witness stand.
comprehension questions, the questions asked in the
This may also be an opportunity for the child to take the
courtroom will be related to things they already know.
witness stand and answer questions unrelated to the case,
This early introduction to the judicial system is part of an
such as the name of his pet, or his favorite type of food.
effort to incrementally desensitize children to the court
Some orientation programs take a group approach to the
environment. By slowly introducing elements of judicial
courthouse tour, allowing multiple children to participate
process, children have the opportunity to absorb the
in the orientation. Children might have the opportunity
idea over time, ask questions, and become comfortable
to take turns playing different roles in the courtroom,
with the idea of speaking in a large room to unfamiliar
such as judge, prosecuting attorney or jury. By giving the
adults. While every contingency cannot be anticipated,
courtroom a more positive association, courts can work
an early introduction to the judicial system gives child
towards desensitizing a child to the initial shock of a new
witnesses sufficient time to process information essential
environment.
to understanding their role in a court case.
iii. The Courthouse Tour
A pre-trial tour of the courthouse is an effective way to
introduce the child to the trial process in a neutral, relaxed
manner. The tour may progress sequentially, beginning
with a discussion of proper courtroom attire and behavior.
Children may be able to equate courtroom expectations
A courthouse visit is also a prime opportunity for the
facilitator to address the child’s fears regarding his
upcoming testimony. A child’s age will always influence
the tenor of the experience; however, every child will
benefit from the opportunity to express concerns
regarding the process as they become familiar with the
court environment. The child will be able to see a real
36
37
courtroom, ask questions, and take a seat in the witness
responsive contact within the courts to whom questions
box. Facilitators may explain the seating arrangements
and concerns may be directed. By allowing protective
during the trial, and explain the role of each person in the
caregivers to feel involved in the process, the court has an
courtroom. By allowing the child to explore the courtroom
opportunity to restore a sense of control in families already
as a neutral setting, facilitators can alleviate some of the
affected by difficult circumstances.
initial apprehension a child witness may feel.
iv. Alternative Orientation Tools
If a physical visit to the courthouse is not possible,
an orientation video might serve the same purpose.119
Considerations may include whether the video accurately
depicts what the child will encounter, particularly for
younger witnesses. It may be disconcerting to a child
to be shown a video that illustrates a well-appointed
playroom/waiting room, yet find that she must wait in a
hallway outside the courtroom until she is called to testify.
ii. Roles of Other Adults Regarding a Child’s Testimony in
Court
Some court orientation programs employ a full-time
coordinator who works directly with the court to facilitate
court orientation for child witnesses, their families and
protective caregivers. The coordinator serves as a liaison
between protective caregivers and the court, offering both
a link to the local district attorney’s office as well as a point
of contact for questions or concerns.
Additionally, an age-appropriate option that explains
Many children’s advocacy centers and prosecutorial offices
courtroom procedures for both young children and teens
appoint a facilitator in the form of a victim advocate or
may be considered.
liaison to work with the child and her family during the
G. Providing Information to the Protective Caregiver
i. Introduction to the Court Process
Protective caregivers play a key role in facilitating the
child’s experience as a witness. By keeping caregivers
engaged and informed at all stages of the court process,
the caregiver will be better able to support the child.
Caregivers should be educated regarding court procedures
court phase of the case. Courts can ensure that the child
is equipped with appropriate support and adequate
information in anticipation of trial through the appointment
of this single facilitator. Facilitators serve as a reliable
point of contact for questions and concerns for the child
and her family, and can play a crucial role in orienting the
child to the court process while ensuring that the child’s
family remains invested in the process.
and responsibilities, as well as the court’s expectations
In addition to addressing the child’s concerns, a court
of victims and witnesses. Adults should be introduced
orientation program is also an opportunity for the
to the court facilitator and should view that person as a
facilitator and caregivers to take note of unidentified
38
39
vulnerabilities that might affect the child during the course
of her testimony, and after the trial. These issues may be
4
CONCLUSION
raised with prosecutors and the child’s therapist prior to
trial, to ensure that effective support is in place to assist
The judicial process and courtroom design present
the child during and after her court appearance.
unquestionable difficulties for the child witness. The justice
system continues to search for new and innovative ways to
The caregiver is in a unique position to prepare a child
to appear in court. While some adults may be inclined
to shield a child from information regarding the court
process out of fear of further traumatizing the child,
most protective caregivers are the ideal conduit for such
information, based on their deep understanding of the
child and her abilities. The court, through the facilitator,
can assist parents and other caregivers in identifying tools
to most effectively prepare the child for the emotional
aspects of testimony.
Finally, when a child is victimized, the entire family is
affected. Parents of child victims commonly reference
feelings of helplessness or loss of control. By including
family and other caring adults in the court education
process, courts can encourage a more valuable use
of support mechanisms for the child witness while
empowering families in the face of a painful situation. An
informed caregiver is better equipped to address concerns
that may arise at home regarding the court process, and
may be best able to communicate clear expectations to a
child in advance of a trial.
facilitate child testimony and decrease the psychological
trauma associated with court involvement for children. The
considerations herein are valuable ways to move towards
child-friendly courtrooms that recognize the specific physical,
developmental and emotional needs of children.
42
43
FOOTNOTES
1
J.D.B. v. North Carolina, 2011 U.S.LEXIS 4557 (June 16, 2011).
2
Karen Saywitz, Children’s Conception of the Legal System: Court is a Place to Play Ball 131-57 (1989); Debra Whitcomb,
When the Victim is a Child 15 (2nd ed. 1992) [hereinafter Whitcomb’s Child Victim].
3
Karen Saywitz et al., Children’s Knowledge of Legal Terminology, 14 Law & Hum. Behav. 523 (1990).
4
Douglas P. Peters, The Influence of Stress and Arousal on the Child Witness, 75 (1991); Kay Bussey et al., Lies and Secrets:
Implications for Children’s Reporting of Sexual Abuse 162 (1993); Dorothy F. Marsil et al., Child Witness Policy: Law Interfacing with Social Science 65 Law & Contemp. Probs. 209, 213-14 (2002).
5
Debra Whitcomb, Research Brief: Emotional Effects of the Court Process on Child Sexual Abuse Victims, Child Victim as
Witness Project Education Development Centre Inc., Newton MA (1992).
6
7
Whitcomb’s Child Victim, supra note 1, at 15.
During the mid-1980s, a series of high profile day care sexual abuse cases surfaced across the country. The
McMartin, Fells Acres and Wee Care cases caused media sensations surrounding the unprecedented accusations.
Many of the original indictments later ended in acquittals or successful appeals. Questions were raised regarding the reliability of the children’s statements, most of which were ultimately deemed to be unfounded. Reinhold,
Robert, “The Longest Trial – A Post-Mortem; Collapse of Child-Abuse Case: So Much Agony for So Little.” The
New York Times, January 24, 1990; Goldberg, Carey, “Youths’ “Tainted” Testimony is Barred in Day Care Retrial”
The New York Times, June 13, 1998. See State v. Buckey, Superior Court, Los Angeles County, California, #A750900
(1990).
8
Myrna S. Raeder, Distrusting Young Children Who Allege Sexual Abuse: Why Stereotypes Don’t Die and Ways to Facilitate
Child Testimony 16 Widener L. Review 239, 242 (2010).
9
Goodman et al., When a child takes the stand: Jurors’ perceptions of children’s eyewitness testimony 11 Law & Hum. Behav. 27,
27 (1987); Leippe, M. R., & Romanczyk, A., Children on the Witness Stand: A Communication/Persuasion Analysis of
Jurors’ Reactions to Child Witnesses, in CHILD EYEWITNESS MEMORY 155-77 (S. J. Ceci, M. P. Toglia, & D. F. Ross
eds., 1987).
10
David F. Ross et al., The Child in the Eyes of the Jury: Assessing Mock Jurors’ Perceptions of the Child Witness, 14 Law &
Hum. Behav. 5, 7 (1990).
11
Id.
12
M.A. Goyette & M.S. Rosenberg, Adults’ Beliefs about Children’s Eyewitness testimony: Perceptions of Child and Verdict in
a Case of Child Sexual Assault, Paper presented at the Third National Family Violence Conference, Durham, NH
(1987); Whitcomb’s Child Victim, supra note 1, at 26.
13
Julie A. Lipovsky et al., Child Witnesses in Criminal Court: Descriptive Information from Three Southern States, 16 Law &
Hum. Behav. 635, 636 (1992).
14
Tex. Crim. Proc. Ann. art. 38.074 (effective Sept 1. 2011).
15
Id.
16
17
Id.
See e.g. State v. Hanson, 439 N.W.2d 133, 137 (Wis. 1989) (stating “[T]he type of questions presented to the child
witness in this case would have been difficult to answer even by a person much more mature”).
18
Saywitz, supra note 3, at 524.
19
Broussard v. Texas, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995)(citing Tex. R. Crim. Evid. 601(a)(2)); Fields v. Texas,
500 S.W. 2d 500, 502 (Tex. Crim. App. 1973); Hollinger v. Texas, 911 S.W.2d 35, 38 (Tex. App.- Tyler 1995).
20
Wheeler v. U.S., 159 U.S. 523 (1895) (holding that a five-and-a-half-year old witness to homicide was competent to
testify because “the boy was intelligent, understood the difference between truth and falsehood, and the consequences of telling the later, and also what was required by the oath which he had taken”).
21
Grayson v. Texas, 786 S.W.2d 504, 505 (Tex. App.- Dallas 1990); Broussard, 910 S.W.2d 952 at 960 (Tex. Crim. App.
1995) (stating that a judge is not authorized or required by Rule 601(a)(2) to force a child-witness to undergo a
psychiatric examination to determine competence).
22
See Clark v. Texas, 659 S.W.2d 53, 54-55 (Tex. App.- Houston [14th Dist.] 1983) (three year old found competent
to testify); Hawkins v. Texas, 11 S.W. 409 (Tex. App.1889); Douglas v. Texas, 165 S.W. 933 (Tex. Cr. App. 1914).
23
See Texas. R. Crim. Evid. 601.
24
Kentucky v. Stincer, 482 U.S. 730, 730 (1987).
25
For example, an interview with a child may begin by requesting identifying information: name, age, school, grade,
home address. But young children may misinterpret these initial questions to mean they are under suspicion or arrest.” Whitcomb’s Child Victim, supra note 1, at 17-18.
26
Lyon, T.D., & Saywitz, K.J, Young Maltreated Children’s Competence to Take the Oath, Applied Developmental Science,
3, 16-27 (1999).
27
Thomas D. Lyon, Nathalie Carrick & Jodie A. Quas, Young Children’s Competency to Take the Oath: Effects of Task,
Maltreatment, and Age, 34 Law & Hum. Behav. 141-49 (2010).
28
See Tex. Crim. Proc. Ann. Art. 38.074 (effective Sept. 1, 2011).
29
Perry et. al, supra note 48, at 613 (children under the age of six have limited comprehension of negatives) (even
for adults, a negative question is more difficult to understand than a positive one) (many common legal terms are
unfamiliar to or misinterpreted by children under ten) (when a child answers compound questions, they often
respond to only part of the question and seem not to realize their answers may be interpreted by the listener as applying to other parts of the question as well) (young children do not routinely ask for clarification, perhaps because
they do not recognize when adult questions are confusing); Cathleen A. Carter et al., Linguistic and Socioemotional Influences on the Accuracy of Children’s Reports, 20 Law and Hum. Behav. 335, 336-37 (1996).
30
Perry et. al, supra note 48, at 627.
31
Young children are “often not being able to say “what time” or “what month” something occurred, but [being]
able to say whether it was before or after school, what was on television, or whether there was snow on the ground”
Older children “tend to exhibit different, yet equally challenging developmental patterns. For example, [using]
words or phrases they do not fully understand.” Whitcomb’s Child Victim, supra note 1, at 16.
32
33
Id.
See Texas R. Evid. 603 (Providing that “every witness shall be required to declare that the witness will testify
truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscious and impress
the witness’ mind with the duty to do so.”).
34
Tex. Crim. Proc. Ann. art. 38.074 (effective Sept 1. 2011); Texas R. Evid. 603.
35
See Fultz v. Texas, 940 S.W.2d 758, 762; Hollinger v. Texas, 911 S.W.2d 35, 39; Gonzales v. Texas, 748 S.W.2d 510, 512
(Tex. App.- Houston [1st Dist.] 1988); Macias v. Texas, 776 S.W.2d 255, 256 (Tex. App.- San Antonio 1989); see also
Provost v. Texas, 514 S.W.2d 269, 270 (Tex. Crim. App. 1974) (stating that when a child swore, “she was making a
promise to tell the truth.” During trial, the 13 year-old girl stated that she did not understand the meaning of the
oath, however she did understand that failing to tell the truth would get her in trouble); Fields, 500 S.W.2d 500 at 501
44
45
(holding that a four year-old child was competent to testify because he “knew what it was to tell the truth and knew
that it was wrong not to tell the truth…[that he knew] people can get ‘a spanking’ if they do not tell the truth [and
Comparison Communities, in CHILD MALTREATMENT (Wendy A. Walsh, Tonya Lippert, Theodore P. Cross, Danielle M. Maurice & Karen S. Davison, 2008); accord New Directions from the Field: Victims’ Rights and Services for the 21st
he understood] that while he was in the courtoom he was supposed to tell the truth”); Franks v. Texas, 314 S.W.2d
Century, Office for Victims of Crime, Dep’t of Justice (1998).
586, 588 (Tex. Crim. App. 1958) (holding that a four year-old child, who stated he knew he would ‘catch a whipping’
55
if he told something which was untrue, was a competent witness).
http://www.ncvc.org/ncvc/AGP.Net/Components/documentViewer/Download.aspxnz?DocumentID=42467.
36
56
Article 38.074 of the Texas Code of Criminal Procedure specifically requires that: on the motion of any party, or
Crime Victims’ Right to a Speedy Trial, The Nat’l Ctr. for Victims of Crime (June 15, 2011 2:17pm), available at
Webb County also provides a rule demanding the speedy disposition of all criminal cases, specifically noting the
a parent, managing conservator, guardian, or guardian ad litem of a child or special advocate for a child, the court
importance of such in cases involving a child victim. See TX R WEBB CTY RULE 6.22(b)(2011); See also Tex.
shall allow the child to have a toy, blanket, or similar comforting item in the child’s possession while testifying or
Crim. Proc. Ann. art. 56.02 § (a) (15) and art. 29.14 (West 2009).
allow a support person to be present in close proximity to the child during the child’s testimony if the court finds
57
by a preponderance of evidence that: (1) the child cannot reliably testify without the possession of the item or pres-
CHILDREN 74-75 (K. MacFarlane & J. Waterman et. al., 1986); Whitcomb’s Child Victim, supra note 1, at 36-37.
ence of the support person, as applicable; and (2) granting the motion is not likely to prejudice the trier of fact in
58
evaluating the child’s testimony. See Tex. Code Crim. Proc. Ann art. 38.074 (effective Sept 1, 2011).
59
The Child Witness in Criminal Cases, supra note 37, at 24.
37
Myers, supra note 25, § 6.14, at 57.
60
G.S. Goodman & J.A. Michelli, Would You Believe a Child Witness? PSYCHOLOGY TODAY (Nov. 1981); Barbara
38
The Texarkana Court of Appeals allowed the child victim’s mother to stand with him while he testified in trial for
VanOss Marin, Deborah Lott Holmes, Mark Guth & Paul Kovac, The Potential of Children as Eyewitnesses: A Comparison of Children and Adults on Eyewitness Tasks, 3 Law & Hum. Behav. 295, 301 -06 (1979).
aggravated sexual assault of that child. Conrad v. State, 10 S.W.3d 43 (App.- Texarkana 1999); A three-year old child
K. MacFarlane & S. Krebs, Techniques for Interviewing and Evidence Gathering, in SEXUAL ABUSE OF YOUNG
See Fed. R. Evid. 611(c)
victim was permitted to testify from her father’s lap throughout most of the proceedings. Clark, 659 S.W.2d 53 at
61
54.
EYEWITNESS MEMORY 3-23 (S. J. Ceci, M. P. Toglia, & D. F. Ross eds., 1987); Whitcomb’s Child Victim, supra
39
In re D.T.C, 30 S.W.3d 43, 47 (App.- Houston [14th Dist.] 2000).
note 1, at 24.
40
Mosby v. Texas, 703 S.W.2d 714, 716 (Tex. App. 1985).
62
Child Witness in Criminal Cases, supra note 37, at 23-24.
41
John E.B. Myers, Karen J. Saywitz, & Gail S. Goodman, Psychological Research on Children as Witnesses: Practical Implica-
63
St. Clair v. U.S., 154 U.S. 134, 150 (1894); Newsome v. State, 829 S.W.2d 260, 270 (Tex. App.- Dallas 1992); see Wyatt
G.S. Goodman, C. Aman, & J. Hirschmann, Child Sexual and Physical Abuse: Children’s Testimony, in CHILDREN’S
tions for Forensic Interviews and Courtroom Testimony, 28 Pac. L. J. 3, 63 (1996) (citing Ellen Mathews & Karen J. Saywitz,
v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000); Baltazar v. State, No. 08-02-00447-CR, 2004 WL 1078502, at 3 (Tex.
Child Victim Witness Manual, 12 Center For Jud. Educ. & Res. J. 5, 34 (1992)).
App.- El Paso 2004) (not designated for publication); Travelers Ins. Co. v. Hurst, 358 S.W.2d 883, 885 (Tex. Civ. App.-
42
Texarkana 1962); Ballew v. State, 452 S.W.2d 460, 461 n.1 (Tex. Crim. App. 1970).
Sperling v. Texas, 924 S.W.2d 722, 726 (Tex. App.- Amarillo 1996); See Tex. Code Crim. Proc. Ann. art. 38 § 10
(West 2009).
64
43
689, 696 (Tex. App,- Houston [14th Dist.] 1984); Clark, 659 S.W.2d 53 at 54 (“nearly all questions propounded to
Rena Marie Justice, Pets in the Courtroom: The New “Comfort Item”, 20 National Center for Prosecution of Child
Uhl v State, 479 S.W.2d 55, 57 (Tex. Crim. App. 1972); Newsome, 829 S.W. 2d 260 at 270; Jolly v. State, 681 S.W.2d
Abuse (2007).
her [the child witness], and answers given, were in response to leading questions and suggestions”).
44
65
Flannery v. Texas, 117 S.W.2d 1111 (Tex. Crim. App.1938).
with a support person.” Rena Marie Justice, supra note 46.
66
Id. at 1113, 1114.
45
Misty Shultz, Therapy Dog Comforts Girl in Trial, CLEBURNE TIMES-REVIEW, Feb. 26, 2007.
67
See Tex. Code Crim. Proc. Ann. art. 38.074 (effective Sept 1. 2011).
46
Justice, supra note 41 (quoting telephone interview with Judge William Bosworth).
68
Engaging Youth in Court: Sample Court Policy, 30 No. 3 Child L. Prac. 33 (2011).
47
See e.g. Bexar County Allows Dogs to Calm Children in Court, THE DALLAS MORNING NEWS, September 6, 2006.
69
Joseph Goldstein, Anna Freud & Albert J. Solnit, BEYOND THE BEST INTERESTS OF THE CHILD 40-41
48
Id.
(1979).
49
Whitcomb’s Child Victim, supra note 1, at 29. [noting that “to the extent possible, those elements of the judicial
70
Whitcomb’s Child Victim, supra note 1, at 34.
process that create undue stress should be minimized, because serving the child’s best interests will, in the long run,
71
Vera v. State, 709 S.W.2d 681, 686 (Tex. App.- San Antonio 1986) (holding that trial court did not abuse its discre-
benefit the justice system as well”].
tion in allowing use of dolls by young complainant and trial court did not abuse its discretion in allowing prosecutor
50
Janet Leach Richards, Protecting the Child Witness in Abuse Cases 34 Fam. L. Q. 393, 410-11 (2000).
to use dolls during argument) (citing Mckenzie v. State, 617 S.W.2d 211, 214, n.9 (Tex. Crim. App. 1981) (in which a
51
Id.
child used one of her favorite dolls to indicate where she had been touched).
52
Tex. Crim. Proc. Ann. art. 38.074 (effective Sept 1. 2011).
72
Whitcomb’s Child Victim, supra note 1, at 34.
53
Billie Wright Dziech & Judge Charles B. Schudson, On Trial America’s Courts and Their Treatment of Sexually Abused
73
See Jensen v. State, 66 S.W.3d 528, 535 (2004) (appellate court noting victim’s use of a doll in her live testimony at
Judges and prosecutors alike have noted “that these effects are even stronger than when a child holds a doll or sits
Children 170 (1991).
trial).
54
74
Wendy A. Walsh, How Long to Prosecute Child Sexual Abuse for a Community Using a Children’s Advocacy Center and Two
See U.S. Const. Amend. VI.
46
47
75
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 615 (1982); Mosby, 703 S.W.2d at 714.
give way to considerations of public policy and the necessities of the case”); Marx v. State 987 S.W.2d 577, 589 (Tex.
76
Globe, 457 U.S. at 615.
Cr. App. 2004).
77
Id. at 596.
78
703 S.W.2d 714 (Tex. App.- Corpus Christi 1985).
79
See Tex. Code Crim. Proc. Ann. art. 57.02 (West 2009).
109
Id. at 54.
80
Nixon v. Warner Communications, 435 U.S. 589 (1978).
110
Ruiz v. State, 939 S.W.2d 245-46 (Tex. Cr. App. 1997) (noting the use of closed-circuit television at trial and hold-
81
The Child Witness in Criminal Cases, A product of the Task Force on Child Witnesses of the American Bar Associa-
tion Criminal Justice Section, 39 (2002).
108
ing that the presentation of child witness testimony via closed-circuit television does not violate the defendant’s
constitutional confrontation right).
82
Tex. Crim. Proc. Ann. art. 38.074 (effective Sept 1. 2011).
111
83
Billie Wright Dziech & Judge Charles B. Schudson, supra note 15, at 171.
112
84
National Center for State Courts, Courthouse Design and Finance, available at http://www.ncsc.org/Topics/
Courthouse-Facilities/Courthouse-Design-and-Finance/State-Links.aspx?cat=Childrens Waiting Rooms and Day
Care Centers.
85
See Tex. Code Crim. Proc. Ann. art. 56.02(a) (8) (West 2009).
86
Whitcomb’s Child Victim, supra note 1, at 18.
87
Louise Dezwirek-Sas, Empowering Child Witnesses for Sexual Abuse Prosecution, in CHILDREN AS WITNESSES 194
Helen Dent. & Rhona Flin eds., 1992); Gail S. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child
Hightower v. Texas, 822 S.W.2d 48, 53 (Tex. Crim. App. 1991) (stating that holding “is based on the unquestionable
state goals of seeking to protect a child witness from the trauma associated with giving testimony in open court”).
See Tex. Fam. Code § 104.003.
Tarrant County pioneered Texas’ first Kids in Court program in 1990, and has since become the model for
similar programs across Texas. Interview with Blanca Burciaga, Director, Tarrant County Victim’s Assistance Unit
(Aug. 22, 2011).
113
Interview with Jason Isham, Program Director, Children’s Advocacy Center of Smith County (Aug. 17, 2011).
114
The National Resource Center on Child Sexual Abuse, The Incidence and Prevalence of Child Sexual Abuse, Hunsts-
ville: NRCCSA, 1994.
115
U.S. Department of Justice, Breaking the Cycle of Violence: Recommendations to Improve the Criminal Justice Response to
Child Victims and Witnesses 14 (1999).
Sexual Assault Victims, in 5 MONOGRAPHS OF THE SOCIETY FOR RESEARCH IN CHILD DEV. 100 (1992);
116
Interview with Jason Isham, supra note 116.
Dorothy F. Marsil et al., supra note 3, at 213-14.
117
Id.
118
Id.
119
Video tape: Kids in Court (on file with authors).
88
Maryland v. Craig, 497 U.S. 836, 855 (1990) (recognizing the “growing body of academic literature documenting
the psychological trauma suffered by child abuse victims who must testify in court”).
89
Dorothy F. Marsil et al., supra note 3, at 209.
90
U.S. Const. Amend. VI.
91
See Tex. Const. Art. I, § 10; See also Long v. State, 742 S.W.2d 302, 309 n.9 (Tex. Crim. App. 1987).
92
Ohio v. Roberts, 448 U.S. 56, 62-75 (1980).
93
Id.; See Tex. Code Crim. Proc. Ann. art 38.071, § 8 (West 2009).
94
Id. at 57.
95
See Tex. Code Crim. Proc. Ann. art. 38.071 (West 2009).
96
Coy v. Iowa, 487 U.S. 1012 (1988).
97
Id. at 1021.
98
Craig, 497 U.S. 836 at 836.
99
Id. at 838.
100
Id. at 845.
101
Id. at 855.
102
See Tex. Code Crim. Proc. Ann. art. 38.071 (West 2009).
103
Craig, 497 U.S. 836 at 837.
104
Coy, 487 U.S. 1012 at 1021.
105
Craig, 497 U.S. 836 at 845.
106
E.g. Gonzales v. State, 818 S.W.2d 756, 762 (Tex. Cr. App. 1991); Lively v. State 968 S.W.2d 363, 366 (Tex. Cr. App.
1998).
107
E.g. Smith v. State, 88 S.W.3d 652, 659 (App.- Tyler 2002) (stating “the right to confrontation must occasionally
`