Preparing Children for Court: A Practitioner's Guide
Publication Year: 2000
Preparing Children for Court and its accompanying workbooks will aid social workers, court educators, victim/witness specialists, law enforcement, therapists, and attorneys help children enter the justice system, understand the necessary elements of court rules and structure, and feel confident enough to testify truthfully. Finding Your Way This brief-easy-to-understand book explains what happens when a child discloses abuse and how various systems may respond to this disclosure, from investigation through prosecution or juvenile court involvement to therapy. Getting Ready for Court: Criminal Court Edition A fun, friendly first step in helping prepare primary-aged children to testify in criminal cases involving abuse. Getting Ready for court: Civil court Edition This child-friendly book is a first step in helping prepare primary aged children to testify in civil cases ...
- Front Matter
- Back Matter
- Subject Index
- Chapter 1: Educator Information: Building a Foundation
- Introduction Information for Court Educators
- The Need for a Court Educator
- Suggested Court Education and Preparation Components
- Court Schools
- A Critical Link
- Who Could Be a Court Educator?
- Possible Functions of a Court Educator
- Common Problems Encountered and Learning the Basic Rules of Court
- Coaching a Witness—What it is and How to Avoid Being Accused of it
- What to Say to Parents about Their Child's Bringing up the Subject
- Proper and Improper Activities for Parents
- The Disclosure Process for a Child Witness (Delayed Disclosure or Disclosure to Someone other than the Parent)
- Difficult Familial Problems When a Defendant is Known and Loved
- Suggested Tools and Supplies
- Making a Representational Doll
- Chapter 2: Preparing to Perform Duties and Functions
- Assessing the Case: To Review or Not Review Case Facts
- The Court Educator Becoming a Potential Witness
- Safety and Security Issues
- Out-of-Court Safety or Security Considerations
- The Defendant's Background
- Bail Bonds and Court Orders
- Threats, Harassment, Communication
- In-Court Safety and Security Considerations
- The Defendant's Demeanor
- Control Cuing
- Hostile Courtroom Spectators
- Preparing a Standard Safety Plan
- Other Basic Safety Tips and/or Considerations
- Cellular Telephones
- Automobile Parking Alternatives
- Chapter 3: Basic Foundation Information: Communicating with Child Witnesses
- Basic Information: Facts about Children's Language Skills
- Potential Sources of Information about a Child Witness Communication Skill or Limitation
- Communication Problems with Multiple Events or “Repeated Acts” Cases
- The Need to Anchor a Witness during a Conversation or Testimony
- Chapter 4: Meeting the Parent and Child
- Meeting the Parent
- First Contact—Introductions
- Leaving Messages
- Scheduling Appointments
- Meeting the Parent
- Meeting the Child
- Moving from the Waiting Area to the Work Location
- Working with the Child
- Hands Off!
- Separating the Parent and Child
- Education and Assessment
- Building Rapport
- Work Time and No-Work Time Rules
- Telling the Truth—Will the Child Witness Be Able to Take an Oath?
- Making Mistakes
- Correcting Mistakes
- Guessing at Answers
- Permission to Repeat Certain Words
- Answering Out Loud, Saying “Yes/No,” and the Use of a Microphone
- Repeated Questions
- Hard Questions: Time/Numbers/Distance/Measurements
- Kinship Questions
- Common Words and People a Child is Likely to Meet
- Asking for a Break
- Reducing Anxiousness: Use of Rocks, Coins, Representational Dolls, and Breathing Exercises
- Courtroom Layout: Drawings, Cardboard or Model Miniature Courtrooms, and a Replica of a Judge's Robe
- Tour of an Actual Courtroom (and Exits)
- Closing the Appointment
- Other Common Questions
- Debriefing, Celebrating Efforts, the Verdict and Sentencing
- Debriefing after Testimony is Completed
- Celebrating the Child's Efforts
- The Verdict
- Presentence Investigative Reports
- Victim Impact Statements
- Thank-You Letters
- Chapter 5: The Court Educator, Lawyer, and Therapist
- What to Look for When Screening a Case for Specialized Intervention
- Crisis Management versus Therapy
- The Role of a Therapist in a Court Case: What Should a Therapist Ask When Contacted by a Lawyer?
- Consultant (Not a Witness)
- An Expert Witness
- Treating Therapist
- Preparation Assistant (Possibly Becoming a Fact Witness)
- Preparation Suggestions
- Therapy Notes
- Trauma Dolls
- Supplies Needed to Make a Trauma Doll
- Making a Trauma Doll
- Introducing the Trauma Doll to the Child
- Unknown Defendants and Desensitization
- Home Visits and Office Visits
- Chapter 6: A Prosecutor's Perspective on Court Preparation: Boundaries and Roles
- The Role of a Prosecutor
- Interdisciplinary Teamwork
- Time and Effort
- Vertical versus Horizontal Case Prosecution
- The Charging Decision
- Preliminary Hearings and Grand Juries
- Preparing the Child for Court: The Prosecutor's Responsibility
- Working with the Severely Traumatized Child
- Preparing the Court for the Child: Pretrial Motion Practice
- Introducing Evidence of other Acts of Abuse
- The Discovery Process-
- Videotape and Closed Circuit Television
- Contact with the Defense: Negotiations
- Meeting with the Defense Lawyer or Investigator
- Trial Considerations and Testimonial Tips
IVPS: Interpersonal Violence: The Practice Series[Page ii]
Jon R. Conte, Series Editor
In this series…
LEGAL ISSUES IN CHILD ABUSE AND NEGLECT PRACTICE, Second Edition by John E. B. Myers
CHILD ABUSE TRAUMA: Theory and Treatment of the Lasting Effects by John N. Briere
INTERVENTION FOR MEN WHO BATTER: An Ecological Approach by Jeffrey L. Edleson and Richard M. Tolman
COGNITIVE PROCESSING THERAPY FOR RAPE VICTIMS: A Treatment Manual by Patricia A. Resick and Monica K. Schnicke
GROUP TREATMENT OF ADULT INCEST SURVIVORS by Mary Ann Donaldson and Susan Cordes-Green
TEAM INVESTIGATION OF CHILD SEXUAL ABUSE: The Uneasy Alliance by Donna Pence and Charles Wilson
HOW TO INTERVIEW SEXUAL ABUSE VICTIMS: Including the Use of Anatomical Dolls by Marcia Morgan, with contributions from Virginia Edwards
ASSESSING DANGEROUSNESS: Violence by Sexual Offenders, Batterers, and Child Abusers Edited by Jacquelyn C. Campbell
PATTERN CHANGING FOR ABUSED WOMEN: An Educational Program by Marilyn Shear Goodman and Beth Creager Fallon
GROUPWORK WITH CHILDREN OF BATTERED WOMEN: A Practitioner's Manual by Einat Peled and Diane Davis
PSYCHOTHERAPY WITH SEXUALLY ABUSED BOYS: An Integrated Approach by William N. Friedrich
CONFRONTING ABUSIVE BELIEFS: Group Treatment for Abusive Men by Mary Nõmme Russell
TREATMENT STRATEGIES FOR ABUSED CHILDREN: From Victim to Survivor by Cheryl L. Karp and Traci L. Butler
GROUP TREATMENT FOR ADULT SURVIVORS OF ABUSE: A Manual for Practitioners by Laura Pistone Webb and James Leehan
WORKING WITH CHILD ABUSE AND NEGLECT: A Primer by Vernon R. Wiehe
TREATING SEXUALLY ABUSED CHILDREN AND THEIR NONOFFENDING PARENTS: A Cognitive Behavioral Approach by Esther Deblinger and Anne Hope Heflin
HEARING THE INTERNAL TRAUMA: Working With Children and Adolescents Who Have Been Sexually Abused by Sandra Wieland
PREPARING AND PRESENTING EXPERT TESTIMONY IN CHILD ABUSE LITIGATION: A Guide for Expert Witnesses and Attorneys by Paul Stern
TREATMENT STRATEGIES FOR ABUSED ADOLESCENTS: From Victim to Survivor by Cheryl L. Karp, Traci L. Butler, and Sage C. Bergstrom
HOMICIDE: THE HIDDEN VICTIMS—A Guide for Professionals by Deborah Spungen
TECHNIQUES AND ISSUES IN ABUSE-FOCUSED THERAPY WITH CHILDREN & ADOLESCENTS: Addressing the Internal Trauma by Sandra Wieland
ASSESSING ALLEGATIONS OF SEXUAL ABUSE IN PRESCHOOL CHILDREN: Understanding Small Voices by Sandra K. Hewitt
A CHILD INTERVIEWER'S GUIDEBOOK by Wendy Bourg, Raymond Broderick, Robin Flagor, Donna Meeks Kelly, Diane Lang Ervin, and Judy Butler
GROUP WORK WITH SEXUALLY ABUSED CHILDREN: A Practitioner's Guide by Lynn Grotsky, Carel Camerer, and Lynn Damiano
PREPARING CHILDREN FOR COURT: A Practitioner's Guide by Lynn M. Copen
Copyright © 2000 by Sage Publications, Inc.
All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher.
Sage Publications, Inc.
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Sage Publications Ltd.
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Sage Publications India Pvt. Ltd.
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Printed in the United States of America
Library of Congress Cataloging-in-Publication Data
Copen, Lynn M.
Preparing children for court: A practitioner's guide / by Lynn M. Copen.
p. cm. — (Interpersonal violence)
Includes bibliographical references and index.
ISBN 0-7619-2194-X (pbk.: acid-free paper)
1. Child witnesses—United States. I. Title. II. Series.
00 01 02 03 10 9 8 7 6 5 4 3 2 1
Acquiring Editor: Nancy Hale
Production Editor: Diana E. Axelsen
Editorial Assistant: Cindy Bear
Typesetter: Janelle LeMaster
Indexer: Teri Greenberg
I was pleased to be asked to write a foreword for Preparing Children for Court. This book represents a compilation of “tricks of the trade” by a very talented victim-witness advocate, Lynn Copen. The ideas presented herein are relevant for a wide variety of professions: victim-witness advocate, therapist, court advocate, social worker, prosecutor, defense attorney, and others who have occasion to prepare children to testify in court proceedings. The ideas presented in this book not only assist professionals in doing their job competently, but also allow children to enter the legal system without incurring further damage. Proper preparation allows the court system to seek what is intended—the truth—from adult and child witnesses alike.
As you read this book, you will notice the underlying assumption that children are quite competent to be credible witnesses in court proceedings when prepared properly. This preparation does not mean rote rehearsal of case facts. The preparation involves equipping children to enter the justice system, to understand the necessary elements of court rules and structure, and to feel comfortable enough in that setting to testify truthfully and fully about what they have witnessed or experienced.
Because more and more children are being asked to testify in criminal court proceedings due to increased prosecution of child abuse cases, a book of this sort fills a very urgent need. It provides concrete suggestions to individuals preparing children to testify in court—regarding what they need to do before ever meeting with the child witness, how to include the family in the process, and specific suggestions about what (and what not) to do in court preparation. A chapter by a seasoned prosecutor, Thomas Fallon, addresses preparation issues for prosecutors, making this book the perfect primer for court preparation of children.Tennessee, PhD Private Practice—Maryville, [Page xii]
I am deeply indebted to many people who graciously assisted with the formation of this book. Your reading, commenting, editing, and frequent words of encouragement made this project happen. Each of you made such important and significant contributions in many ways.
Liz Ghilardi, MSW, and Linda Doro, MA, I am eternally grateful for your willingness to help from the very beginning of this project.
I wish to thank the following people, whose comments and insights were deeply appreciated: Sheri Berkani, JD; Sandra J. Bertelle, MA; Kelly Birschbach, JD; Professor Jon Conte; Lt. Lee J. Copen, MA; Geoff Dowse, JD; Thomas J. Fallon, JD; Mary Hart, JD; Brian K. Holmgren, JD; District Attorney Robert J. Jambois; Debra Johansen, PhD; Deputy District Attorney Susan Karaskiewicz; Honorable Barbara A. Kluka; Honorable Mary Kay Wagner Malloy; Honorable Michael S. Fisher; Sandor Marianyi, BS; Anna C. Salter, PhD; Paul Stern, JD; Victor Veith, JD; and K. Richard Wells, JD.
A special thank you goes to the incredibly helpful, talented, and knowledgeable staff at the American Prosecutors Research Institute, National Center for the Prosecution of Child Abuse in Alexandria, Virginia.
To my dear friend, Linda M. Pucci, PhD, for her constant encouragement, patience, and kindness. This book would never have been completed without her support.
To former District Attorney, Robert D. Zapf, I am deeply grateful for your unfailing encouragement and continued support to learn about child victim/child witness issues.
[Page xiv]Reverend Daniel P. and Marjorie Bergeland from Duluth, Minnesota, have a very special place in my heart. You taught me the most about caring, loving, respecting, and helping others. You are magnificent role models for all humanity.
This book is dedicated to you as my way of saying thank you for all that you have done for me and so many other people.
Appendix A: A Case Status Letter—First Notice[Page 123]
Samuel and Rosalie Smith
2397 Sheridan Court
Kenosha, WI 53144
RE: State vs. John J. Zimmerfield
DA File: 99 CF 1234 Charges: Criminal Damage to Property, Theft, and Entry into a Locked Vehicle
Dear Mr. and Mrs. Smith:
This letter is to inform you that the District Attorney's Office has begun a criminal prosecution in the above entitled case. As a witness in this case, you may be subpoenaed for a preliminary hearing and/or trial; however, most cases never go to trial. The testimony you may be able to provide will enable the judge and/or jury to determine what actually happened. As a witness, we respectfully request that you keep our office notified about any address or telephone number changes, please.
The District Attorney's Office has created the Victim/Witness Program to help victims and witnesses to understand the complex criminal justice system, and to find answers to as many questions as you may have about your role or involvement in this court case. Because your child may be a potential witness in this case (in the future), we will be assigning a victim/witness specialist to you and your child.
The victim/witness specialist assigned to your case will be in touch with you within the next day or two. He or she will want to answer any questions or address any concerns you or your family may have regarding the prosecution of this case. The victim/witness specialist will schedule appointments to meet with you, your child, and the case prosecutor. It is our goal to take very good care of you and your child.
[Page 124]We are sending some literature that explains what your crime victims' rights are, a synopsis of the criminal justice process, information about how parents can help when their child goes to court, and information about parking near the courthouse.
Please keep this letter with you. If you need information about this case before we talk again, give us the name of the defendant and our case file number (listed at the top of this letter). We will gladly try to answer your questions. It is our goal that you receive the best possible assistance during the weeks to come. Please feel free to call the victim/witness program staff at 414–653–2400 (Monday-Friday from 8:00 a.m.-5:00 p.m.) with any questions or concerns you may have before we contact you in the near future.Case Information
Initial Appearance—was held this afternoon. A plea of not guilty was entered. Attorney Dexter Monitor is the case defense attorney. A preliminary hearing has been scheduled for August 18 at 9:15 a.m. Bond was set at $10,000.00 cash*. This means the defendant must post that total amount before he can be released.
*A condition of a bond is that the defendant have no contact with Samuel Smith (DOB 2/12/62); Rosalie Smith (DOB 4/21/66); or D.S. (DOB 6/17/92) during the pendency of this court action. The court also ordered the defendant not consume any alcoholic beverages or non-prescribed drugs and not travel within 100 feet of the residence located at 2397 Sheridan Court.
Although we do not anticipate any problem with this defendant, we are enclosing copies of the bond order (and instructions to be followed) if any problems or bond violations need to be reported to law enforcement.
Thank you very much for your cooperation. We look forward to meeting with you in the near future.
Lynn Copen, Director
Appendix B: When Your Child Goes to Court: How Parents Can Help: General Information for Parents[Page 125]
Going to court, and expecting to testify, is often stressful for anyone. Most people have very little contact with the criminal or juvenile justice system, and they get very nervous just thinking about going to court. This tension is often compounded when parents learn that their child will need to appear in court, and probably testify. It is very normal and natural for parents to be concerned about what their child will experience, and how they can help make this experience easier for their loved one.
After working with hundreds of parents and children in this situation, our office has seen and learned some things that people often find helpful, and we have listed some of them below:
- Figure out exactly who is nervous, and what they are nervous about. Very often, we find that it is really the parent who is the nervous one. People are most nervous over the unknown. When you don't know what to expect (whom you will see, what will be done), it causes upsets. Children are very intuitive and will pick up on a parent's feelings. As a parent, you will need to know that your child will look to you for indications about how to feel about going to court.
Have you ever found yourself having to go to some event in a new city or location, and not knowing where you were going, who would be there, or what you'd be expected to do? Do you remember the uneasy feeling you had? Maybe you were unfamiliar with the highway exits, or route needed to find the correct building. Making one wrong turn and getting lost could cause you to become anxious and upset.
[Page 126]Going to court can sometimes be the same way. You may wonder, Where do I go? Where can I park my car? Who will be at this court hearing? What will happen? How long will it take? These are all very legitimate questions. Having information about what is going to happen can be calming—both for you, the parent/caregiver, as well as for your child. We will try to give you information to help you better understand what is going to happen.
After we talk, if you have questions about anything, please do feel free to call me or a member of the victim/witness program staff. We are here to help you or your child whenever you need us. Call the following number_____and ask for_____.
Enclosed is a special workbook for your child titled Getting Ready for Court: A Book for Children. We want you to help your child read the workbook and talk with your child about what it says.
This child's court workbook was written for children ages 4–10. Children younger than age 4 can understand some of the information, and children over age 10 can also benefit from it (but will probably not like the large print). We used the large print so that very young children would not be intimidated with the words and letters.
Children can sometimes be nervous about something completely different from their parents. A parent may worry about the child being able to recall and talk about an experience, or about cross-examination by an eager defense lawyer. A child may be more concerned about knowing what to do if he or she needs to go to the bathroom while on the witness stand, or about making up missed school assignments, or about how you will handle listening to what he or she will say in court.
Many children tell us that they don't want to upset their parents, and worry about the parents having difficulty listening to what the children need to tell about what they saw, heard, or had happen to them. Children love their parents and worry about hurting them. This is one of the reasons that some children initially disclose being a victim or witness to someone other than the parent first. It can be very hard for a child to testify in court and watch his or her parents show pain or distress as they listen to their child's testimony.
Frequently, we find that many children are not nearly as worried about testifying in court as their parents are. Some children have reported, at a later time, that the experience was not so bad, or was even helpful.
- Find ways to reassure your child that you are all just fine. This does not mean saying you are not nervous, if you really are. But you need to let your child know that you want him or her to tell the truth and answer questions to the best of his or her ability, and no matter what, you are proud and love him or her. Talk to your child about being a bit nervous, too, and that you will go through this together.
[Page 127]Maybe you are not the person to hear the details of what the child saw, heard, or experienced (see above explanation about why), but encourage your child to talk about what is of concern to him or her with whomever he or she feels comfortable. We prefer that the child talk with the lawyer about the details or facts of a case, but talking about worries, fears, or concerns with you or trusted friends will help us all out a great deal.
We have found that children who talk about what is bothering them, and have a trusted person listening to them, seem to recover more easily and completely than children who do not talk about their thoughts and feelings. Let us know what your child needs, and we will do our best to help you all out.
It is common for parents to think it is better to just forget about what happened and not let a child discuss problems or feelings about what they saw, heard, or experienced when they bring up the issue. Our findings have been just the opposite. However, please refrain from forcing a child to talk about things or specific details about an event. Children do need to process the experience, and we strongly encourage children to speak with a skilled therapist or counselor. Many children process their experience quickly and need to meet with a professional counselor or therapist only a few times. Other children may need to see a counselor many times before they are able to take steps toward recovery.
Your child will be very “tuned in” to whatever mood or feeling you are showing. Try to appear calm and relaxed. Try to not telegraph your worries to your child. Be aware that children hear extremely well and may overhear you talking to someone else about your concerns. As a parent, I notice that my own child seems to listen best when I do not want him to overhear me talking. But, that is life with children.
- Listed below are a few tips to consider:
- There may be some waiting involved while at the courthouse. As inter esting as the courthouse may be at first, to be at this new and busy place very long can become quite boring. So, bring a friend with you to talk with just in case you wait.
- We have a bed with blankets and pillows for naps. Although it is very rare that any child will be at the courthouse long enough to need a nap, there may be other children in the family who need a rest while everyone is waiting. These napping supplies are in our special children's waiting area.
- There are vending machines (soda/coffee/juice as well as snacks) in the courthouse. You will also find several books, coloring items, movies/VCR for you and your child to use while waiting. Please feel free, however, to bring your own coloring books, favorite toy, snacks, or games your child may want to play with.
If you are attending a preliminary hearing, even though these are heard quickly, you may find yourself waiting anywhere from 10 to 30 minutes before your case is called. [Page 128]Jury trial waiting times will likely be longer. You may find yourself waiting half a day before your child testifies. Although we do our best to coordinate schedules so your child arrives at court a short time before he or she will need to testify, unforseen delays or problems sometimes happen that cause witnesses to have to wait longer than we would like. For this reason, we encourage you to bring in a favorite healthy snack for your child.
- Remind your child that he or she will be just fine. Becalm. All your child needs to remember when he or she goes into court is to tell the truth. When your child is done testifying, talk with him or her about his or her feelings, rather than what was said.
Try to not focus on winning …or a verdict or “guilty.” What a judge or jury does is not in your control. You and your child do control going into court and doing the best job you possibly can.
- Give your child love and affection. Hugs are wonderful! Hugs work wonders before court, after court, and anytime in between. By the way, you may want to tell your child that you need a hug when you go to court, too.
- The night before you go to court, you and your child should try to relax as much as possible. Fix your favorite meal, or watch a movie that you all enjoy, or take nice warm bubble baths. Try to find ways to share some laughter. Everyone should try to get a good night's sleep. The morning of court, do your best to eat a good breakfast.
- The afternoon before court, you may want to stock up on healthy snacks (fruit, granola bars, juices). We have found that although people are rarely hungry before court, once it is over, they want to eat or nibble on food.
- Enclosed is a map that shows you where the courthouse is located and where there is free parking for witnesses.
Our office has professional victim/witness program staff available to you Monday through Friday. Someone from our team will be assigned as a “court friend” to help you and your child. Your court friend will cover all of this information with you in person, as well as try to answer any of your questions. We want parents to have all of this information in writing, because there is so much to know and remember!
If you ever have a question, concern, or need assistance, please feel free to call the person listed. If your assigned court friend is not available, just ask the receptionist to contact anyone in the victim/witness unit (we all help each other out whenever needed). We are here to help you and your child, and we want to make your court experience as easy and pleasant as possible. We may not have all of the answers to your questions right away, but we promise to try to get them as soon as possible. We are a team and need your help, too.
Appendix C: Bond Conditions/No Contact Orders[Page 129]
(This information should be on official letterhead stationery) Information for Witnesses
State of ________vs. (Defendant's name)
Court File Number:__________
Law Enforcement Agency Case Number:____
Investigating Law Enforcement Agency & Telephone No:________
Name of Prosecutor & Telephone No:_____
Name of Court Educator and Telephone No:_____
Court hearing dates (list if known):_______
Branch of Court/Assigned Judge:__________Bond Information
A bond was set on (insert date) in the amount of (list amount). In addition to a (list bond amount), the defendant was ordered to have no contact with the following people and/or locations: (list names of people and/or addresses with which the defendant is ordered to have no contact while out of jail on a bond).
Violations of conditions of a bond are serious matters and should be reported to the above listed law enforcement agency immediately. Attached is a copy of the court bond order to show to law enforcement officers, in the event their assistance is necessary.
[Page 130]Additional bond conditions:
Additional special instructions to witnesses:
Appendix D: Child Victim Impact Statement[Page 131]
When a person is convicted of a crime, the judge will order what is called a presentence investigative report before the sentence is actually pronounced. The presentence investigative report is a long report written by someone from the Department of Corrections. Someone from the Department of Corrections will probably want to talk with you and your child about how this crime has affected your child's life.
Many people feel more comfortable writing a letter, and some children are more comfortable writing out a child's victim impact statement. Attached to this letter is a victim impact statement form for your child to complete, with your help. You can write a letter, complete this statement form, and talk with the presentence investigative agent. You can also choose to not write anything or talk with anyone about any of this. You have a right to choose to do what you wish.
A presentence investigative report is mostly about the defendant (the person convicted of committing a crime). But the judge wants to know what a victim has to say about how this crime affected him or her. The judge carefully reads what is written by child victims and their parents. Writing can be quite hard for some people, especially children. To make things a little easier, we have written down some questions that you and your child could think about answering. Please know that neither you nor your child needs to answer any questions. You also can write as much as you need to, and can use more paper if necessary.
Your letter and your child's responses to this victim impact statement will be given to the case lawyer (prosecutor), judge, defense lawyer, presentence agent, and the defendant.
There are some rules about letters that go to a judge. We will tell you about those rules as we list the questions for you to consider answering.
[Page 132]We would like children to express their thoughts on the child victim impact form. It is okay to have a grown-up help a child with the statement, but the thoughts and feelings should be those of the child. Parents are welcome to write their own victim impact statement or letter that contains their thoughts and feelings. We need the victim impact statements returned to our office within the next 10 days. So to help you, we have enclosed a self-addressed envelope for you to use.
Please give me a call if you wish to talk about this further, or have questions. My telephone number is __________.Child Victim Impact Statement: (With Adult Assistance)
State of Wisconsin Court File Number:
Defense Lawyer: ________________
Sentencing Date: ________________
Charge at the time of sentencing: __________
Potential penalty range at time of sentencing: _________
Name of person helping child complete this form: _________
Relationship of the helper to the child: _______________
Name of victim: _______________ Age: ____
Before the judge tells the defendant what will happen to him or her, the judge will read the presentence investigative report and any letters or statements made by victims or parents of child victims. You can use as little or as much paper as you need. You can answer any, all, or none of the questions listed below. You do not have to say anything at all if you don't want to. It's okay. But if you do want to say something to the judge, now is the time to do that.[Page 133]Questions to Answer
- Were you hurt by this crime? Being “hurt” could mean having either your body hurt or your feelings hurt.
If you were hurt by this crime, the judge will want to know more about that from you. Some children are hurt physically, like a bruise, burn, or broken bone. Sometimes, children are hurt emotionally, like really hurt feelings or being really sad or mad. Some children are hurt both physically and emotionally. If you were hurt by this crime, please tell the judge about your hurt.
- If you were hurt, did you have to see someone to help try to fix the hurt?
If you answered yes, please tell us who you went to and if you need to continue to see someone for help.
- Are you worried or scared about anything to do with what happened to you?
Sometimes, children are worried or scared after they saw or heard something, or had something happen to them. If you are worried or scared about anything, the judge would like to know what worries or scares you. We don't know if the judge or anyone can help you with your worries or fears, but we will try. We need to know what your worries or fears are first. If you can, please tell us what you would like us to know.
- What do you hope the judge will say the sentence will be?
The judge will want to know what you think should happen to the defendant for this crime. Before you answer this question, you need to know the rules that the judge must follow for sentencing. Go back to the first page of this letter. We telI you what the judge is allowed to use as a sentence. That is where it says “potential penalty.” The judge cannot sentence anyone to more than [Page 134]what the law says. We have told you what the most is that someone can get for a sentence. The judge can sentence someone to less than what is listed but not more. These are the rules that the judge needs to follow. If you don't understand what this means, ask a grown-up to help you, or call your court friend to help explain this to you.
The judge has to make the final decision about what a sentence will be, and may or may not do what you would like, but the judge will read your letter.
- What are your feelings about everything that has happened in this case? We would like to know how you feel about all that has happened. Were you treated fairly by the police? Were you treated fairly by the District Attorney? Was your court friend helpful? What did you think about going to court? These are some of the things we would like to know about. You can tell us anything—good or bad—about going to court. We really want to know how you feel and how we can do a better job.
- Is there anything else you want to say that was not asked? (Feel free to add more pages if you need to.)
- Color any kind of picture you would like.
Appendix E: Sample: Very Young Child Victim Impact Statement[Page 135]
It is your turn to tell the judge how you feel about what happened. You do not have to say anything if you don't want to.
Your mom said she would help you write a letter to the judge. Thank you for talking to us. Thank you for being a big help.Questions
- How did this crime make you feel? You can circle as many faces as you want. You can draw any face you want to.
(add circles to show any other face you want to).
- What do you want the judge to say to (name of defendant)?
- Is there anything else you want the judge to know about how you feel now?[Page 136]
- Please draw us a picture of something you like:
Thank you for helping us. You were a big help.
Appendix F: Court Educator Notes: Work Product Checklist[Page 137]Part 1—Parental Contact
Your name: ____________________
Defendant's name: _________________
Child's name and age: _______________
Case social worker/detective: ____________
Parent/caregiver name: _____________
Telephone number: ________ Alternate phone: _____
Child's school: __________________
Added information: _______________
Discuss with parents and list their comments:
- Explain who you are
- Explain your role
- Discuss case status (precharging stage, charges, likely hearing dates)
- Identify any safety or security concerns:
No concerns ___ Yes __ If yes, identify and specify concerns:
[Page 138]Will law enforcement action be needed at this time (security intervention)?
No ___ Yes __
If yes, what agency is being contacted, and what action is requested or expected?
Are there parental concerns? No ___ Yes __ If yes, indicate the concerns:
Does the parent identify any disabilities, impairments, or other special difficulties or issues for this child? No ___ Yes __ If yes, explain:
Has the child expressed worries or fears to the parent about the case or going to court? No ___ Yes __ If yes, explain:
Will this child witness likely need extra time for assessment or preparation work? No ___ Yes __ If yes, what are the reasons for the more than average time? How much extra time is suggested?
[Page 139]Explain the overall purpose for the educational preparation sessions with the child and parent. Address the following:
- How the introduction will initially take place between the “court friend” and the parent and child.
- Discuss the gradual separation of the parent and child.
- Discuss the parent meeting with the case lawyer, if separation happens safely.
- Advise the parent to keep a list of questions and to bring the questions to the education and preparation appointment.
Document the literature that was given to the parent and/or child (check):
- Criminal justice system overview
- Victims' rights packet information
- Getting Ready for Court—workbook
- Finding Your Way—adolescent book
- Trauma information
- Letter to parents about children going to court
- Crime victim compensation
- Community resources for therapy and/or education
- Other (list):
What is the child's best time of day? __________
What is the child's worst time of day? __________
Child's support network (Who will be the primary support people for this child during the court process?): __________
Scheduled appointment date and time for child and parent
Date and time: _______________
Additional appointment date and time for child and parent:
Other comments: ____________________[Page 140]Part 2—Child Contact Checklist
- Rapport Building
What does this child like and/or dislike?
- Explain work time and no-work time rules to the child (show the timer).
- Child's ability to separate from a parent/caregiver (check):
- Did so easily
- Did so with some difficulty
- Unable to separate or very difficult
- Pretrial motions may be necessary to address the issue of a supporter or parent needed in court when the child testifies. Comments:
- Review the workbook with the child:
- Identify the job function and role of: judge, jury, prosecutor, defense lawyer, bailiff, court reporter, court clerk, guardian ad litem
- Child appears to understand the names and roles of the above-listed court people
- Child has limited understanding about the roles of the above-listed court people
- Child is unable to understand the roles of the above-listed court people
- List any difficulties encountered with the workbook:
- Let the child wear a replica judge robe.
- Show the child the model miniature courtroom and have the child make his or her court doll, as well as any representation doll he or she wishes.
[Page 141]Discuss the following tasks and concepts with the child:
- Telling the truth
- Talking clearly and loudly
- Using a microphone
- Using the words “yes” and “no,” rather than a shake/nod or “uh-huh,” “uh-uh”
- Court reporter needing to hear words clearly
- Permission to correct any mistakes made, at any time, by either adults or the child
- Guessing at answers
- Repeated questions
- Permission to say certain words in court
- How to ask for a break when needed
- Where the toilets are located
- How to do deep, slow breathing
- Holding or rubbing rocks, pennies, or representational dolls when nervous
Discuss the hard questions:
- Time questions
- Child can tell the time by the clock
- Child not able to tell time by the clock
- Child understands seconds, minutes, hours, days, weeks
- Child does not understand time concepts (explain)
Will the child have difficulty with “how long something lasted” questions?
Will the child have difficulty with “how much time” questions?[Page 142]
- Distance questions (Can the child understand these words?):
- Measurement questions (Does the child understand these forms of measurement or difference between a foot as something having toes and a foot as 12 inches? Does the child understand the difference between a yard being 36 inches or something you play in at your house?):
Will the child be able to answer “how far away or how close” questions?
No___ Yes ___
- Comparison questions (Does the child understand what they mean?):
- Taller vs. smaller
- Bigger vs. smaller or “littler”
- More than vs. less than
- Older vs. younger
- Number questions
Does the child count by rote or script? No___ Yes___
Does the child understand what the number represents? No___ Yes___
Will the child be able to answer “how many times?” questions accurately?
Comments: _______________[Page 143]
- Relationship questions
Does this child understand the concept of close/far/near? No___ Yes___
Does this child understand people relationships, such as aunt, uncle, cousin, brother, sister, mother, father, stepmother, stepfather? No___ Yes___
Discuss the following common words or word combinations asked of witnesses in court. Does this witness demonstrate the ability to understand what is meant by these words when used in common sentences? These are common and sometimes confusing word/word combinations used by lawyers in court. List comments beside each word as needed for future reference:
- Next to
- On top of
- “Do you remember …?” questions
- “If I were to (say or do …)”
- Yesterday, today, tomorrow
[Page 144]Tour an actual courtroom
Does the child state any concerns, worries, fears, or comments about the court room, courtroom people, or courtroom environment? No___ Yes___
If yes, explain: ____________________
How long can the child work without needing a break (attention span)?
Will there be any concern about the need for pretrial motions to alter the court room environment? No___ Yes___
If yes, explain: ____________________
Is there anything the child wishes to talk about that was not discussed?
Appendix G: Notice of Motion and Notice of Motion to Limit the Examination of Child Witness[Page 145]
PLEASE TAKE NOTICE that on the 17th date of October, 19___, at 2:30 p.m., before the Honorable Michael S. Fisher, Circuit Court Branch 4, the plaintiff, State of Wisconsin, through its attorneys, Assistant District Attorneys Thomas J. Fallon and Shelly J. Rusch, will move the court pursuant to § 901.04 and 906.11 of the Wisconsin Statutes for an order:
[Page 146]Limiting the direct and cross examination of child witness C.M.P., whose date of birth is __/__/__, to age appropriate language, grammar, and sentence structure.
AS GROUNDS THEREFORE, and in support of this motion, the State relies on § 906.11, Stats. and the supporting memorandum with attachment.
Dated at Kenosha, Wisconsin, this 15th day of October 19___.
Kenosha County Courthouse
912 56th Street
Kenosha, WI 53140–3747
Appendix H: Memorandum in Support of Motion in Limine[Page 147]
It is within the discretionary power of the trial court to limit the language, grammar, and sentence structure used in the examination of child witnesses so that their examination will be effective for the ascertainment of the truth.
Section 906.11 of the Wisconsin Statutes reads as follows:
906.11 Mode and order of interrogation and presentation (1) CONTROL BY JUDGE. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
- make the interrogation and presentation effective for the ascertainment of the truth,
- avoid needless consumption of time, and
- protect witnesses from harassment or undue embarrassment.
If the court limits the language, grammar, and sentence structure used in the examination of C.M.P. to age-appropriate concepts, the court will a) increase the likelihood of obtaining accurate information; b) save time by shortening and simplifying her testimony; and c) protect C.M.P. from harassment or undue embarrassment resulting from her inability to understand and respond accurately to adult language, mannerisms, and syntax. The arguments in support of this request are as follows:
[Page 148]First, C.M.P. has been in speech therapy classes while attending school in the Kenosha Unified School District. Recently, she was examined by Speech Therapist Gerald _____. A copy of his report is attached. Mr. _____ details some of C.M.P.'s linguistic abilities and impairments in this report. As a result, the State requests that any questioning of C.M.P.:
- Be done in a soft non-intimidating voice since loud, harsh, and/or sarcastic commentary will hinder communicative efforts; and
- Be stated in short sentences using simple verbs such as “tell me about,” or “show me,” since they are more effective than longer sentences using complex verbs which would be confusing to C.M.P.; and
- Be done at a slow rate of speech and allow sufficient time for C.M.P. to answer the questions before attempting to ask additional questions; i.e., preclude “rapid fire” questions which could be confusing and misinterpreted.
Second, C.M.P. is a child who has suffered significant psychological harm at the hands of this defendant, her biological father, and her stepfather, Donald H., who is also charged with similar crimes as set forth in Kenosha County Circuit Court file No.__ CF__. C.M.P. was approximately three years of age at the onset of abuse. C.M.P.'s older sister, C.E.P., was ten years of age. C.M.P. presented with positive medical findings for physical, as well as sexual abuse. C.M.P. is speech impaired, developmentally delayed, and although almost seven years of age, often functions at the level of a three-and-one-half to a four-and-one-half year old. She also has attention deficit disorder. As a result of these disabilities, there are many words, phrases, and concepts that C.M.P. is not capable of understanding. Also, the examination of C.M.P. in a hostile, loud manner will be ineffective in obtaining accurate information. The State is prepared to present expert psychological testimony if necessary to demonstrate the extent of the emotional trauma sustained by C.M.P.
Third, and by analogy, § 967.04(a)(1–10), Stats., which governs the use of video deposition testimony of children in lieu of live testimony is supportive. In considering whether a court should permit a video deposition of a child the court must take into account the linguistic and cognitive capabilities, as well as the emotional needs of a child. When scheduling a deposition, the court should take into consideration the child's maximum energy level and attention span; the place where the deposition is to take place; i.e., private, informal, and comfortable; determine the child's verbal skills and developmental level in connection with qualifying the child to testify; explain to the child the purpose of the hearing and explain the identity of the people present in order to place the child at ease; permit any party questioning the child to procure the assistance of an advisor who may, with the court's permission, conduct questioning; and finally, permit the child to testify from a position in the courtroom where the child is comfortable and supervise the spatial [Page 149]arrangements of the room and the location and movement of all people in attendance. These same factors should be taken into consideration when a child is expected to provide live testimony in front of a jury and a courtroom full of spectators.
Fourth, the American Bar Association's Guidelines for the Fair Treatment of Child Witnesses in Cases where Child Abuse is Alleged (July 1985) provides in part:
- In criminal cases and juvenile delinquency and child protection proceedings where child abuse is alleged, court procedures and protocol should be modified as necessary to accommodate the needs of child witnesses including:
- leading questions may be utilized under direct examination of child witnesses subject to the court's direction and control;
- to avoid intimidation or confusion of a child witness, examination and cross-examination should be carefully monitored by the presiding judge;
- when necessary, the child should be permitted to testify from a location other than that normally reserved for witnesses who testify in the particular courtroom;
- a person supportive of the child witness should be permitted to be present and accessible to the child at all times during his or her testimony, but without influencing the child's testimony.
Fifth, it is now axiomatic that a criminal defendant must have the services of an interpreter if the defendant does not understand or speak English well enough to confer with his lawyer or understand the testimony. State v. Neave, 117 Wis. 2d 359, 344 N.W. 2d 181 (1984).
Fairness requires that criminal defendants have the assistance of interpreters to avoid questions of effective assistance of counsel, whether inability to understand testimony resulted in a loss of the right to effective cross-examination, and to avoid the feeling of having been dealt with unfairly which may arise when language barrier renders all or part of the trial incomprehensive. Neave, at 365. It is time, and in the interests of justice to treat child victims and witnesses with equal respect. It is fundamentally unfair to expect a child to communicate in court on an adult level. Children are developmentally incapable of effectively communicating on an adult level—especially in court; just like the defendant who does not speak or comprehend English. We provide the means for defendants to effectively communicate in court and we should do the same for the child victims and witnesses.
Finally, there are sound policy reasons which not only permit, but actually instruct a court to limit the method and mode of interrogating child witnesses to age appropriate concepts. For example, the Wisconsin Supreme Court has opined:
[Page 150]The circuit court should, however, use the tools available to the criminal justice system to eliminate or lessen the burden on B.P. while making her testimony available in the criminal proceeding… B.P. is a child who has suffered greatly. The legal system should not add to her suffering…
A circuit court has power, within constitutional limits, to alter courtroom procedures to protect the emotional well-being of the child witness.
State v. Gilbert, 109 Wis 2d 5011, 516–17, 326 N.W. 2d 744 (1982). See also 3 Wigmore Evidence, § 781, at 173 (Chadborn ed. 1970) where
(a)n intimidating manner in putting questions may so coerce or disconcern the witness that his answers do not represent his actual knowledge on the subject…. So also questions which …cause embarrassment, shame, or anger may unfairly lead him to such demeanor and utterance that the impression produced by his statements does not do justice to his real testimonial value.
(Emphasis in original).
Dated this___ day of October 19___.
Kenosha County Courthouse
Kenosha, WI 53140-3747
Attorneys for Plaintiff
Appendix I: Speech Therapy Observations[Page 151]
_____ has been enrolled in speech therapy since May, 1988; she had been enrolled in the Early Childhood Program from May___ 1988 to June___ 1990.___ is presently receiving speech therapy in a small group setting three days a week at
_____ School. She is in the first grade where her teacher reports she is having difficulty in all academic areas._____ is receiving special instruction in a small group setting with the reading specialist.
_____ over-all language skills are delayed from six months to possibly three years in the area of expressive vocabulary. Her language skills are difficult to assess because of variances in behavior which may affect standardized test scores. When confronted with a situation in which she feels she is not succeeding,_____ reverts to immature behaviors which might include unselective pointing, inattention, and increased random movements.
_____ is a verbal child who enjoys talking, especially if she can control the topic. Self-initiated communication appears at a higher level than when asked direct questions. Informal testing, as well as teacher and speech therapist observations, suggest_____ functional language skills appear to be that of a child between four and five years of age. The more comfortable_____ is in a speaking situation, the more apt she is to express herself appropriately.
In eliciting information, the following guidelines will be helpful in helping _____ express herself more accurately:[Page 152]
- The importance of non-verbal communication should not be overlooked. If an intimidating voice (loud, harsh, sarcastic, etc.) is used to question_____, she may respond to that rather than the actual question. Facial expressions and other body language may be considered intimidating and cause_____ to respond inappropriately and/or immaturely.
- Questions should be stated in short sentences when possible. “Tell me about …” “Show me …” and “Tell me more” are more effective than long questions which may tend to be confusing (“What happened three months ago when you were at home?”)
- When questioning_____, speak at a slow rate of speech. Questions which are rapidly fired at her could be confusing and misinterpreted. Also,_____ should be given time to respond to the question. A brief latency period will provide_____ with time to process the question. Because of distractibility and inattentiveness, it may be necessary to repeat a question more than once. When possible, the same question should be restated in different words.
- The use of concrete vocabulary is critical to comprehension of any statement or question. Temporal (time) concepts are difficult for_____. She understands the days of the week and the concepts of yesterday and tomorrow. However, questions related to last month or last year are more abstract and could be confusing to_____. The concept of “remember” is also difficult for_____. A simple statement “Tell me about …” is more effective than “Try to remember what happened.”
On October 16, 19__,_____ was administered the Boehm Test of Basic Concepts. This test examines a child's ability to comprehend fifty basic concepts a child should know when entering first grade._____ comprehended 41 of the 50 concepts. Those missed included: beginning, below, medium-sized, forward, pair, skip, equal, in order, and least. The 41 concepts_____ did understand in the test situation included:
[Page 153]It would appear that_____ can communicate her experiences if concrete questions are asked using vocabulary which can be understood by a child of four to five years of age. Questioning should be presented in a non-threatening manner accompanied with a slow rate of speech.
A major concern of this speech therapist is that_____ may become unable to linguistically process questions as she becomes emotionally involved with the questions. She may elect not to express herself, become unable to answer, or begin engaging in immature behaviors, such as rocking in her chair, making “silly” comments, or covering her face with her hands in an attempt to avoid answering questions. I am sure these behaviors will be taken into consideration as_____ attempts to express herself verbally.[Page 154]
Appendix J: Motion in Limine Attachment[Page 155]Child Witnesses in Abuse CasesJULY 1985
BE IT RESOLVED, that the American Bar Association approves the “Guidelines for the Fair Treatment of Child Witnesses in Cases Where Child Abuse is Alleged”:A Team Approach
A Speedy Trial
- A multidisciplinary team involving the prosecutor, police and social services resource personnel should be utilized in the investigation and prosecution of cases where a child is alleged to be a victim or witness to abuse in order to reduce the number of times that a child is called upon to recite the events involved in the case as well as to create a feeling of trust and confidence in the child.
Members of such teams should receive specialized training in the investigation and prosecution of cases where children are alleged victims and witnesses of abuse.
Whenever possible, the same prosecutor should be assigned to handle all aspects of a case involving an alleged child victim or witness including related proceedings outside the criminal justice system.
[Page 156]Procedural Reform
- In all proceedings involving an alleged child victim, the court should take appropriate action to ensure a speedy trial in order to minimize the length of time a child must endure the stress of his or her involvement in the proceeding. In ruling on any motion or request for a delay or continuance of a proceeding involving an alleged child victim, the court should consider and give weight to any potential adverse impact the delay or continuance may have on the well being of a child.
[Page 157]Legislative Initiative
- In criminal cases and juvenile delinquency and child protection proceedings where child abuse is alleged, court procedures and protocol should be modified as necessary to accommodate the needs of child witnesses including:
If the competency of the child witness is in question, the court evaluate competency on an individual basis without resort to mandatory or arbitrary age limits.
Leading questions may be utilized on direct and cross-examination of a child witness subject to the court's direction and control.
To avoid intimidation or confusion of a child witness, examination and cross-examination should be carefully monitored by the presiding judge.
When necessary, the child should be permitted to testify from a location other than that normally reserved for witnesses who testify in the particular courtroom.
A person supportive of the child witness should be permitted to be present and accessible to the child at all times during his or her testimony, but without influencing the child's testimony.
The child should be permitted to use anatomically detailed dolls and drawings during his or her testimony.
When necessary, the child should be permitted to testify via closed-circuit television or through a one-way mirror so long as the defendant's right to cross-examine is not impaired.
Persons not necessary to the proceedings should be excluded from the courtroom at the request of the child witness or his or her representative during pretrial hearings in cases where the child is alleged to be the victim of physical, emotional or sexual abuse.
At pretrial hearings and in child protection proceedings the court, in its discretion, if necessary to avoid the repeated appearance of a child witness, may allow the use of reliable hearsay.
When necessary the court should permit the child's testimony at a pretrial or noncriminal hearing to be given by means of a videotaped deposition.
- State legislature should, where necessary, enact appropriate legislation to permit modification of court procedures and evidentiary rules as suggested herein and in addition should:
extend the statute of limitations in cases involving the abuse of children;
establish programs to provide special assistance to child victims and witnesses or enhance existing programs to improve the handling of child abuse cases and minimize the trauma suffered by child victims, in cooperation with local communities and the federal government.
- The public has a right to know and the news media have a right to report about crimes where children are victims and witnesses; however, the media should use restraint and prudent judgment in reporting such cases and should not reveal the identity of a child victim.
Special Legal Issues: Selected References[Page 159]George v. Commonwealth, 885 S.W. 2d 938 (Ky. 1994)—Closed circuit television: elements
The court held that the trial court committed reversible error when it allowed the appellant's daughter, a nonvictim witness, to testify via closed-circuit television. The statute applies only to victims, not witnesses.Guaranty Development Co. v. Liberstein, 83 A.2d 669 (DC 1951)—Judge's control of courtroom environment
“It is well settled that the mode of conducting trials and the order of introducing evidence are matters belonging very largely to the practice of the court, and a departure from the usual will not be a ground for reversal unless it appears it worked serious injury to the opposite party.”Hemphill v. State, 826 S.W. 2d 730 (Tex. Ct. App. 1992)—Anatomical dolls; videotaped depositions or testimony
Court properly admitted the videotaped testimony of the complaining witness, who was 4 years old at the time of the videotaping. Because the state called the witness during its case-in-chief and the defendant cross-examined him, there was no violation of the defendant's confrontation rights.
The author wishes to specifical ly thank senior attorneys Brian K. Holmgren and Victor Veith, from the American Prosecutors Research Institute, National Center for the Prosecution of Child Abuse (the nonprofit research and technical assistance affiliate of the National District Attorney's Association), for their enormous assistance in both critiquing and editing this book and by providingthe legal case information and citations for lawyers and court educators contained herein.[Page 160]Hicks-Bey v. United States, 649 A.2d 569 (DC 1994)—Closed-circuit television: constitutionality
This case concerned the judge's ability to control the conduct of the proceedings …to ensure that the proper decorum and appropriate atmosphere are established, that all parties are treated fairly, and that justice is done. Indeed, innovative trial procedures are acceptable as long as they are “administered carefully and meet the requirements of due process.”Hopkins v. State, 632 So. 2d 1372 (Fla. 1994)—Failure of trial court to make individualized specific findings; closed-circuit television: constitutionality
The trial court failed to make specific findings of fact that the child victim would suffer emotional or mental harm if required to testify in the presence of the defendant before allowing closed-circuit television testimony. The trial court merely adopted the testimony of the child's mother and the psychologist, who both claimed that the child would be emotionally harmed if forced to testify in open court, and the court made no individualized determination of necessity.Nunn v. State, 845 P.2d 435 (Alaska Ct. App. 1994)—Videotaped depositions or testimony
Defendant's conviction of second-degree sexual abuse of a minor was supported by properly admitted videotape of victim's interview with police detective, to show victim's demeanor when making statements inconsistent with trial testimony in which she recanted allegations of abuse by defendant.People v. Guce, 560 N.Y.S. 2d 53 (NY. App. Div. 1990)—Closed-circuit television: threats and trauma
To determine whether the use of closed-circuit television testimony was proper, the court examined several factors: The crime was committed in a particularly heinous manner; the child witnesses were particularly young (ages 6 and 8); the defendant, their father, occupied a position of authority with respect to the witnesses; there was an express threat by their mother that they would be responsible for the incarceration of their [Page 161]father and the dissolution of their family if they continued to cooperate with the prosecution; and the children felt abandoned by both their father and mother and would be particularly susceptible to psychological harm if required to testify in open court or in the physical presence of the defendant. Therefore, the record amply supported the use of live, two-way, closed-circuit television in this case.State v. Andrews, 447 N.W. 2d 118 (Iowa 1989)—Competence: generally; videotaped depositions or testimony
That trial court had previously determined that the 4-year-old child sexual abuse victim was competent to testify did not prevent the court from later determining that the victim was incompetent to testify at the retrial of the defendant. At the new trial, the judge found that the victim lacked the competency to be a witness because she demonstrated an inability to formulate intelligent answers or communicate impressions and recollections regarding the abuse; she was unresponsive to simple, straightforward questions; and she did not verbalize any independent recollection or details surrounding the alleged incidents. The court found that the trial court had properly recognized and accommodated the developmental limitations associated with a child of her age.State v. Barber, 494 N.W. 2d 497 (Minn. Ct. App. (1993)—Videotaped depositions or testimony
Evidence—including testimony of the 7-year-old alleged victim, videotaped interview, and victim's statements to mother consistently indicating defendant had inserted his finger into her vagina—was sufficient to support conviction of first-degree sexual conduct.State v. Crandall, 577 A.2d 483 (N.J. 1990)—Closed-circuit television: trauma[Page 162]
The trial court found that there was substantial likelihood of severe emotional upset and psychological upset and ruled that a psychiatric evaluation was not necessary for the court to reach that conclusion. The New Jersey Supreme Court held that the trial court's findings that the victim would be traumatized by testifying in the presence of the defendant were sufficient to justify the use of closed-circuit television. Expert testimony was not required to justify the use of closed-circuit television.State v. Johnson, 528 N.E.2d 567 (Ohio App. 1986)—Judge's control of courtroom environment
The trial judge did not only what he was authorized, but required, to do. He made a decision to exercise reasonable control over the mode of interrogating the infant-witness with a view to making the interrogation and presentation effective for the ascertainment of truth while protecting the witness from undue embarrassment.Stats v. Kirchbaum, No. 94-0899-CR, 1995 Wisc. App. LEXIS 672 (Wis. Ct. App. May 25, 1995)—Videotaped depositions or testimony
The court properly admitted a videotaped deposition of a child witness that was taken prior to a previous trial on the same charge at the subsequent trial.State v. Lomprey, 496 N.W. 2d 172 (Wis. Ct. App. 1992)—Anatomical dolls; videotape depositions or testimony
The court found that the admission of videotaped deposition—in which the alleged child sexual abuse victim manifested her fear of the defendant by withdrawing into a shell immediately upon the defendant's entrance into the room—did not violate the defendant's confrontation rights, and testimonial conduct was not hearsay but, rather, the functional equivalent of live, in-court testimony. The 3-year-old child's out-of-court testimonial acts, in undressing anatomically correct dolls and using them to illustrate the defendant's alleged sexual abuse, possessed sufficient indicia of reliability to satisfy confrontation clause requirements, where the child had never seen anybody having sexual contact and had no basis for knowing about such conduct, and a witness who recounted the child's actions testified that the child undressed the dolls spontaneously without any prompting from the witness.State v. Menzies, 603 A.2d 419 (Conn. 1992)—Judge's control of court environment
The court did not abuse discretion in permitting the guardian ad litem to sit with an 8-year-old victim during testimony where testimony from three witnesses supported the position that the presence of the GAL would facilitate in-court testimony.
The court also rejected the defendant's claim that the presence of the GAL enhanced the victim's credibility and heightened sympathy for her, noting that the trial court appropriately gave a curative instruction to the [Page 163]jury members that they were not to draw any inferences from this, and that the presence of a support person was to facilitate the testimony by placing the child at ease in the court setting.
In addition, the court upheld restrictions on people permitted to be in court during the child's testimony, the use of leading questions on direct, and restrictions on cross-examination pursuant to State's statutory provisions.State v. Rogers, 692 P.2d 2 (Mont. 1984)—Support person with child witness
Pursuant to Rule 611, the trial court was well within its discretion in allowing the 4-year-old victim to sit on the prosecuting attorney's lap. That posture assisted in directing the victim's attention to the questioning and provided comfort to her during a difficult and unfamiliar experience.State v. Twist, 528 A.2d 1250 (Me. 1987)—Unavailability; face-to-face confrontation: videotaped depositions or testimony
The court held that considerations of public policy and necessity warranted dispensing with direct, face-to-face confrontation between the defendant and the children at the time of the videotaping of their testimony. The defendant was concealed behind a one-way mirror, maintained constant communication with his attorney through audio hook-up, and was allowed to view the videotape simultaneously on a monitor. The court determined that the children were unavailable because they would suffer severe emotional trauma if required to testify; their testimony was sufficiently trustworthy because the children understood the serious nature of their testimony and the requirement to tell the truth; and there was corroborating evidence.United States v. Lyons, 33 M.J. 543 (A.C.M.R. 1992)—Disabled victim: competency; videotaped deposition or testimony[Page 164]
A deaf, mute, mentally retarded victim was found competent to testify. The victim's sign language vocabulary did not exceed 200 words, which she augmented by pointing, gesturing, and grunting. The court also admitted a videotape in which the victim reenacted the incident. The introduction of the videotape did not deny the defendant's right of confrontation because the victim was subject to cross-examination at trial. The defendant's cross-examination of the victim was effective because the victim was competent to testify.United States v. Thompson, 31 M.J. 168 (CMA 1990)—Face-to-face confrontation
The court has inherent authority to dispense with face-to-face confrontation upon proper showing of necessity. Two boys sodomized by their father were permitted to testify from a chair in the middle of the courtroom with their backs to the defendant.
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Monograph of the Society for Research in Child Development, 57(5). http://dx.doi.org/10.2307/1166127, , , , , , & (Johnson Institute. (1993). Tulip doesn't feel safe—Helping kids deal with unsafe situations [Videotape]. Minneapolis, MN: Author.1994). Journal of Interpersonal Violence, 9, 307–326. http://dx.doi.org/10.1177/088626094009003002, & (1992). False negatives in sexual abuse disclosure interviews: Incidence and influence of caretaker's belief in abuse in cases of accidental abuse discovery by diagnosis of STD. Journal of Interpersonal Violence, 7, 532–542. http://dx.doi.org/10.1177/088626092007004008, & (1994). The impact of court on children: Research findings and practical recommendations. Journal of Interpersonal Violence, 9, 238–257. http://dx.doi.org/10.1177/088626094009002007(1997). Preparing children for court: An interdisciplinary view. Child Maltreatment, 2, 150–163. http://dx.doi.org/10.1177/1077559597002002008, & (1996). 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About the Authors[Page 175]
Lynn M. Copen is President and Chief Executive Officer of Kid's Kourt, Inc. (http://kid's-kourt.com), a company that manufactures forensic court preparation products and aids for child witnesses and professionals who will educate child witnesses. She is also the Victim Witness Program Director for the Kenosha County District Attorney's Office in Keyman, Wisconsin, and has served in that role since 1981. She has experience in working with thousands of crime victims and witnesses, many of whom were severely traumatized. Prior to 1981, Ms. Copen served as a sworn law enforcement officer for the State of Wisconsin, where she investigated all types of crimes and crime scenes, interviewed hundreds of victims, and interrogated criminal suspects.
Ms. Copen was the first woman to graduate (with academic honor) from the police academy at Fort McCoy in Sparta, Wisconsin. Over the years, she has continued to study criminal behavior and victim/witness issues, has served as an expert witness at criminal trials, and has lectured on offender/victim issues at state and national conferences. In 1993, she was awarded U.S. Patent #5,201,660 for her invention, design, and implementation of a model miniature courtroom to be used as a tool for educating and preparing witnesses for courtroom and trial procedure.
Ms. Copen is a Board Certified Expert in Traumatic Stress (BCETS); a former Certified Law Enforcement Officer; and a member of the Association for the Treatment of Sexual Abusers (ATSA); National Organization of Victim Assistance (NOVA); American Professional Society on the Abuse of Children (APSAC); Wisconsin Professional Society on the Abuse of Children (WIPSAC); American Academy of Experts in Traumatic Stress (AAETS); Wisconsin Victim/Witness Professionals (WVWP); and Kenosha Domestic Abuse Intervention Project (KDAIP). She is a former member of the American Academy of Forensic Science, [Page 176]Illinois Academy of Criminology, Minnesota Society of Clinical Pathology, and Wisconsin Attorney General's Task Force on Child Abuse.
Thomas J. Fallon is an Assistant Attorney General with the Wisconsin Department of Justice, where he is assigned to the Criminal Litigation, Antitrust, and Consumer Protection Unit. He handles a wide variety of cases, from arson to racketeering. He currently specializes in sexually violent person proceedings and child abuse prosecutions. Prior to joining the Department of Justice in January of 1993, he was an Assistant and Deputy (First Assistant) District Attorney in Kenosha County, Wisconsin. As the chief felony prosecutor, he supervised other prosecutors and specialized in child abuse and drug prosecutions. As the Deputy District Attorney, he handled the administrative and personnel matters for the office. He is author of: “The Basic Do's and Don'ts of Interviewing.” NRCCSA News, 4(3), May/June 1995, published by the National Resource Center on Child Sexual Abuse of the National Center on Child Abuse and Neglect.